Successful DWI Post-Conviction Relief Motion

Posted on May 27, 2011 by Alexander M. Iler

The Iler Law Firm recently represented a client who sought to have his guilty plea for a DUI conviction vacated (set aside) based on a claim that his prior attorney was ineffective.  The client contacted our office and wanted to know whether he had any defenses to the DUI charge even though he had already pled guilty and had already started serving his sentence.  We explained to him what we believed were potential meritorious defenses to his case.  He told us that his former attorney never told him about any of those defenses.  He told us that if he knew about those potential defenses, he would have never pled guilty, and instead, would have insisted on taking this case to trial. Following a consultation, the client decided, based on our recommendation, to file a motion for post-conviction relief based on ineffective assistance of counsel.  We explained that if successful, this would not result in the charge being dismissed, but rather it would simply vacate his prior DUI conviction and restore the matter to the court's calendar and would allow him to proceed to trial.  We advised the client that he has several potential defenses, including (1) the state’s failure to produce an operator’s card for the officer who performed the alcotest; (2) the state’s failure to produce the operator’s card for the officer who performed the solution change prior to Defendant’s breath test; (3)  a possible technical defense in relation to the less than two minute lock-out between the control test and the first valid breath sample; and (4) the State’s failure to produce “data downloads”.  See  State v. Maricic, 417 N.J. Super. 280 (App. Div. 2010). The client insisted he wanted to take the case to trial and have the opportunity to assert these defenses at that time.

The Firm, on behalf of the client, wrote a brief to court arguing how the client's former attorney ineffectively represented the client and requested the client's guilty plea be vacated.  On the day of the motion, we argued to the judge that fundamental fairness requires that an attorney evaluate all possible defenses to a criminal charge.  We argued that the former attorney's failure to evaluate these defenses with the client was ineffective and the client was prejudiced as a result.  The prejudice, we argued, was that the client insisted he would have gone to trial if he knew about the potential defenses to his client, which he never knew about until he came to our office.

After oral argument, the judge ruled in our client's favor.  The client was very pleased because his driving privileges were restored that day and he now was able to take the matter to trial.  If you feel that you have been given ineffective assistance of counsel by your prior attorney in a DUI or DWI matter, contact our office for a free consultation to see how we can help.  You may be able to reopen your prior case, at which time you may be able to more properly defend your case.  Life has few second chances, a motion for Post-Conviction Relief may be one of them.  

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DWI Talk Given at NJ State Bar Association Meeting

Posted on November 18, 2010 by Alexander M. Iler

I gave a talk last night at the New Jersey State Bar Association, Municipal Court Section meeting in New Brunswick at the NJ Law Center.  The subject of my talk was the ongoing temperature probe issue related to the Alcotest machines in use in every municipality in New Jersey.  As some of you already know my firm has a case, currently at the appellate division, captioned State v. Holland.  In State v. Holland, we sought to suppress our client's Alcotest readings by objecting to the State's unilateral and unsanctioned substitution of the Drager Safety Ertco Hart temperature probe, which has been sanctioned by the New Jersey Supreme Court, with a Control Company temperature probe.  See our previous post

here

on this issue.  

 

What really amazed me about the presentation was that I got the impression that lawyers who do DWi defense work are still not using this as a routine part of their defense.  In addition, I had occasion to speak to a municipal court Judge who sits in Passaic County who said that in the three towns he sits in no one has brought up the issue yet!  This amazes me, as this is such a simple defense which when handled properly, can often get the readings out and reduce a client's sentence from a 7 month suspension to a 3 month suspension.

 

As Jeff Gold, Esq., my co-presenter at the lecture said, this is really a three tiered defense to a DWI with readings.  First, the defense attorney makes the basic argument that the State has failed to provide one of the foundational documents, and therefore the readings should be suppressed.  Failing that, the attorney moves on to stage two of the defense which is to mount a technical defense case and really point out to the judge the technical differences between the two devices and why the Ertco Hart is a superior device.  And, failing that, the defense attorney needs to be prepared to take the case up the ladder on appeal after a full blown trial.  Too many municipal court practitioners are all too willing to just put a plea through when they can be fighting this issue to the end for their client.  Hire a lawyer who is willing to go to the mat for you, it may cost a little extra, but is well worth the results you will achieve.  The lawyers at the Iler Law Firm are willing to go that extra mile for you.

 

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The Defense of "Involuntary Intoxication"

Posted on February 25, 2009 by Alexander M. Iler

A Dover man who is charged with drunk driving and two counts of first degree aggravated manslaughter in the death of two teenagers is attempting to use "pathological intoxication" or "involuntary intoxication" as a defense to the aggravated manslaughter charges. This defense attempts to show that the Defendant became regularly intoxicated to the point where he had no control over his alcohol addiction and, therefore, no control over his actions.

The proffered defense is meritless with regard to his driving while intoxicated (DWI) charge. If the state can show that his blood alcohol content (BAC) was above the legal limit and that he was operating a vehicle at the time, he is guilty of drunk driving in New Jersey. However, the "pathological intoxication" defense may be helpful against the aggravated manslaughter charges.

Voluntary intoxication is not a defense to criminal charges. Thus, the fact that the defendant was drunk is typically irrelevant to the criminal charges against him or her. However, experienced criminal defense attorneys will sometimes assert an involuntary intoxication defense. This defense strategy typically requires proof (1) that the individual was an addict and was typically inebriated and (2) that the individual was inebrated at the time of the criminal act. In this case, the Defendant's blood alcohol level at the time of the accident was .305, nearly four times the legal limit in New Jersey of .08 BAC. In theory, defense counsel will argue that the defendant is "ill" and did not have the requisite mental capacity to commit a criminal act at the time of the incident. This is similar to an insanity defense. However, this is a very difficult defense to prove and the likelihood of success is marginal.

The "involuntary intoxication defense" is an extremely slipperly slope. The law bans a defense of voluntary intoxication because society does not want individuals avoiding criminal prosecution because they were intoxicated. The claim that "I was drunk so I hit my wife" should never be allowed to stand. As a result, if the court allows an expansive view of the "involuntary intoxication" or "pathological intoxication" defense it could come dangerously close to a defense of voluntary intoxication. To allow a defendant a defense because he got drunk and drove every day of the week instead of once a month does not seem like a justified result.

For additional information on this case, see Pathological Intoxication Defense in NJ.

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