New Jersey Criminal Defense Journal : New Jersey Criminal Defense Lawyer & Attorney : Alexander M. Iler Law Firm : Monmouth County NJ DWI & Drunk Driving Defense

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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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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A decision came down from the Appellate Division last week regarding a defendant's right to a speedy trial in a drunk driving or driving while intoxicated (DWI) case in New Jersey. In State v. Tsetsekas, the Appellate Division held that the defendant's right to a speedy trial was violated when the State repeatedly failed to bring him to trial and there was an extensive delay in adjudicating his DWI charge. This is a violation of his due process rights in New Jersey. This extensive delay, almost one-year to prosecute the defendant for drunk driving, was based on the State's inability to provide discovery evidence (a videotape) and the State's failure to subpoena witnesses and prepare for trial. The State received four adjournments for the failure to provide the discovery evidence and at least three more were granted based on the State's witnesses (the State troopers) failure to appear at trial. As a result, the Appellate Division dismissed the charges against the defendant based on a violation of his due process rights and a violation of his right to a speedy trial in New Jersey. For a complete copy of the judicial opinion, see the New Jersey Judiciary website.

The Iler Law Firm currently has an appeal out of Morris County that is strikingly similar to this case. In our case, the Morristown Municipal Court took approximately 405 days to prosecute our client for driving while intoxicated (DWI). The reason for this extensive delay was the State's failure to provide basic discovery evidence which included the certification card of the officer who operated the breathalyzer machine and the videotape evidence of the field sobriety tests. Without the certification card, the breath test readings are inadmissible and the State can only try the case on the physical tests. However, without the videotape, it would also be very difficult for the State to try the case on the physical tests. As a result, the State requested and received a half-dozen adjournments to provide this discovery evidence. In fact, defense counsel requested and received a "try or dismiss" marking on one occasion and the Court failed to dismiss the case on the next listing and granted the State yet another additional adjournment. Thus, this new Appellate Division decision should really help our case and our argument which is scheduled in February before the Appellate Division in Trenton. I will keep you updated as to how the case finally turns out.

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