Ricci’s Law – New Jersey Ignition Interlock

On January 15, 2010, the New Jersey DWI and Refusal Statutes were amended by “Ricci’s Law.” The law requires the installation of an Ignition Interlock Device (see N.J.S.A. 39:4-50.16) for a set period of time on all vehicles principally driven by the defendant in the following cases: (1) Refusal Convictions, (2) Repeat DWI-Convictions, and (3) DWI convictions where the blood alcohol level was .15% or higher.

The Ignition Interlock is a breath-testing device that attaches to the vehicle. The device prevents the vehicle from starting if the registered BAC exceeds 0.05%. For more information about the Ignition Interlock device, see the NJ MVC Page here:  www.state.nj.us/mvc/Violations/dui_Ignition.htm

I was interviewed for a radio show about the legislation when it was pending. I said that I believed the law was adding another layer of expense to a conviction that is already an enormous cost to defendants. The middle and working class defendants (and their families) will be the ones most impacted. The rich will be able to sustain the cost (although they can also be impacted by the penalties of a DWI conviction already – like losing their licenses and jobs). Under the Legislation, poor defendants will not have to pay the monthly either cost of the device or will pay a reduced fee. Who will pay pick up the overage – you guessed it; NJ taxpayers. The New Jersey middle class defendant (and his/her family) is likely to sustain the brunt of this new Legislation. No work or conditional licenses, increased insurance rates for three years, three-years of $1,000.00 surcharge bills — etc. – now this; it seems like proverbial “overkill.”

One issue that has arisen is whether the statutory changes apply to cases that occurred before the law went into effect. I had Judges rule differently in two cases I handled recently. I believe that imposing the sentence to cases that occurred before the law was enacted is “ex post facto” and accordingly, unconstitutional.

Article I, section 10, clause 1 of the United States Constitution provides that “[n]o State shall … pass any … ex post facto Law….” Article IV, section VII, paragraph 3 of the New Jersey Constitution imposes a similar prohibition: “[t]he Legislature shall not pass any … ex post facto law….” A statute violates the Ex Post Facto Clause if it imposes a punishment for an act that was not punishable at the time it was committed, imposes additional punishment to that then prescribed, or deprives a defendant of any defense available under the law when the crime was committed. see generally State v. Muhammad, 145 N.J. 23, 56 (1996).

I filed a Motion to Amend the Sentence (in the case where the Ignition Interlock was imposed retroactively, and I believe unconstitutionally). The Court agreed with my position, amended the sentence, and thus eliminated the Ignition Interlock. The Ignition Interlock would have been an inconvenience, added expense, and embarrassing for my client.

My client and I were pleased (and relieved) that the Court re-considered the issue. The Judge had the courage to change the Court’s original sentence. The just result for my client, accomplished through intellectual debate and advocacy, was a testament to the principles of United States jurisprudence. The Order is attached below:

Greggory M. Marootian, Esq.
Livingston, NJ 07039
Office: 1-973-994-3732
Cell: 1-201-404-8990
Fax: 1-973-994-2239

The Smart Consumer Guide To NJ DWI Lawyers

HIRING A NJ DWI LAWYER – THE SMART CONSUMER GUIDE

FOUR THINGS THAT YOUR LAWYER MIGHT NOT WANT YOU TO KNOW

By: Greggory M. Marootian, Esq.
 
“An Educated Consumer is Our Best Customer” was the slogan used by Syms, a successful NJ clothing retailer. Choosing a Lawyer for a NJ DWI charge involves trying to become generally educated about a profession and system which many people have limited knowledge of. The following is a list of things that a lawyer might not want you to know.
1. The Lawyer Has Limited Knowledge Of New Jersey DWI Law. Smart Money magazine published an article called “10 Things Your Lawyer Won’t Tell You.” Among the 10 Things was that the lawyer does not know the area of law for which he was hired. Below is an expert from the article:
Ask an attorney about anything outside his niche, and odds are he won’t know much. Teacher Marie Karim learned that when she decided to sue the New York City hospital where she had developed an infection and a hernia during exploratory surgery in 1999. Karim hired Sheri B. Paige because her mother had once consulted the Norwalk, Conn., lawyer about collecting a debt. Karim says Paige assured her that she had experience with medical malpractice cases.
More than a year later, Karim says she discovered that Paige had virtually no such experience and that she hadn’t even filed the suit. Worse yet, the statute of limitations had run out. “I wanted to kill her,” says Karim, who got $325,000 from Paige’s insurance company in 2002 with assistance from a specialist in legal malpractice. Paige denies all wrongdoing and blames the entire mess on Karim. But in November 2002, a Connecticut lawyer grievance panel found probable cause to believe that Paige was guilty of misconduct, and she was disbarred in 2005.
Moral of the story: Karim should have hired an expert in the area of law she needed—someone who does almost nothing but medical malpractice.
2. The Lawyer Has Never Actually Taken A DWI Case To Trial Or Has Limited DWI Trial Experience. Believe it or not, there are lawyers who handle DWI cases who have never actually tried a DWI case. There are lawyers who have been in practice for many years who have never even tried a single DWI case or have only tried a few DWI cases over their careers.
As much as a lawyer has been taught in school and from books, the simple reality is that you cannot teach experience, and you cannot teach expertise. I learned to drive a car in High School sitting at a simulator and then behind the wheel with a driving instructor and with my father. There are simple skills (like turning the wheel, stopping, and using the pedals and blinkers) that can be mastered during training. However, the true “learning to drive” comes from years of being on the road with other drivers, in varied weather and traffic conditions, and even navigating around (and surviving) danger. Similarly, trying numerous DWI cases gives a range of experience and expertise that simply cannot be duplicated.
There are lawyers who have a lot of trial experience, but they have none or little DWI trial experience. These lawyers may have tried injury cases, contract dispute cases, even murder and other criminal felony cases. They may even be “certified” criminal or civil trial lawyers. But, their trial experience is in trials other than DWI trials.
I am a baseball fan (Yankees for anyone who wants to know). In 2009, the New York Mets placed Daniel Murphy, a natural third baseman, at first base. Murphy, a very talented athlete, and a solid third baseman struggled at the new position. Baseball pundits, talking about the switch and Murphy’s troubles, agreed that playing third base and first based are markedly different positions requiring many different skills. Despite his natural skills, Murphy’s lack of experience as a first baseman caused him to flounder at the position. Similarly, trying and focusing on DWI cases affords experience that cannot be duplicated by trying other types of cases.
3. The Lawyer Has Never Won A DWI Case On Appeal Or Even Appealed A DWI Case. Trying cases sometimes requires that an adverse verdict or ruling be appealed. An appeal is a request to a higher court to change a lower court decision. In a New Jersey DWI case, the Court structure is (from bottom to top): (1) Municipal Court, (2) County Superior Court, (3) Superior Court Appellate Division, and (4) New Jersey Supreme Court.
Appeals are intricate. Knowledge of the substantive law, experience in actual DWI trials, and lastly, knowing the appeals process are important.
4. The Lawyer Regards Your DWI Case As “Small Potatoes”, And Will Pass It Along To A Low Rung Associate, Or Pay More Attention To His Bigger Cases. Some firms that handle large cases (example, criminal felony type cases, and large personal injury cases) also take DWI cases. Some regard a DWI case as a “minor” case. Some will pass the case along to a young, inexperienced associate so that they can pay attention to the “bigger” cases, or give the file less attention.
As you get “educated” about the law, the process, and the legal profession, you should know whether your attorney:
1. Has he tried at least 100 DWI cases from start to finish?
2. Has won DWI cases after a full trial?
3. Has won DWI cases on appeal at the County level and in the Appellate Division?
4. Has written about DWI Law?
5. Will be the attorney who will handle your case?

New Jersey DWI Trial & Appeal

In October 2009, I blogged about a NJ DWI trial I handled:

The State claimed a blood alcohol concentration of .25% through a direct blood draw (as opposed to a breath reading). The laboratory technician who analyzed my client’s blood was not called as a witness by the State (she was not available). I argued that based on the prevailing law, the certified laboratory result (purporting to show her blood alcohol concentration) was therefore inadmissible “hearsay.” (For a general definition of hearsay, see: http://en.wikipedia.org/wiki/Hearsay) The Municipal Court rejected that argument, and over my strenuous objection, admitted the laboratory certificate into evidence.
My client appealed. In January of this year, I appeared before the Honorable Harold W. Fullilove in the Essex County Superior Court in Newark for the appeal hearing. Judge Fullilove reversed the ruling of the Municipal Court, and entered a Not Guilty finding to the DWI. The Court’s Letter Opinion and Order are attached. I have, out of respect and decorum, omitted the Municipal Court and the Judge.

Unfair NJ DWI Trial Ruling & Appeal

I had a lengthy dwi trial this week. My client was charged with dwi following a roll-over accident. The police took her to the hospital where a nurse withdrew her blood. The State claimed a blood alcohol concentration of .25%.

The trial was troubling. The laboratory technician who analyzed my client’s blood was not called as a witness by the State (she was not available). This made her certified laboratory result (the analysis of her blood for alcohol) inadmissible “hearsay.”

The Judge allowed the laboratory certificate into evidence despite clear authority that prohibits the introduction. I have always despised injustice. I get passionate in the face of injustice. The Court’s ruling was quite disturbing. There is New Jersey legal authority supporting the defense position that the laboratory certificate is inadmissible without the technician being available for cross examination. From a constitutional point of view, the Defendant has a right to confront the accuser – thus, since a document cannot be cross-examined, the facts contained in the document cannot be admitted against a defendant.

In addition to New Jersey Law, there was a recent United States Supreme Court case, Melendez-Diaz v. Massachusetts, that without question, prohibits the introduction of a laboratory certificate without producing the laboratory technician.

My client was found not guilty of careless driving, and not guilty of dwi based on the observations. She was however, found guilty of dwi but based only on the laboratory certificate showing her blood alcohol concentration. The guilty finding was based solely on a document that was improperly admitted. The sentence was, at my request, held in abeyance (“stayed”) pending an appeal. I am 100% confident that the conviction will be overturned.

The trial, and the injustice, took a lot out of me. I had to take some time off to decompress from my disappointment and disgust. I felt terrible for my client who I believe got shafted by the system. The Court’s ruling was so clearly against the prevailing law – not just any law, but United States Supreme Court Law! I took some time off and spent it with my wife and two kids. I closed my office and took in a Yankee game with one of my daughters.

I am heading back into my office to file the appeal. I will post the result. I am very confident the final ruling will be a reversal.

Greggory M. Marootian, Esq.

_____________________________________

A prosecutor has a unique position in the criminal justice system. His chief duty is “to see that justice is done” not merely to convict defendants. State v. Ramseur, 106 N.J. 123, 320 (1987). With that in mind, I wrote the following letter to the Prosecutor in this case (I omitted his name, and the County where the case is pending). You are free to speak your mind and comment:

Dear Mr. *************
I am filing a De Novo Appeal from the September 29, 2009 conviction in the above matter(s). Obviously, I disagree with the Court’s ruling that allowed the laboratory certificate to be entered in evidence without the presence of the laboratory technician.
I am puzzled by the State’s position. I am baffled (and frankly bothered) that the State would seek to introduce the certificate into evidence in light of the prevailing law on the issue.
I am enclosing a copy of the United States Supreme Court decision in Melendez-Diaz v. Massachusetts, which I cited and referred to on September 29, 2009. That case is directly on point and disallows the introduction of the laboratory certificate without the technician being present.
In the interests of justice and morality, I would ask that you formally take a position with the ******* County Prosecutor’s Office for this appeal. In light of Melendez-Diaz v. Massachusetts, the State successfully and erroneously moved (over defense objection) the blood test results into evidence. I will await your review and reply.

Fair NJ DWI Trial

A Texas Appeals Court denied the appeal of Charles Dean Hood, a Texas death row inmate. The defense argued that the trial was tainted because the trial Judge was having a romantic affair with the prosecutor.

The defense argued that the affair tainted the trial, and resulted in “obvious and outrageous violations” of Hood’s constitutional rights. “No one would want to be prosecuted for a parking violation — let alone for capital murder — by a district attorney who is sleeping with the judge,” one of Hood’s attorneys said. “We are outraged by this breakdown in the integrity of the justice system. … Mr. Hood is entitled to a new trial before an impartial judge and a fair prosecutor.”


Many former prosecutors and federal and state judges, after hearing about the affair, signed a letter sent to the Governor stating that the sexual relationship “would have had a significant impact on the ability of the judicial system to accord Mr. Hood a fair and impartial trial.”

The Texas Court ruled that Hood’s attorneys should have brought the issue to the Court’s attention sooner. However, Hood’s attorneys explained that they could not because the affair was kept secret. The affair was apparently an open secret – and Hood’s trial lawyers heard rumors and innuendos about the affair.

Apparently everything is bigger in Texas, including the injustice. The constitution ensures criminal defendants a fair and impartial trial. This right is embodied in the 5th Amendment to the United States Constitution which provides that “No person shall be … deprived of life, liberty, or property, without due process of law.” My Criminal law Professor defined “due process” as simply “fundamental fairness.”

In New Jersey, a DWI is regarded as a traffic violation; however, the same protections that apply to a criminal defendant apply to a NJ DWI Defendant. In this regard, a DWI is often referred to as “quasi-criminal.” A Defendant is entitled to a fair trial before an impartial judge. New Jersey Court Rule 1:12 provides that a “judge of any court shall be disqualified … when there is any … reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.”

It is clear that if a Judge is sleeping with the Prosecutor, the Judge should not hear any cases prosecuted by her lover. Even if she could somehow put her blinders on and disregard the intimacy between her and the Prosecutor, under New Jersey law, that would not be enough. Under New Jersey Law, a “judge … shall be disqualified … when there is any … reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” The appearance of bias alone warrants disqualification.

The Texas case is disturbing. Even assuming that the trial lawyers knew about the affair (and they could therefore have raised the issue before the trial), the Defendant’s Constitutional rights were still violated. The 6th Amendment to the United States Constitution ensures defendants the right to effective legal counsel. The trial was clearly tainted by a Judge who appeared biased. The failure to move to disqualify the Judge by trial counsel deprived the defendant of a fair trial. This is certainly a troubling case and ruling.

Greggory M. Marootian, Esq.