The Element of Operation (vs. Driving) in A NJ DWI Prosecution

N.J.S.A. 39:4-50(a), the DWI Statute, prohibits “a person who operates a motor vehicle while under the influence . . . .” The statute does not define “operation.” Case law has over the years, defined operation. Case law, distinguishable from statutory law, is a reported decision from a higher court that interprets statutory law.

New Jersey Courts (case law) have construed operation as it applies to the DWI Statute broadly, broader than “driving” in the classic sense. In other words, the State in a NJ DWI prosecution does not have to present a witness who saw the defendant “driving” to prove “operation.”  Generally, there are three ways for the State to prove operation in a NJ DWI prosecution: (1) observation of a defendant driving, (2) defendant’s admission (of driving), and (3) circumstantial evidence that the defendant drove the vehicle to the place where found, or that the defendant intended to move the vehicle.

The State is required to prove each element of their case, including the element of operation, beyond a reasonable doubt. This burden never shifts (to the defendant). Many defendants believe that they must disprove the State’s version of a case. This mindset is wholly inaccurate and can lead to an ineffectual defense where for example, a defendant takes the stand when the State has not even met their legal burden of proof.

The third method of proof above (that the defendant drove or intended to drive) often presents fact-patterns that fall within the proverbial gray area of the law, and are thorny for courts, the prosecution, and defense. These cases are very fact-sensitive. In other words, whether the State can prove operation is highly contingent on the particular set of facts. For example, if a defendant is intoxicated behind the wheel of a car in a position other than a normal position for parking (e.g. on the shoulder of the Parkway, or in the middle of a roadway), courts have found sufficient circumstantial evidence of operation. Courts have also found operation where a defendant puts the keys in the ignition and shows evidence of an intent to move the vehicle.  Conversely, Courts have ruled against the state and for the defense where the evidence does not establish intent to drive, but something else, like simply keeping the engine warm while sitting in the car. Courts have found insufficient evidence of operation where the defendant was behind the wheel of a car parked lawfully in a driveway sleeping with the engine off (because for example, a reasonable alternative explanation is that the defendant could have simply come out of the house to “sleep it off” with no intent to drive). Courts have also found insufficient proof of operation where the defendant was behind the wheel of a parked car but did not have a “present intent” to drive.

Cases involving cars that are not “moving” (i.e. driven in the classic sense) are extremely fact-sensitive. Again, the State (the prosecution) has the constitutional burden to prove every element of a DWI offense, including “operation,” beyond a reasonable doubt. A not guilty finding (or a dismissal) is possible if these cases are handled and analyzed properly.


Greggory M. Marootian, Esq.
154 South Livingston Avenue
Suite 101
Livingston, NJ 07039
Cell: 201-404-8990
Office: 973-994-3732
Fax: 973-994-2239
Email: gmmesq@aol.com

Morality Of NJ DWI Defense Lawyers

Recently, a prosecutor who I do not know well took a jab at me, a passive aggressive innuendo, questioning the morality of those who defend drunk drivers who “go out there and kill people.” I then thought of another prosecutor who once questioned the ethics of defense lawyers. He used his religion to support his position that defense lawyers lack a spiritual compass, and prosecutors are morally superior.  This made me ponder and even question the morality defense lawyers and my chosen profession. I ultimately came to my senses.

First, regarding religion, the major Abrahamic religions (Judaism, Christianity, and Islam) regard justice as an important virtue. All man/woman is imperfect. I doubt, therefore, that any interpretation of religion would favor allowing the police and prosecutor alone to use their power without restraint. Some people know and quote religion and use it to judge others. Their actions are in deep contrast to religious teachings. In other words, they talk the talk but do not walk the walk. As my father once said, look to a person’s actions, not their words.

I say to anyone using religion to question the morality of defense lawyers, stop being so “pious.” Charles Reade, a non-practicing English Lawyer (June 1814 – April 1884) aptly defined being “pious” as “marked by conspicuous religiosity a hypocrite—a thing all pious words and uncharitable deeds.” I have witnessed injustice and moral decay in the system at times, from prosecutors, and particularly the “pious” one who once questioned my morals.

Second, I thought of the alternative that my colleagues would prefer, a system without defense lawyers. The police and prosecutor can determine who is guilty because they are morally superior. There would be no need for proof beyond a reasonable doubt, fair and impartial judges or the due process (fundamentally fair process) of law. What can possibly go wrong with allowing the police and prosecutor to dispense their powers as they see fit? The police and prosecutor have immense power. Defense lawyers are necessary to assure that this power is dispensed justly.

Last, I try not to be “pious” (a hypocrite) although it is hard (even impossible) for me not to judge some people. All humans are imperfect although for me, manipulative people, men who abuse/assault women, people who hurt kids are some on my list of people who I find it hard not to judge. Most clients charged with DWI, are in a dark period, many feeling alone, depressed, anxious, ashamed and embarrassed. For my colleagues on the “other side” of the system, I say, we are all part of the same system and on “one side” of justice. I am happy to say that in my 26-years as a defense lawyer, I respect the vast majority of prosecutors, police officers and judges who are honorable and straightforward. Also, remember the words of Abraham Lincoln; “I have always found that mercy bears richer fruits than strict justice.”


Greggory M. Marootian, Esq.
154 South Livingston Avenue
Suite 101
Livingston, NJ 07039
Cell: 201-404-8990
Office: 973-994-3732
Fax: 973-994-2239
Email: gmmesq@aol.com

Lying to Convict A NJ DWI Defendant

In a February 2, 2013 New York Times Editorial, Professor Michelle Alexander, Esq., answers the question “Why Police Lie Under Oath.”

I am currently handling a DWI appeal. The testimony presents a classic case of police lying to obtain a conviction. The police violated my client’s constitutional rights. The violation was inadvertent due to a recent shift in NJ DWI law.  Rather than conceding the mistake, they engaged in a classic cover-up by presenting false testimony. My client summed it up by asking me why the cops could not just concede their mistake, use it as a learning tool and move forward. I left court and drove to another NJ Municipal Court that evening. I watched a short trial. The arresting officer conceded an error during his testimony. This was not easy for him to look less than perfect in open court.  Watching the trial was a refreshing contrast to the judicial darkness I left hours earlier.

The culture among some police, with the approval of Courts, is “Machiavellian.” Niccolò di Bernardo dei Machiavelli was, among other things, a writer and philosopher during the Renaissance. His writings are captured in the term “Machiavellianism”; deceit is justified to maintain power – morality has no place in achieving practical goals – deceit is necessary. When I asked the Prosecutor if he felt good about how the State’s case “went in”, he said, “your client is a 3rd offender.” In other words, the ends justify the means.

In her editorial, Professor Alexander, discusses confirmed “patterns of deceit” in New York where, according to the Bronx District Attorney, “it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests … police officers provided false written statements, and in depositions, the arresting officers gave false testimony.” One New York Judge, Gustin L. Reichbach said, “this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Why do some police lie? Professor Alexander explains, “Because they can.” They know that when it comes to their word against the word of a defendant, the Court will always believe the cop. For defendants, especially poor minorities, “Police know that no one cares about these people.” Professor Alexander also discusses the rewards to police for making arrests – i.e. the financial incentives – follow the money.  Is this what our country has become? America should be a beacon of greatness – of morality. It is troubling and embarrassing to see this moral decay in our country.

Of course, “Exposing police lying is difficult largely because it is rare for the police to admit their own lies or to acknowledge the lies of other officers. This reluctance derives partly from the code of silence that governs police practice and from the ways in which the system … is structured to reward dishonesty.” Professor Alexander poignantly notes, “The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become.”

For minorities and the poor, the impact of lying takes the harshest toll. This phenomenon, known as “testilying“, can however, adversely affect anyone who happens to be ensnared, including a NJ DWI defendfant.

Municipal Courts – Judicial Independence

NJ Municipal Courts have jurisdiction to hear traffic offenses, including DWI (N.J.S. 39:4-50). “It is through the Municipal Courts that most citizens in the State come into contact with the judicial system.” “[I]t is from their experience in the Municipal Courts that most people base their conclusions about the quality of justice in New Jersey.” (http://www.judiciary.state.nj.us/mcs/history.htm).

The “Vision Statement” of NJ Municipal Courts (http://www.judiciary.state.nj.us/mission.htm) provides that the Municipal Court system is “an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State.” The vision is to be a “system, characterized by excellence that strives to attain justice for the individual and society through the rule of law … [to] earn the respect and confidence of an informed public.” The “Core Values” are: (1) Independence, (2) Integrity, (3) Fairness and (4) Quality Service.

These are ideals – they are visions – constitutional aims if you will. In the movie “The Verdict”, lawyer Frank Galvin (played brilliantly by Paul Newman) said to a jury: “[The] marble statue[s] … the trappings of the court … are just symbols of our desire to be just.” “They are…they are, in fact, a prayer … [a] fervent and a frightened prayer.”

“The Due Process Clause of the [U.S.] Constitution prohibits deprivations of life, liberty, or property without fundamental fairness through governmental conduct that offends the community’s sense of justice, decency and fair play.” Moran v. Burbine, 475 U.S. 412, 432-34, 106 S.Ct. 1135, 1146-48 (1986). This is based upon the premise that, “[D]ue process of law is a summarized constitutional guarantee of respect for those personal immunities which . . . are so rooted in the traditions and conscience of our people so as to be ranked as fundamental.” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205 (1952).

In order for constitutional guarantees to mean anything, Judges are empowered to act with independence. This means a Judge is a neutral arbiter, separate and apart from the Legislative and Executive branches of government.  This is a vital to dispensing justice in NJ Municipal Courts and our country.

In 1788, Alexander Hamilton, discussing the ratification of Constitution in “The Federalist” (aka “Federalist Papers”), discussed the importance of judicial independence.  He said, “the general liberty of the people can never be endangered … so long as the judiciary remains truly distinct from both the Legislature and the Executive.” Judicial independence “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure … the citadel of the public justice and the public security.” “The complete independence of the courts of justice is peculiarly essential … [w]ithout this, all the … rights or privileges would amount to nothing.” Hamilton said, “[i]f … the courts of justice are to be considered as the bulwarks of [the] … Constitution …, nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

Almost 200 years later, in State v. Paris, 214 N.J. Super. 220, 225 (Law Div. 1986), New Jersey Superior Court Judge Haines, a brilliant jurist, reminded and instructed NJ Municipal Courts that “[i]n our system of justice, judges act independently … [t]hey must if the court system is to maintain integrity.” Id.  Judge Haines instructs, “[l]iability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of [the court’s] freedom, and would destroy that independence without which no judiciary can be either respectable or useful.” Id. (citing Bradley v. Fischer, 80 U.S. 335, 347; 20 L.Ed. 646 (1871).

The Constitution is the foundation of our system of justice. It is in fact, the foundation of the United States. The Municipal Court Vision Statement (to be “an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State”) is embodied in the very spirit of our country. The vision statement is, as lawyer, Frank Galvin said in “The Verdict”, “our desire to be just.”

In the Municipal Court, Judges are empowered and indeed, required to act with independence – in order to be what Alexander Hamilton called, “the bulwarks of [the] … Constitution.” The Judge’s role is indeed, as Hamilton said, an “arduous  … duty.” It is not and cannot be a mere “vision” or hope, but an imperative – a commandment if you will, necessary to ensure the proper functioning of the Government.

A DWI offense in NJ is not a “crime” – it has been classified as a “quasi-criminal” offense. That term is used in the context of a defendant’s rights to constitutional protections, for example, the right to a speedy trial, the right to receive discovery and the right to due process. A defendant charged with DWI in New Jersey is entitled to the same constitutional guarantees afforded to any defendant in the criminal justice system.

NJ Municipal Court Judges, must protect every defendant’s rights – an “arduous … duty.” Otherwise, the system becomes an unconstitutional assembly line. “Better a little with righteousness than much gain with injustice” (Proverbs 16:8).

I am offended when people use the term “technicality” when referring to a constitutional issue or defense. A technicality is an obscure rule buried in main text, often in a small footnote, only understood by experts. The Constitution is not a technicality. It is a fundamental legal framework – forming the very foundation of our Country.

NJ Municipal Court Judges are empowered and required to undertake their “arduous … duty” with independence. This is as Alexander Hamilton said, “an indispensable ingredient [to the] constitution, and, in a great measure … the citadel of … public justice and … public security.” Hamilton explained that “[t]he complete independence of the courts of justice is peculiarly essential … [w]ithout this, all the … rights or privileges would amount to nothing.” Over 200 years ago, Hamilton was making as Lawyer Frank Galvin from “The Verdict” said, “a prayer … [a] fervent and a frightened prayer.”

NJ DWI – Speedy Trial

I field a lot of inquires from defendants regarding the length of time their DWI case is taking (or took to conclude) – and whether these delays are grounds for a dismissal.

Many clients confuse the unrelated concept of statute of limitations (N.J.S.A. 39:5-3) with the constitutional right to a speedy trial. N.J.S.A. 39:5-3 is the limitation period within which a Complaint can issue and process must be served for motor NJ vehicle violations including DWI (N.J.S.A. 39:4-50). A DWI Complaint, for instance, must be issued and served within ninety days of the alleged offense. A right to a “speedy trial” however is a right guaranteed to defendants by the Constitution to have an offense speedily concluded

Below is an overview of the issue (speedy trial) in the context of a NJ DWI charge. Remember, every case is different and fact sensitive. Presenting this defense issue, like much of the law, is as much art as it is science.

In State v. Cahill, 213 N.J. 253 (2013), the New Jersey Supreme Court examined the constitutional right to a speedy trial in the context of a DWI charge. The Court instructed, “[p]rompt disposition of criminal or quasi-criminal charges addresses the interest of the accused to be treated fairly … and prevents prejudice to the accused.” Id. at 276.

Courts should assess “four non-exclusive factors” to determine if a defendant’s constitutional speedy trial guarantees have been violated: “length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant” Id. at 264.; see also State v. Farrell, 320 N.J. Super. 425 (App. Div. 1999); State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009).

The Length of the Delay

 “There is no set length of time that fixes the point at which delay is excessive.” State v. Tsetsekas, 411 N.J. Super. at 12. In Cahill, the Court instructed that a gauge to a “presumptively prejudicial” delay is “the amount of time customarily required to dispose of similar charges.”  State v. Cahill, 213 N.J. at 265.

The Cahill Court referred to New Jersey Supreme Court Justice Wilentz’s July 26, 1984 Directive #1-84 instructing that DWI charges be disposed of in 60 days. Id. at 269. The Court called the 60-day period a goal, not a “bright line rule.” Id. at 270. However, the Court said, “90 to 120 days should be the norm for disposing of [DWI] cases.” Id. at 274. The Court further noted that a case that “approaches one year” is “presumptively prejudicial.” Id. at 265. In Cahill, the Court called the 16-month delay “too long.” Id. at 277. Likewise, in State v. Tsetsekas, the Court found that 344 days, “more than five times the stated [Supreme Court] objective” … weighted heavily for the defense. State v. Tsetsekas, 411 N.J. Super. at 11.

The Reason for the Delay

“Once a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay.” State v. Cahill, 213 N.J. at 266.

A deliberate delay is weighted heavily for the defense. Id. The Court explained however that “[a] more neutral reason, however, such as negligence or a heavy caseload, will also be weighed against the government … because it is the government’s ultimate responsibility to prosecute cases in a timely fashion. A defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial. Id. at 266. Court delays are charged to the State, not to the Defendant. State v. Farrell, 320 N.J. Super. at 450-451.

Assertion of Right

In Cahill, the Court said, “[a] defendant does not have an obligation to assert his right to a speedy trial because he is under no obligation to bring himself to trial.” Id. at 266. The Court explained, “[i]t is the State’s obligation to prosecute and do so in a manner consistent with defendant’s right to a speedy trial … Assertion of the right … is not dispositive of the merits of the claim and is certainly not a pre-condition to the invocation of a defendant’s right to a speedy trial. Id. at 274.

Prejudice

In Cahill, the Court explained that the “minimization of anxiety attributable to unresolved charges” is one of the interests the speedy trial right is designed to protect. Id. at 266. “A speedy trial violation can be established without evidence of prejudice.” Id. at 274 (citing State v. Farrell, supra., 320 N.J. Super. at 446. The Cahill Court explained, “every unresolved case carries with it some measure of anxiety.” Id.  “This is particularly true when one of the sanctions [for DWI is] a license suspension.” Id.

The court instructed in State v. Farrell, “prejudice to a defendant resulting from delay is no longer confined to inability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution and the like.” State v. Farrell, 320 N.J. Super. at 452.

Likewise, the Court in Tsetsakas recognized that “significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances. State v. Tsetsekas, 411 N.J. Super. at 13.

CONCLUSION: Winning a DWI case with a speedy trial motion is possible. Successful advocacy requires knowledge of the underlying legal tenets. These legal principles must be applied to the particular facts of each case by counsel with an artist’s touch.

 

NJ DWI Penalty Revisions Conditionally Vetoed By Governor Christie

On March 23, 2015, Governor Christie conditionally vetoed Assembly Bill A-1368.

The bill would have radically changed penalties for NJ DWI offenders by replacing mandatory license revocations with conditional licenses – conditioned upon the installation of an ignition interlock device on his/her car.

The Governor’s recommendations with the veto would increase NJ DWI penalties by making the ignition interlock mandatory for all first offenders and increasing the term of the ignition interlock for all offenders.

NJ DWI Field Sobriety Testing

I recently spoke at a seminar titled “Handling Your First DWI Case” sponsored by the NJ Bar Association Institute for Continuing Legal Education. I was asked to instruct other NJ lawyers in the area of field sobriety testing. The following are experts from my presentation.

FIELD SOBRIETY TESTING

Most police officers have formal training in field sobriety testing – and specifically, standardized field sobriety testing through the NJ State Police There are two classes of tests; pre-exit tests and standardized field sobriety (SFST) tests.

PRE-EXIT TESTING

Pre-exit tests are optional. An officer will administer pre-exit testing to determine whether to have a suspect exit a vehicle and proceed to administer more reliable standardized field sobriety tests.

Officers are trained that after a stop, they should engage in “face to face contact [and] may administer some simple pre-exit sobriety tests to gain additional information to evaluate whether or not the driver is impaired … and  whether to request the driver to exit the vehicle for further field sobriety testing.” See 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide.

The most common pre-exit tests (see 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide) are:

  • Alphabet. The driver is asked to recite the alphabet beginning with a letter other than A and ending with a letter other than Z. For example, an office might ask a driver to recite the alphabet (without singing) beginning with the letter D as in Dave and stop with the letter P as in Paula.
  • Count Down. The driver is asked to count out loud 15 or more numbers in reverse. For example, an officer might ask a driver to count out loud backwards starting with the number 34 and ending with the number 13.
  • Finger Count (Sometimes referred to as a “finger-pat” test). The driver is asked to touch the tip of the thumb to the tip of each (other) finger on the same hand while simultaneously counting up (1-2-3-4) and then down (4-3-2-1).

NHTSA research shows and training is, these pre-exit tests “have not been scientifically validated but still can be useful for obtaining evidence of impairment.” See 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide.

STANDARDIZED FIELD SOBRIETY TESTING

Standardized field sobriety testing is a battery of three tests administered and evaluated in a standardized and objective manner to obtain validated indicators (called “clues”) of alcohol impairment and to establish probable cause to arrest a DWI suspect. The tests were first “validated” at a .10% BAC and subsequently at a .08% BAC.

These tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). The research concluded that these three tests when administered and scored properly, were the most scientifically reliable field sobriety tests to determine alcohol impairment.

Formal training in the administration of standardized field sobriety testing consists of intensive classroom study, at least two controlled drinking sessions testing subjects and a final written examination.

The official NHTSA training manuals (including the most recent March 2013 Participant Guide) are on line: http://www.wsp.wa.gov/breathtest/dredocs.php

The January 25, 2005 Attorney General Guidelines for Prosecuting DWI Violations, promulgated pursuant to N.J.S. 39:4-50.2a, states “[f]or those officers with the requisite training, they will generally employ the Standard Field Sobriety Testing [SFST] methods …” see www.state.nj.us/oag/dcj/agguide/d-10jd-dwi-2005.pdf

The three standardized field sobriety tests (known by the acronym “SFSTs”) are (1) the horizontal gaze nystagmus (HGN), (2) the walk-and-turn, and (3) the one-leg-stand.

According to NHTSA, the SFSTs are the most reliable tests to identify impairment. The reliability of SFSTs is, however, contingent upon the tests being administered in a prescribed standardized manner, standardized indicators (“clues”) being used to assess the suspect’s performance, and standardized criteria being employed to interpret the performance.

In United States v. Horn, 185 F. Supp. 2nd 530 (D. Md. 2002), United States Magistrate Judge Grimm undertook an extensive and scholarly review of “standardized” field sobriety tests. Judge Grimm, reviewing the literature and Federal training materials instructed among other things that the standardized field sobriety tests are valid:

[o]nly when … administered in the prescribed, standardized manner; and only when the standardized clues are used to assess the suspect’s performance; and only when the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised. Id. at 538.

NHTSA has attempted to dilute the requirement of strict compliance with their standardized procedures (in their most recent 2013 training materials). It is, however, impossible or NHTSA to eliminate the requirement that the tests be administered in a standardized fashion (since the NHTSA validation was tied to properly administered tests).

According to NHTSA, “[t]he validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring.” www.nhtsa.gov/people/injury/alcohol/sfst/introduction.htm

The current (2013) training materials (http://www.wsp.wa.gov/breathtest/dredocs.php) instruct officers to “administer … the Standardized Field Sobriety Tests as you were trained … [s]tandardization ensures both consistency and credibility” (page 23 of 31).

HORIZONTAL GAZE NYSTAGMUS (HGN)

Horizontal gaze nystagmus is a naturally occurring involuntary jerking of the eyeballs as they gaze side to side while following a fixed object (called a “stimulus”). When a person is impaired by alcohol, the nystagmus (the jerking of the eyeballs) is magnified or pronounced.

The officer is trained to observe the eyes of a suspect as they follow a slowly moving object such as a pen or small flashlight (referred to as a “stimulus”) back and forth (horizontally). The stimulus is held 12-15 inches in front of the subject’s nose, with the tip slightly above the eyes.

As the suspect tracks the stimulus with the eyes only (the head remains still), the officer is trained to look for three indicators (or clues) of impairment in each eye:

  • Distinct and sustained nystagmus when the eye is at maximum deviation (maximum deviation meaning the eyeball moved horizontally as far as it can go), and
  • The eye cannot follow the stimulus smoothly (like marble being rolled across a piece of sandpaper as opposed to a marble being rolled across a glass table),
  • The angle of onset of nystagmus is prior to 45 degrees from center (45 degrees being approximately when the eye is near the subject’s shoulder blade).

A Court cannot consider the results of an HGN test for substantive evidence of intoxication but may consider the test results for a “probable cause” (to arrest) determination. see State v. Doriguzzi, 334 N.J. Super. 530, 546-547 (App. Div. 2000).

WALK AND TURN

There are two stages in the walk-and-turn test: (1) the “instruction stage” and (2) the “walking stage.” In the instruction stage, the subject is directed to stand on a line with the feet in a heel-to-toe position (right foot in front of left), keeping the arms at the sides, listen to instructions and not begin until being told to do so. The subject is instructed to take nine steps, heel-to-toe in a straight line while counting the steps out loud and watching the feet, and then turn and return in the same manner.

The officer is trained to look for eight clues of impairment:

During the Instruction Stage:

  • Loses balance during the instructions (by breaking away from the heel-to-toe stance), and
  • Starts walking before the instructions are finished.

During the Walking Stage:

  • Stops while walking to steady self,
  • Does not touch heel-to-toe (by missing by at least one-half inch),
  • Steps off the line,
  • Uses arms for balance (by six inches or more),
  • During the turn, loses balance or turns improperly, and 8. Takes the wrong number (9 and 9) of steps.

Officers are trained to administer the walk-and-turn test on a reasonably hard, dry, and non-slippery surface and in a well-illuminated area. Officers are also instructed that people more than 65 years old, over 50 pounds overweight, or with physical impairments that affect their balance will have difficulty with the test. The officer is trained to ask the suspect whether they have any physical problems or disabilities.

Officers are taught to remain motionless and stand three to four feet away from the suspect during the test. Officers are trained that individuals wearing “heels more than two inches high [or] any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.” Officer are also trained to “consider environmental factors [e.g. wind and weather – and] location [and that] the totality of all factors should not be overlooked.”

ONE LEG STAND

There are two stages to the one-leg-stand test: (1) the “instruction stage” and (2) the “balancing and counting stage.” In the instruction stage, the suspect must stand with the feet together and the arms at their sides. The subject is instructed to stand with one chosen foot approximately six inches off the ground, toes pointed out, while looking at the elevated foot until told to put the foot down, and not stop until being told to stop (the officer should time 30-seconds).

The officer is trained to look for four clues of impairment:

  • Swaying while balancing (a noticeable sway in a side to side or back and forth motion),
  • Using arms to balance (more than six inches),
  • Hopping to maintain balance, and
  • Putting the foot down.

Like the walk-and-turn test, officers are to administer the walk-and-turn test on a reasonably hard, dry, and non-slippery surface and in a well-illuminated area. Officers are also instructed that people more than 65 years old, over 50 pounds overweight, or with physical impairments that affect their balance will have difficulty performing the test. The officer is trained to ask the suspect whether they have any physical problems or disabilities.

Officers are taught to remain motionless and stand three to four feet away from the suspect during the test. Officers are trained that individuals wearing “heels more than two inches high [or] any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.” Officer are also trained to “consider environmental factors [e.g. wind and weather – and] location [and that] the totality of all factors should not be overlooked.”

 

 

New Jersey DWI Trial – Not Guilty

I had a DWI trial last week in a New Jersey (Passaic County) Municipal Court. The verdict was not guilty. My client was relieved because a conviction would have created a lot of havoc on his career. I have tried hundreds of DWI cases from start to finish. Every case is different and requires specific and sudden judgment calls that have to be made as the case is ongoing.

In this case, we retained an outside “expert” witness who was available for the trial. After the State’s case was put in, I elected not to call the expert to the stand, and we (the defense) rested. I was able, through careful cross examination, to neutralize the State’s case and evidence. I determined that calling our witness would allow the defense to poke a few more holes in the State’s case. However, the prosecutor, who is very seasoned and respected adversary, would in all likelihood, have strengthened the State’s case through his cross examine of our witness; in effect turning our witness against us. I determined that the benefit of calling the expert was outweighed by the possibility of an already weak case for the State being bolstered.

On occasion, I will elect not to call a witness after the State has rested. In this case, the State called one witness and rested; we called no witnesses and rested. The State bears the burden of proof beyond a reasonable doubt. In this case, the judgment call was that the State’s case was not proven beyond a reasonable doubt. Sometimes, lawyers make the mistake of calling witnesses and eliciting testimony when the State has not proven their case. This common error simply allows the State to turn around a weak case. The decision to rest and not call our witness was the correct one. After closing arguments, the Judge found reasonable doubt and acquitted my client of DWI (N.J.S. 39:4-50).

State v. Henry – Jail For Second NJ DWI Offender – Courts Given Guidance On When To Impose Jail For DWI Defendants

In State v. Henry (Approved for Publication 02-09-2011), the Court held that a Municipal Court should weigh mitigating and aggravating factors pursuant to N.J.S. 2C:44-1 in determining whether to impose a discretionary jail sentence in a DWI case.

The Relevant Statute (2C:44-1 Criteria for Withholding or Imposing Sentence of Imprisonment) sets forth criteria used by a Judge to determine an appropriate sentence for a “criminal” offense. A DWI is not a criminal offense; but the Court chose to employ this statutory scheme given the lack of clarity in the context of a DWI.

Most Courts before State v. Henry, weighed mitigating and aggravating factors in DWI cases, but without a state-wide specific standard. The ruling provides some guidance for Courts in DWI cases where a jail term is discretionary (1st and 2nd offenses).

In State v. Henry, the Defendant had two prior DWI convictions in 1997. He was convicted again in 2009. Because the gap between the 2nd and 3rd convictions was more than ten years, Henry was eligible (pursuant to the NJ DWI Statute) to be treated as a 2nd DWI offender (called a “step-down”). He was sentenced to 30 days in jail, which was reduced to 14 days on Appeal.

It was particularly significant that the Court viewed Henry’s high blood alcohol reading (.30%) which they called “extraordinarily high”, as an “aggregating” factor. The Court found that such a high reading “posed a significantly greater risk of harm to the public.” The Court also found as aggravating that the defendant was “an untreated alcoholic”, and that he had a criminal record (for possessing a gun which involved intoxication).

The Court also found that despite the “step-down”, that Court could consider that Henry was a third offender because he “poses a greater risk of re-offending than a person with two offenses.” Last, the Court found as an aggravating “the need to deter.”

In contrast, the Court found as mitigating factors “the defendant’s persistent alcoholism” (while pointing out that he “has the responsibility to seek treatment diligently and consistently”), and his “willingness to cooperate” (e.g. he was cooperative when arrested, and he cooperated by entering a plea), that he will perform community service, and lastly, that jail would adversely impact the defendant’s mother who he cares for.
Mercer County Superior Court Judge Mitchel Ostrer who wrote the opinion, is a diligent judge. I have appeared before Judge Ostrer and have respect for him. The opinion reflects obvious thought and deliberation. However, I respectfully disagree with some of the tenets of the ruling.

When I was interviewed by the New Jersey Law Journal regarding the opinion, I expressed some concerns with the ruling. The DWI Statute regarded Henry as a 2nd offender (“stepped down” because his 2nd was more than ten years from his 3rd). It is troubling that the Court would therefore find as an aggravating factor, that he was a 3rd offender. This seems to be at odds with the Statute – and simply unjust because he should be treated the same as any other “2nd offender.” As an aside, the Court also found as a mitigating factor, Henry’s plea. This is in direct conflict with 2C:44-1 which provides that “A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.” The ruling in this regard tends to force a defendant to enter a plea – not exercise his constitutional right to a trial in exchange for favored treatment. There is a body of law (starting with the statute) that prohibits a court from imposing a greater sentence to a defendant who chooses to go to trial (a so-called “trial tax” – as opposed to plead guilty. While the ruling provides some needed standards to be followed, the ruling has the capacity to create injustice for DWI Defendants.

Driving With A Suspended License Following NJ DWI Conviction

Joe Giudice, husband of “Real Housewives of New Jersey” star Teresa Giudice was sentenced to 10 days in the Morris County jail for driving with a suspended license. Mr. Giudice’s license was under suspension following a dwi conviction in Montville New Jersey.

According to New Jersey Law N.J.S. 39:3-40(f)(2), a defendant who is convicted of driving while under suspension for a dwi conviction “shall … have his license … suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.”

I have handled many cases where clients are charged with driving under suspension for dwi, and have successfully argued around the 10 to 90 day jail term. The statute (N.J.S. 39:3-40) does not prohibit a jail alternative such as a county labor assistance program, making such an alternative to jail a viable sentence. I have also been able to get the charge reduced to a lesser charge because plea-bargaining of the charge is permitted (unlike the nj dwi statute where plea bargaining is prohibited). A jail term can also be avoided where the plea was made without counsel. In that case a petition can be made in the court where the dwi conviction occurred to get a protective order consistent with State v. Laurick, 120 N.J. 1, (1990), certiorari denied 111 S.Ct. 429, 498 U.S. 967, 112 L.Ed.2d 413 (1990). The jail term can also be avoided where the dwi plea was taken in contradiction of New Jersey Court Rules and the Defendant’s constitutional rights. In that case, a petition can be made in the the court where the dwi conviction occurred to vacate the plea altogether. Lastly, sometimes, the underlying case is faulty – for example, where the stop was made without an adequate constitutional basis. A successful challenge to the charge of driving while suspended (for a dwi conviction) is possible. I am not sure whether a successful defense could have been mounted for Mr. Giudice’s charge. I am going to try to get the records from the Lincoln Park New Jersey Police and Court for curiosity sake.

New Jersey School Teacher Pleads Guilty to DWI

A Randolph Middle School science teacher recently pleaded guilty to DWI. She was accepted into a pre-trial intervention (PTI) program for a separate charge related to the incident of eluding police.

Patricia R. Blakeley, 58, from Byram pleaded guilty of DWI in Randolph New Jersey on May 18 – with a blood alcohol concentration of .20 percent. Ms. Blakeley spent more than two months at an in-patient facility in Florida after her arrest.

As a New Jersey DWI Defense lawyer, I witness most clients who are charged with DWI in a state of shock and shame. I had one client tell me that being charged with DWI was like being hit square in the face from God with a two-by-four. For many clients, a DWI charge opens up a period of introspection about alcohol abuse, and the life challenges that caused the charge.

I have learned a lot from representing clients charged with DWI in New Jersey. One thing in is certain – nobody on this earth is perfect. In addition, many imperfect people are good people who can find themselves ensnared by a DWI charge. Another life certainty is that people love to judge others and expose their flaws while failing to look at their own imperfections. This is probably why we like seeing and hearing about celebrity gossip. I was a first-time visitor to a new Church, and the Pastor said during his sermon that he, like all of us, was not perfect. I respected that and immediately, he had credibility with me.

Ms. Blakeley attended in-patient counseling follow her arrest. I am sure the ordeal was stressful and embarrassing for her. She, like all of us, is not perfect. Unfortunately, for her, her error was exposed publicly which I would imagine was not an easy thing to deal with. I wish her well.

NJ DWI Defendants Sue Town & Prosecutors

Mr. Robert Pinizzotto, Esq., a former Municipal Court Prosecutor and the former head of the New Jersey Municipal Court Prosecutor’s Association, filed a lawsuit challenging the fairness of the Municipal Court System.

The lawsuit, brought by two New Jersey DWI Defendants, seeks a declaration that the Municipal Court system violates the Defendants’ constitutional rights to a fair and unbiased trial. The lawsuit charges that Judges are “subservient to the executive branch” that appoints them. This, according to the suit, makes the Judges beholden to the financial issues of the government. In other words, the focus of the Judges is generating revenue rather than dispensing justice. The suit also charges than local prosecutors are not “not bound by the same ethical obligations” as county prosecutors, rendering the system unfair for defendants.

This lawsuit is a courageous challenge to the entire New Jersey Municipal Court system. The lawsuit brings to light an issue that many practitioners complain about – but only privately. Mr. Pinizzotto, who as a Prosecutor, was in my experience always concerned primarily about dispensing justice (not just obtaining a conviction). That focus (seeking “justice” through righteousness) makes the best system of justice in the world work – you “cannot serve two masters.”

As a college student, I worked as a reporter for a local newspaper covering the local Municipal Court. On my first assignment, when the court session ended, and I was writing notes, the Judge turned to the Court Administrator and asked, “How did we do tonight?” I quickly raised my head and looked up bewildered – as if this was manager of a store asking his cashier how much merchandise was sold. This bold challenge attempts to blaze a trail where no one else has dared go. I applaud the lawsuit and the gutsy challenge.

NJ DWI Appeal Dismissed – State v. Parra

In State v. Parra (App. Div. 2010), the New Jersey Appellate Division upheld the dismissal of the Defendant’s Appeal. The Defendant sought to vacate a 1997 guilty plea to DWI in a New Jersey Municipal Court. The Motion was denied in the Municipal Court, and the Defendant appealed. The Superior Court dismissed his appeal (because the appeal was not properly filed). The Defendant appealed to the New Jersey Appellate Division.

The Appellate Division upheld the dismissal of the appeal. The Court noted that the Defendant failed to properly file the appeal (filing the appeal with the “Court Clerk, Superior Court of New Jersey, Mercer County, Mercer County Civil Courthouse …” (not the Criminal Division Manager’s Office). Further, the Defendant did not file the appeal with the Municipal Court (as required by New Jersey Rules of Court), nor did he serve a copy on the County Prosecutor’s Office (rather he served the Municipal Court Prosecutor). These filing deficiencies were deemed fatal to the appeal pursuant to New Jersey Court Rule 3:23-2, which spell out the filing requirements for a Municipal Court Appeal.

The Court said that the “violations are not mere administrative violations that can be overlooked … they are fatal to defendant’s ability to pursue an appeal in the Law Division.” The Court found that “in every single respect, defendant violated the requirements of the Rule[s].” Thus, the Appellate Division ruled, “the Law Division correctly dismissed the appeal.”

Filing appeals is intricate. If proper procedure is not followed, the appeal is subject to dismissal. This case presents an example of a NJ DWI Appeal that was fumbled, and unfortunately, the Defendant’s Appeal was dismissed. Defendants contemplating filing an appeal in a New Jersey DWI case are cautioned to seek an experienced NJ DWI Lawyer who is familiar with the appellate process. A misstep can result in the dismissal of the appeal and the loss of the right to have a full and proper review.

"Fugazi" (Fake) NJ DWI Lawyer Websites

Time after time, I find that content from my websites (www.njdwidefense.com and www.newjerseydwi.com) has been copied and placed on other lawyer-websites. They say that imitation is “the best form of flattery.” Unfortunately, clients reading these copycat websites can be fooled into believing that the lawyer whose website where my work appears actually wrote the material. In reality, the sites contain work that was simply pilfered from my sites – or a lame attempt was made to make the material look authentic. People charged with DWI in New Jersey looking for information are entitled to true and authentic material from the attorney (the learned “professional”) who purports to be writing it.

I believe that a lawyer who resorts to lifting the work of another (or who allows his website to contain pilfered work and stands by blindly) and passes it off as his own is lacking in a core set of principles, and does a disservice to the public.

In the movie “Donnie Brasco”, an FBI undercover agent (Donnie Brasco) played by Johnny Depp, infiltrates the New York Mafia. Brasco came to be known as “Don the Jeweler” because of his keen knowledge of the jewelry trade.

A real Mafioso, Lefty Ruggiero (played by Al Pacino) approached Donnie Brasco (“Don the Jeweler”) and offered to sell him a diamond. Brasco quickly examined the diamond and said to Ruggiero, “You should give it to someone who don’t know any better because that is a fugazi … it’s a fake … you want to go embarrass yourself with this thing?” Ruggiero and Brasco then went back to the person who gave Ruggiero the (fake) diamond (as payment of a debt), and relieved him of his Porsche.

The diamond was a “fugazi” – slang for a fake. Some Lawyer websites that purport to be offering nj dwi information are fugazies; they are fakes. Clients who have been charged with dwi are usually embarrassed, shame-ridden, suffering from anxiety, and are seeking genuine information from educated professionals, and they are shopping for an suitable professional dwi defense lawyer.

Watch out for fugazies – for fakes; unfortunately, the world is full of them. I tell my nine-year old daughter (who is beautiful, smart, and a gifted singer and actress – OK, I am bragging about my daughter but I cannot help it) to always be genuine, to be authentic and original – to be a critical thinker. When she was three, I once told her not to be a “copycat”, and she said daddy “what is a “coffee cat?” That is now a running joke in our house to this day; – “don’t’ be a coffee cat?”

If you are looking for GENUINE NJ DWI Information (and not a Fugazi Website), please visit my main website: www.newjerseydwi.com

Please keep the internet genuine and report plagiarism to gmmesq@aol.com. If you have comments, please post through the link below – and remember, please don’t be a fugazi.

 

State v. White – Driving While Suspended for a NJ DWI Conviction

In State v. White, the Honorable Richard Bowe, J.M.C., sitting in the Byram Township Municipal Court, ruled that the Sussex County Sheriff’s Labor Assistance Program (SLAP) is not available to a defendant convicted of driving while suspended (N.J.S. 39:3-40) when the reason for the suspension is a nj dwi conviction. The Court ruled therefore that the statutory jail term (10 to 90 days) is mandatory, and the only permissible option. The opinion was approved for publication on April 23, 2010 (Municipal Court Opinions are rarely published).

This is another ruling that I believe targets DWI Defendants unfairly. Defendants who commit other offenses are entitled to the Sheriff’s Labor Assistance Program (SLAP) in lieu of jail; for instance an intentional assault on another. A Defendant whose license is suspended for multiple moving violations and even causing the death of someone else while driving recklessly and later caught driving while suspended would be entitled to the Sheriff’s Labor Assistance Program (SLAP) in lieu of jail. A Defendant convicted of DWI in New Jersey who is suspended, and then drove (for instance, to take his sick wife or children to the hospital) would be ineligible for SLAP. I find that inequality unjust.

I respect Judge Bowe. The Opinion however, has limited precedential value in other Courts. Given that this is a Municipal Court Ruling, it does not have to be followed by other Judges. Other Courts can look to the ruling as persuasive authority, but they are free to reject Judge Bowe’s ruling and reasoning.

I have been a New Jersey DWI Defense Lawyer for nearly twenty years. The defense of DWI (and those charged with driving while suspended after a conviction) has become increasingly specialized, complex and challenging. I understand the broad public policy against drunk driving. The unfair treatment of dwi defendants is however, troublesome to me. A defendant charged with a drive-by-shooting or rape can engage in plea bargaining (i.e. plead guilty to a reduced charge); a nj dwi defendant cannot. That same defendant can seek a jail alternative; a third nj dwi offender or one who drove during a period of suspension for a dwi conviction period cannot.

Greggory M. Marootian, Esq.
http://www.newjerseydwi.com/
https://www.njdwidefense.com/

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.