The Law Offices of Edward Harrington Heyburn, PC

If you are denied a permit to purchase a firearm, you can appeal and the Court must hold an evidentiary hearing!

Chief of Police, William Spain, denied Anthony Dubov’s application for a firearm permit as one of Mr. Dubov’s referencing provided a negative report.  The matter was ultimatelyappealed to the Superior Court which heard argument but failed to hold an evidentialy heary in which Mr. Dubov could not only cross examine witnesses but could introduce evidence of his fitness.   The Appellate Division reverse and concluded that the trial court’s conduct of the proceedings on the appeal from the denial of appellant’s application for a permit to purchase firearms did not conform with the requirements of procedural due process set forth in  Weston v. State, 60 N.J. 36, 43-44 (1972).  Therefore, the order affirming the denial of thatapplication must be reversed and the matter remanded for a rehearing conducted in conformity with Weston.

Did you know that you do not have to lose your license if caught with drugs in your car?

Until recently, driver’s caught with Controlled Dangerous Substances (CDS) in their car had to lose their license.  Now the Court will permit a hardship argument that would allow a driver to keep his license despite a conviction if he can demonstrate that the loss of the license would pose a hardship to his family, ability to work and support his dependents.  In light of the cost of taxi’s, a lawyer’s fee is worth the investment!

You can lose your driver’s license even if you are sober and cooperate with the Alcotest breathlyzer

New Jersey law has an implied consent statute.  The statute requires every driver who drives in NJ to take a breath test called the Alcotest if requested by a police,  If you refuse to do so, you lose your driver’s license just as if you were driving while intoxicated.  What the statute doesn’t tell you is that police can charge you with a refusal to take the breath test even if you take it.  The Alcotest requires a minimum of 1.5 liters of air to register a complete test.  If the defendant can’t blow at least 1.5 liters of air, the police officer can charge the defendant with refusing to submit to the breath test.  although the Alcotest allows for 11 tries before it times out, police rarely let a defendant try more than 3 times.  The refusal statute is of particular concern for those with a compromised airway such as asthmatics, the elderly or anyone suffering from bronchitis.

Careless Driving charges dismissed in a 1 car accident where there were no witnesses!

Many times drivers leave the roadway and strike a guardrail, tree or object on the side of the road.  Most of these accidents are cause by the road conditions or vehicle problems such as flat tires and not by the driver’s carelessness.  Despite this, police routinely write the driver a ticket for careless driver with the misguided assumption that if there was an accident the driver must have been careless.  The law permits such assumptions in civil litigation.  It is called res ipsa loquitor, the thing speaks for itself.  This assumption is NOT permitted in a quasi criminal case where the State has to prove the defendant guilty beyond a reasonable doubt.  Despite the fact that our Appellate Division prohibited police from making such assumptions in State v. James Wenzel,  113 N.J. Super. 215 (App. Div. 1971), police continually write these tickets.  Today the Middletown Police Department realized their mistake and agreed to dismiss a careless driving ticket issued against one of their own residents.

NJ Police must have a warrant before they search your car.

Under both the United States and New Jersey Constitutions, the police must have a warrant to search your car unless they first obtain your permission or demonstrate exigent circumstances that justify searching your car without a warrant.  If your car was searched without a warrant and without your permission, you may be entitled to have a court suppress the evidence obtained as a result of the search.  Arizona v. Rodney Joseph Gant, 556 U. S. ____ (2009); State v. Eckel, 185 N.J. 523 (2006).

Children can force parent to pay for college, but only if their parents are seperated/divorced.

N.J.S.A. 2A:34-23(a) sets forth a 12 part test for a Court to decide whether a divorced/separated parent can be forced to pay for a child’s college expenses:

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

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