Princeton Office
Tuesday, February 7, 1:19 pm
- 149 LL Recess Appointments January 20, 2012
- 087 LL Reading, Writing, Frisking January 6, 2012
- 148 LL Is Christmas Unconstitutional? December 30, 2011
Dispatcher’s honest mistake invalidates probable cause
After years of Courts bending over backwards to deny motions to suppress where the police officer relied on mistaken information in good faith, we see a change in the tide. In State v. Handy, the Appellate Division held:
The dispatcher’s conduct — advising an officer on the scene that there was an outstanding warrant when the warrant contained a differently spelled name and a different date of birth — was objectively unreasonable and violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Evidence uncovered during the search incident to the arrest must be suppressed.
Now, lawyer’s will be analyzing the audio between the dispatcher and police officer to see if the officer relied on mistaken or incomplete information before arresting the defendant.
Download the Court’s opinion here: 
A camera coming to an intersection near you.
Linden netted $800k after 3 months of using a camera to catch drivers blowing through red lights. Now more towns are following suit. Edison, Brick and Newark all have camera systems designed to catch red light violators without the need of police officers. The towns have all cited safety concerns but we know that the recent budget crisis has towns scrambling for revenue. More tickets will mean more points which translates into higher insurance premiums and MVC Insurance Surcharges. You still have the right to fight the ticket and even have the charge downgraded to a no point ticket in many circumstances. If caught running a red light by officer or by camera it is best to consult with a lawyer and discuss your options. I provide free telephone consultations.
Edward Harrington Heyburn files Motion to Dismiss DWI Charges where Police perform field sobriety “off camera”
Cameras were installed in police cars to protect police from unfounded civilian complaints and establish evidence in DWI arrests. These cameras have become a double edged sword. Innocent people were able to use the videos to exonerate themselves from false police accusations. Police reaction has been to make drivers perform the field sobriety tests in front of their own vehicle. The driver’s vehicle blocks the camera’s view of the test and the Court is left with the officer’s testimony about how well a driver performed. As the police have control over the scene and the driver’s movement, the police can move the driver in or out of the camera view as they see fit. Police will testify that it is too dangerous to have a driver perform the field sobriety in between the police car and the driver’s car (in camera view) because they would get pinned by the cars if someone hit the back of the patrol car.
But what happens when the stop occurs in an empty parking lot where there is no reason to be concerned about safety? Police still have the driver perform field sobriety off camera. Safety is a red herring. Police have unwritten protocols that direct them to prevent the recording of exculpatory evidence. This way their testimony is the only evidence. Occasionally, a defendant will testify but the Court always finds the police officer credible and the defendant not credible. Increasingly, our Municipal Court system has become an extension of the prosecution. Municipal Court judges are appointed by town mayors. Their goal is not just nor is it to overlook the law. It is to maintain job security. A judge that dismisses DWI charges, even because of police misconduct, will no have job security.
Fortunately, our system also provides for 3 levels of appeals. At each level the judges are further away from the political process that determines their decisions. Unfortunately, an innocent defendant faced with municipal court charges, must be in for the long haul. This means time and money. I have taken appeals pro bono in certain cases where I believed a municipal court judge had made a decision based on my client’s race or the court’s calculated decision that my client was too poor to appeal. It is impossible for private attorneys to appeal every case pro bono. We would be out of business before our case reached Superior Court. So we pick and choose the right case with the right judge to take up on appeal. Judges hate to be overturned. Superior Court judges never mind airing a municipal court judge’s sloppy decisions. It make the municipal court judge look bad.
If you are charged with an offense and need an attorney that will take you matter seriously, please call me so that we can discuss your case.
Summer time at the Jersey Shore
Jersey Shore
The summer is near and you are getting your shore house ready, sun tan lotion and summer vacation plans in order. What should you know about NJ law? Well, I’ll tell you now and maybe save you some heart ache later.
DWI and the Alcotest (Breathalyzer)
Q: If I am stopped should I tell the officer I had a couple of beers?
A: While our parents have taught us that honesty is the best policy, it usually lands you in jail. If you tell the police officer you had any alcohol, he/she will arrest you and have have you blowing into the Alcotest before you know it. While an attorney cannot tell someone to lie, an attorney can tell you that it is not illegal to say, “I did not have anything to drink tonight. In fact, I was the sober driver.”.
Q. What should I know about the psycho-physical tests before I have to do them?
A. Practice raising one leg 1 foot off the ground. Dead sober it is awkward. I think most people fail because they are not used to doing this type of task. Keep your arms at your sides. Don’t use them for balance. Do this for at least 30 seconds. Practice makes perfect. Ladies, if you plan to wear heals, keep a comfortable pair of sneakers in the car for the test. Yes, you are allowed to change.
Watch YouTube videos on walking the straight line. Most people mess up because they don’t listen to the instructions. You have to take 10 steps, heel to toe and then rotate around and walk 10 more steps heel to toe back. If you spin around at the end of the line, you will fail! Slowly rotate.
Q. Should I test the Alcotest (Breathalyzer)?
A. YES!!!! NJ like most states has an implied consent law. This means that you have consented tom taking the Alcotest by the virtue of driving in NJ. If you do not take the test, you will be charged with Refusal which carries with it a 7 – 12 month loss of license in addition to any time you lose for DWI. Yes, the police can still convict you even if you do not take the Alcotest. It is call an “Observation” case.
Q. Do I need a lawyer or should I just plead guilty?
A. Get a lawyer. Once a man asked me tom represent him for his guilty plea and sentencing only. He was set on pleading guilty. He was charged with going the wrong way on the New Jersey Turnpike and getting into an accident. When he got to court, ready to surrender his license, I told him that no one saw him driving the car. Police failed to get witnesses and he did not give a statement. As a result, the DWI charges were dismissed!
Q. I am from New York, what does it matter if I get convicted of DWI in NJ?
A. NY and NJ, lime most states have an agreement to suspend their home driver’s license if convicted of DWI in another state. So, not only will you lose your right to drive in NJ, you will lose your right to drive in NY once they find out about it.
Q. They police want to search my car, should I cooperate and consent?
A. No, no and no. There are so many requirements before the police can search your car. If you consent, you have given up one of the most important right in the Bill of Rights. Even if they threaten you will the drug sniffing dogs, just say no. Chances are, the will search your car illegally and the evidence will be suppresses. Say no even if you don’t have drugs in the car. The lead US Supreme Court case involved a search where police found checks forged by the driver’s brother-in-law!
NJ Supreme Court says police officer cannot testify about drug transaction
New Jersey municipal courts and trial courts have bent over backwards to allow police officers to testify that they observed what they believed to be a narcotics transaction. There seemed to be no end to what a court would allow under a quasi-expert exception. Prosecutors use the officer’s testimony to taint juries. Obviously, if the police officer says he observed a narcotics transaction and the court is treating him as an expert, this must be true and the defendant must be guilty. The New Jersey Supreme Court just put an end to insanity in State of New Jersey v. Kelvin L. McLean a/k/a Kevin McLean. The Supreme Court held, “the opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion and permitting the officer to testify about his opinion invaded the fact-finding province of the jury.”
The familiar standards governing expert opinion testimony are found in three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is qualified “by knowledge, skill, experience, training, or education” and who is therefore permitted to offer testimony in the form of an opinion that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so. N.J.R.E. 703; see N.J.R.E. 705 (governing disclosure by experts and manner of questioning experts). The Court has held, in its seminal decision, that because expert opinions in narcotics prosecutions are governed by N.J.R.E. 702, such testimony is limited to “relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge,” State v. Odom, supra, 116 N.J. at 71. Expert testimony is not admissible if the transactions at issue occurred in a straightforward manner. Moreover, experts may not, in the guise of offering opinions, usurp the jury’s function by, for example, opining about defendant’s guilt or innocence or about the credibility of parties or witnesses. Unless confined to their proper role, expert opinions may present the risk of undue prejudice to defendants. As for the use of hypothetical questions, although permissible, their use is not unbounded. The Court has imposed a number of safeguards, including that defendant’s name not be included in the question or answer and that the judge should instruct the jury that they are not bound by the expert’s opinion because the decision about guilt is theirs alone.
Lay opinion testimony can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its functions either by helping to explain the witness’s testimony or by shedding light on the determination of a disputed factual issue. Perception rests on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing. Although our appellate court, in explaining lay opinion testimony, has referred as well to the officer’s training and experience, the analysis of admissibility has been, as it must be, firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of Rule 701. There are, however, limits that have traditionally been imposed on lay opinion testimony. For example, unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.
A temperature probe by any other name….
Yesterday, the Appellate Division heard the looming issue of whether the replacement temperature probes used by many police departments are reliable. Initially, the New Jersey Supreme Court ruled that the Alcotest (which used with the Ertco-Hart Temperature Probe) was reliable. Thereafter, many police departments switched the type of temperature probes used to save money. This begged the question of whether the cheaper probe was less accurate. In State v. Holland and State v. Pizzo, the Appellate Division attempted to address the issue.
The Appellate Division agreed with the trial court that although Chun did not preclude the use of any similar digital thermometer traceable to NIST, “the record below is insufficient to support a finding that the digital thermometer used in this matter was in fact comparable to the Ertco-Hart thermometer.” Consequently, the judge remanded the case to the municipal court for a N.J.R.E. 104 hearing on the reliability of the Control Company temperature probe and, separately, on a discovery issue involving missing Alcotest machine data not produced by the State and previously raised by the defendant below. The State did not cross-appeal from that remand order. In fact, the State has represented that it will be able to demonstrate that its change of manufacturer “holds no significance” and that “the Control Company, Inc., temperature probe is comparable to its Ertco-Hart-manufactured counterpart and meets the Special Master’s requirement of traceability to internationally recognized NIST standards.”
It looks like the State is going to have to prove that the cheaper probes are just as good. Stay tune for the results!
App warning Drivers of DUI Checkpoints Removed After Pressure from US Senators
Smartphones, Ipads and Android Tablets are great to keep in touch on the road, avoid traffic and now avoid DUI Checkpoints. Vut, it looks like Big Brother may have the last say despite it is perfectly legal to sell an application that advises the public where a DUI checkpoint is:
Research in Motion said Wednesday that it will remove DUI checkpoint apps from its app store after four senators this week demanded that they be pulled from the BlackBerry App World, Google Android Market, and Apple App Store. Sens. Harry Reid, Chuck Schumer, Frank Lautenberg, and Mark Udall have pressured Apple, Google, and RIM’s app stores to stop selling applications that warn drivers of the location of DUI checkpoints. Currently there are no laws that prohibit the disemination of information about this type of police activity. Any legislation would face a 1st Amendment, Freedom of Speech challenge. Interestingly, the Senators opted not to legislate but to apply pressure on the distributors of these types of applications.
Computer world reported:
“Drunk drivers will soon have one less tool to evade law enforcement and endanger our friends and families,” the senators said in a joint statement. “We appreciate RIM’s immediate reply and urge the other smartphone makers to quickly follow suit.”
On Tuesday, the senators wrote to Google, Apple, and RIM to express concern about apps that allow users to keep tabs on – and possibly evade – DUI checkpoints, which they said was “harmful to public safety.” They asked the companies to remove the apps or alter them so they do not allow for DUI checkpoint information.
Apple did not respond to a request for comment. Google had no comment.
On Tuesday afternoon, a search for “DUI checkpoint” in BlackBerry App World returned the PhantomALERT app. This free app provides data on speed traps, red light cameras, speed cameras, school zones, DUI checkpoints, and dangerous intersections. It was no longer in RIM’s app store by Wednesday afternoon.
A similar search in the Apple App Store returns three apps: Buzzed, which sells for $0.99, will provide users with updates about DUI checkpoints within 100 miles of their location; Checkpointer (above), which costs $4.99, provides data on checkpoints in Orange County, Calif., information that is collected and posted by a bail bonds company; and .Tipsy, a free app that provides weekly updates on checkpoints in Los Angeles.
“The super small, one time fee of $4.99 spent today on Checkpointer could potentially save you thousands of dollars by helping you avoid an arrest for DUI,” according to the app description. “It might even make you think twice before taking that drink. Who knows?”
The Android Market pulled up four options: Checkpoint Wingman ($1.99) and Checkpoint Wingman Lit (free), which posts user-uploaded DUI checkpoints and sends alerts to your phone when you’re close to a checkpoint; the aforementioned PhantomALERT; and Mr. DUI (free), which posts information about DUI checkpoints, speed traps, and red light cameras, and also supports user submissions and alerts. Mr. DUI was created in partnership with an attorney, who will provide a free, one-hour consultation with app downloaders facing DUI charges.
There is little support for driver’s charged with drinking and driving. As it stands, virtually every state permits admission of blood-alcohol results from a machine without an expert to explain how the machine analyses the breath sample. Essentially a polic officer testifies that the driver blows in one end and the results come out of the other end. Unlike other areas of law, the witness does not need to have an understaning of how the machine arrived at the results. If you have a question about this article or any legal issue, please feel free to call me.
But Officer, the light was yellow!
We have all had that experience of approaching an intersection just to see the light turn yellow. We speed up and try to get through the intersection before it turns red. No harm, no foul, right? Wrong. In New Jersey you must stop at a yellow light unless you are within 50 feet of the intersection. You read it right. You must stop on a yellow light. Today many people rely on “common law,” which is not the body of case law relied on by attorneys but the public misconception of what the law is. Some of this understanding is an innocent attempt to make common sence and law consistent but law and common sence rarely belong in the same sentence.
So, what to do? If you are approaching an intersection and the light turns yellow, check your rear view mirror. Make sure no one is following so closely that you will be in an accident if you stop. Remember, there is always the defense of “Emergency.” You can argue that if you stopped it would have caused an accident, thus it constituted an emergency justifying going through the yellow light. Oh, also remember, the police officer will always testify that you went through a red light no matter what the color of the light.
If you can, stop at the yellow light. You make get some menacing stares by other drivers but you will avoid a traffic ticket and even a potential accident with a driver trying to get a jump on his light. As always, if you have any questions about this post or any legal issue, please call me. The advice is free!
Do New Jersey Police Officers Suppress Exculpatory Evidence in DWI Arrests?
After reviewing dozens of “in-car” videos depicting roadside stops and investigations, it is clear that police systematically suppress exculpatory evidence. How do the do it. The police have the ability to point and focus the “in-car” camera after they stop a vehicle. For their own protection, they always zoom in on the license plate and then point the camera toward the driver side door of the vehicle. When a police officer suspects the driver of being intoxicated, he/she must perform a series of field sobriety test on the driver to determine whether there is probable cause to arrest the driver. Time and time again, the police officer makes the driver perform the field sobriety tests outside of the view of the “in-car” camera. This way the driver cannot use the video to establish that he/she was sober at the time of the arrest. The Court will only have the police officer’s subjective opinions when determining guilt.
Most of the time, police officers testify that they have to make the driver perform the test away from the view of the camera because they do not want to jeopardize the safety of the driver. Usually the camera show the area in between the front of the police car and the back of the driver’s car. Officer’s consistently testify that making the driver perform the field sobriety test in this area would jeopardize everyone’s safety in the event that there was an accident. But this fails to explain why police chose to use the driver’s vehicle to block the video with the driver’s car even when safety is not an issue. There are times when a driver is stopped in a parking lot or off road. This is a perfect opportunity for a police officer to point the camera at the area where the driver is performing the field sobriety tests. time and time again, they refuse to do so. The police make the driver do the test outside of the camera view. They suppress exculpatory evidence. While police argue that driver’s violate the drinking and driving laws, it is the police that disregard the United States Constitution and the due process protections it gives to citizens.
Despite the obvious disregard for the rights of the driver, New Jersey Municipal Court Judges allow the police to violate driver’s rights day in and day out. Rarely will a municipal court judge recognize that police are suppressing exculpatory evidence. They deny defendant’s applications for dismissal even where the police blatantly hide exculpatory evidence. What to do? You have to be in the case for the long haul. It seems that Judges’ respect for the Constitution increases at each level in the process. Also, judges hate to be overturned or critiqued for their lack of attention to the law by the Court above. I suggest that you retain a lawyer that is not only willing to try your case but take it up on appeal! If you have a question about your case, please feel free to call me.
DWI CONVICTION ENTERED IN FACE OF REASONABLE DOUBT IS REVERSED
The New Jersey Law Journal reports:
“An Essex County judge who shifted the burden of proof to the defendant in a drunken-driving case and convicted her despite finding reasonable doubt was reversed Thursday in State v. Driscoll, A-5842-08. After hearing testimony from Patricia Driscoll’s treating neurologist — who said her erratic driving on the night of her arrest was the result of Lyme disease, fatigue and a condition called presyncope, which causes dizziness, disorientation, loss of balance and mild cognitive dysfunction — Superior Court Judge Robert Gardner held “the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered.” The Appellate Division rejected the state’s request for a limited remand on the theory that Gardner merely spoke imprecisely. “If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt,” the court said.”
It is the State, NOT the defendant that has the burden of proving each element of the offense of driving while intoxicated, beyond a reasonable doubt. While some municipal courts try to shift burdens on to the defendant, it is improper. Interestingly in this case, the Superior Court Judge did not remand the issue back to the municipal court for a finding consistent with the law. Obviously, the municipal court judge would have changed the language in his holding to say that the State proved the Defendant guilty beyond a reasonable doubt. The Superior Court Judge recognize this and did not give him the chance to do so.
