New Jersey Criminal Attorney Blog

The State Supreme Court issued criteria that Municipal Court judges must meet before revoking a driver's license for reckless driving.

In the past, municipal judges have had wide discretion in revoking licenses for reckless driving. But in its ruling in State v. Moran, released this week, the Supreme Court sought to provide standards that would guide judges in suspending licenses. In addition to clarifying that suspension requires that the driver acted willfully and deliberately, the decision also requires judges to consider the following factors:

1) the nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage;

2) the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions;

3) whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation;

4) whether the character and attitude of the defendant indicates that he or she is likely or unlikely to commit another violation;

5) whether the defendant's conduct was the result of circumstances unlikely to recur;

6) whether a license suspension would cause excessive hardship to the defendant and/or dependents; and

7) the need for personal deterrence.

Even when a police officer detects a strong odor of marijuana during a traffic stop, the officer may not conduct a warrantless search of the vehicle according to an Appellate Division opinion released on Friday.

The case, State v. Pompa, involved a truck driver who was pulled over by a state trooper because it appeared that someone had tampered with the vehicle's DOT number. The officer conducted an administrative inspection of the vehicle. During the stop, the driver appeared nervous, there were several air fresheners hanging in the vehicle, and the officer noticed a strong smell of marijuana coming from the sleeper cabin.

The officer conducted a search of the cabin without first obtaining a warrant or the driver's consent. He opened a closed duffel bag and discovered twenty to twenty-five freezer bags filled with marijuana. The driver was arrested and indicted for first degree possession of marijuana with intent to distribute (NJSA 2C:35-5(a)(a), NJSA 2C:35-5(b)(10)(a)); second degree conspiracy to possess marijuana with intent to distribute (NJSA 2C:5-2, NJSA 2C:35-5(b)(10)(a); and fourth degree possession of marijuana (NJSA 2C:35-10(a)(3).

At trial, the defendant moved to suppress the evidence of the marijuana, but the trial court judge denied the motion. The defendant was found guilty on all counts and was sentenced to ten years of prison with four years of parole ineligibility.

On appeal, the Appellate Division reversed the conviction and remanded for a new trial suppressing the evidence. The appellate panel ruled that an administrative inspection of the vehicle was permitted, but a search of the sleeper cabin and duffel bag exceeded the scope of that search and required a warrant.

The opinion cited an earlier case, which stated that a warrantless search of an automobile is permitted only when 1) the stop is unexpected; 2) there is reasonable cause to believe the vehicle contains contraband or evidence of a crime; and 3) there are exigent circumstances that would make it impractical to obtain a warrant. The appellate court found the first two requirements had been met, but found in this case that there were no exigent circumstances and that the trooper had an opportunity to obtain a warrant.

The case is a reminder that there are limits on police searches, and police may not search a person's vehicle without a warrant unless certain exceptions exist. When an officer exceeds his or her authority to search a vehicle, the court may suppress any evidence found as the result of an improper search.

Even where a small amount of marijuana is found, the penalties can be severe. For example, a driver who is convicted of operating a motor vehicle with a controlled dangerous substance in the vehicle faces a two year driver's license suspension in addition to fines. Other criminal charges may also result in fines and incarceration.

There are ways to fight such charges or negotiate a plea deal that results in probation or a fine. Knowing how the law applies to your specific circumstances could make a difference in how your case is resolved.

An appellate panel affirmed the conviction of a DWI defendant who refused to take a breathalyzer test, even though the defendant asserted that he did not know enough English to understand the police officer's pre-test statement. It was not enough to assert a lack of understanding, the Appellate Division ruled in an opinion released yesterday. Rather, evidence must be introduced to show the defendant's lack of understanding.

In State v. Kim, the Court held that "[t]he mere allegation that defendant did not have sufficient comprehension of the English language to knowingly refuse to submit breath samples does not place a material issue in dispute to require an evidentiary hearing. . . let alone void the basis for his conviction."

At times, as the police officer spoke during the stop in question, the defendant stated that he did not understand what was being said. However, the Appellate Division found that the defendant understood English, and was even familiar with his rights, including the right to an attorney and the right to decline to make a statement.

The opinion makes it clear that any question about a defendant's ability to understand the police officer's statements must be raised in a motion, and evidence of the defendant's ability to understand must be offered to the court. It is not enough merely to assert that the defendant failed to understand the officer.

The opinion also underscores the importance of identifying all issues and raising them in a timely manner so that the court has an opportunity to develop the evidence on the record. Failure to do so could mean the difference between conviction and acquittal.

In an opinion released yesterday, the New Jersey Appellate Division ruled that a DWI defendant who was previously convicted of refusing a breathalyzer test requires sentencing as a repeat offender.

The case, State v. Ciancaglini, involved a Monmouth County woman who was previously convicted of DWI in 1979, and of failing to submit to a breathalyzer test in 2006. She was again convicted of DWI in 2008.

The municipal court sentenced her as a third-time offender to six months in jail, a $1,006 fine, ten-year loss of license and vehicle registration, 12 hours at an Intoxicated Driver Resource Center, and other fees.

On appeal, the Law Division held that she should have been sentenced as a first time offender because the 1979 conviction occurred more than ten years ago and the conviction for refusal to take a breathalyzer test did not qualify as a prior conviction for DWI. The Law Division sentenced her as a first time offender to 30 days in jail, a $500 fine, 12 months license revocation, and 12 hours at an Intoxicated Driver Resource Center.

The Appellate Division disagreed and reinstated the original sentence.

An opinion released Tuesday by the New Jersey Supreme Court interpreting the state's unsafe driving statute offers some good news and some bad news for drivers hoping to avoid points on their licenses.

Since the unsafe driving law went into effect in 2000, it has offered drivers in some circumstances a way to avoid having points assessed for moving violations. In some cases, drivers may have the opportunity to plead guilty to Operation of a Vehicle in an Unsafe Manner. The penalty involves payment of a fine and court fees without any points. However, the wording of the statute has been the subject of much confusion. It prohibits drivers from taking advantage of the exemption three times where each offense is within five years of the prior offense, raising questions about how the five-year limitation should be measured.

Last year, the Appellate Division took up the issue in State v. Patel. In that case, the driver had three offenses within five years of each other. On her fourth offense, she was assessed points. She argued that she should be allowed the exemption on the fourth offense because although it was within five years of her third offense, it was not within five years of her first and second offenses. Thus, she only had two offenses within the last five years. The Appellate Division disagreed and held that five years must pass from the prior offense before the exemption becomes available again.

Also in that opinion, the Court stated that points will be assessed upon a third unsafe driving offense within five years of the prior offense. After five years have passed from that offense, the driver would once again become eligible for the exemption.

The Defendant appealed that ruling to the New Jersey Supreme Court. The Supreme Court agreed with the Appellate Division's opinion that the Defendant should be assessed points because her fourth offense was within five years of her prior offense. Even though more than five years had passed from the first two offenses, each offense occurred within five years of the one prior.

However, the Court disagreed with the Appellate Division over the availability of the exemption on the third conviction. The opinion stated that the exemption applies to the third offense, no matter when the third offense takes place.

The opinion offers a mixed bag for drivers. The good news is that a driver qualifies for the exemption on a third offense no matter when it takes place. The bad news is that when a driver has three offenses each within five years of the last, he or she must wait five years after the third offense before the exemption will again be available.