Criminal Law Questions? Ask a Criminal Lawyer.
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In order for me to better assist you, please provide the following information:
1. Is this your first offense?
2. Was there an accident?
3. Did you take field sobriety tests (eg. heel/toe, finger to nose, et.), and if so, did you pass?
4. Did you take a PBT?
5. Did you take a breathylzer at the police station? What were the results? or was there a "technical" refusal?
6. Are you charged with anything else?
7. Are you having a jury trial or a judge trial?
8. If you didn't take a breathlyzer, did you take a blood test?
I've not heard of being denied a jury trial for a misdemeanor/jailable offense. Are you sure that you didn't waive the jury?
Even if the judge would have allowed you to plead guilty to reckless driving (over the objection of the prosecutor) the prosecutor probably would have filed an appeal and won.
It is unacceptable that you have been waiting 40 1/2 months and have had 20 court appearances and have yet to have your trial.
As you are probably aware, the maximum penalties for a first offense DUI with a breathlyzer result of .08% but less than .10% are:
Loss of license for 30 days;
$250 to $400 in fines plus mandatory fees and surcharges;
Up to 30 days in jail;
12 to 48 hours IDRC (Intoxicated Driver Resource Center)
Failure to pay DUI surcharges
Whether or not you are able to "win" depends on MANY factors.
1) did the police have reasonable suspicion to pull you over... The answer will most likely be "yes" because of the testimony of the officer who will say you were "speeding" or driving in a "careless manner.
2) did you pass the certified field sobriety test?
3) Were you read your Miranda rights? (applies only if you are IN CUSTODY and INTERROGATED about the offense) If you were entitled to Miranda rights and they were not given to you, your attorney should ask that any evidence, including your answers to questions, be quashed. That way, the breathlyzer would probably be out!
4) Did you read and sign your breathlyzer rights?
5) How credible is the officer's testimony?
6) Because you blew a .09, could the results be challenged because of a malfunction in the machine? Was the breathlyzer callibrated by the police? If so, when? Your attorney is entitled to see the log sheets as to such callibration.
7) Did anything skew the breathlyzer results? Were you watched for a period of time before given the test? Did you swallow anything, vomit, belch, etc. before taking the test? If you did, then the officers would have to wait another period of time to administer the test. If they didn't your attorney could ask that the results be supressed.
These are just some of the issues that your attorney could raise either before trial at a special hearing, or at trial. If anything, the lack of the police to properly perform their duties with respect to a DUI can raise "reasonable doubt" in the mind of the judge/jury.
Can you win? MAYBE....IT DEPENDS.....nothing is ever guaranteed. Heck, maybe the officer won't show up for trial, and your attorney can ask for a dismissal! Unfortunately, this is unlikely. Also, it depends on the testimony and credibility of the officer, the reliability of the breathlyzer machine, and whether you were properly watched before blowing. It also depends on any other evidence that is allowed under the court rules and rules of evidence. It also depends on the answers to the issues raised above...Remember, the questions that are asked of witnesses are NOT evidenced, only the ANSWERS are evidenced.
Just Remember...YOU ARE PRESUMED INNOCENT until proven guilty BEYOND A REASONABLE DOUBT. It is the prosecutor who has to prove each and every element of the crimes beyond a reasonable doubt. It is a high burden. You do not have to prove anything. If the prosecutor fails to prove EACH and EVERY element of the crimes BEYOND A REASONABLE DOUBT, then the judge/jury must find you "not guilty"
If you are found guilty, or somehow plead guilty, you will be receive a presentence investigation, including an alcohol screening--whether you show signs of substance abuse. You will be able to go over you personal history, your version of the events, etc. If you believe that you were drunk at the time of the arrest, it is VERY important that you tell the screener that you take responsibility for your actions, and that you are remorseful. Judges appreciate that. Because, if you plead guilty or are found guilty, it is all about DAMAGE CONTROL, and putting your best foot forward. Your attorney and you may speak at sentencing. Again, it will be very important to stress the POSITIVES about you. All of the positives may influence the discretionary portion of a judge's sentence. For example, jail is NOT mandatory....you could get probation instead, etc.
I don't mean to presume that you will be found guilty, I'm just giving you a head's up! You really need to have a SERIOUS discussion with your attorney about your chances of winning. YOU and your attorney should know the evidence that will most likely be presented and whether the prosecutor can prove his/her case. If you proceed with a trial, what are your defenses? These are all things that you and your attorney should have talked about by now, or need to do so prior to any trial.
I don't know what happened, I tried to update my post and dont know if it went through. If not, I answered your question before you posted your second reply.
Unfortunately, it was in the officer's discretion as to whether you should receive a speeding ticket. He instead, wrote you for careless, meaning that your driving put property/people at risk.
Regarding the radar, any radar results SHOULD be in his report. Your'e right, if they are not, how can he remember the stop 401/2 months later! Also, if there was a radar used, you need to find out if it was calibrated before and after his shift. If not, how can he prove that it was working when he pulled you over.
Also, if there was any video of the stop, if it is in your favor, use it. If not, your attorney should try to minimize the tape. And....if there was a video taken, does the prosecutor have it now? If not, why not?
Your thought process is correct in trying to attack the officer's credibility. But be careful, some of your questions may be objected to by the prosecutor and deemed irrelevant by the judge. You want to avoid too many "irrelevant" questions.. It only angers the judge.
You can't "clock by eye". The officer can only visually estimate your speed if there is no radar. So...you can ask how he visually estimated your speed... Again, attack the credibility of the officer.
Also, the amount of time that has passed is definitely in your favor. Memories fade. Your attorney needs to really hit hard on this.
Your motion to dismiss tomorrow may be ruled untimely.....that it should have been brought long before the trial date. Also, it is your attorney who must ask for the hearing on your motion.....unless you decide to represent yourself. I wouldn't advise that. But, it's always worth a shot.
And if things do go south, you can always appeal and ask for a stay.
Again BEST OF LUCK.....It sounds like you have been preparing. Good for you!
You should definitely take notes during your trial and if your attorney misses a question that you want asked, ask him to address it. If the attorney doesn't think that the question will be allowed under the court rules, he will tell you and it shouldn't be asked.
There is no video of the stop nor at the police station, this town does not have video. Also, as the the speedy trial arguement, well, the arguement speaks for itself, and weather or not the judge thinks it is untimely or not, I want it on the record, all 36 pages. The NJ Supreme Court Ordered my case to proceed to trial on January 10, 2006, and i invoked my speedy trial rights several times. I have the right to submitt the 36 page affidavit on what occured.
To answer you 1) I did not want to plea bargain my case, ever, you must have misunderstood what I wrote. 2) the 20 appearances over 40 1/2 months has yet to even yeild a hearing on the charges or miranda. 3) I was not driving in a careless manner, the report does not say this. The report says I was pulled over for speeding by radar, and says nothing of visual estimate of speed. I say I was not the car that was speeding. I was pulled over 2 miles down the highway from where the officer was running radar. I think we cross hard on this. 4)There was only one certified field sobriety test given, standing on one leg, and that can be overcome because I am more than 50 pounds overweight. Three tests are suppose to be given to determine intoxication. The one leg test is only 65% accurate on its own, ... so 35% doubt, and that is reasionable doubt . I think we cross hard on this too. 5) I did read and sign my mirada and breathalyzer rights sheets, were they the right sheets, I do not know, this is for my attorney to handle. 6) The credibility of both the officer's is going to be attacked based on memory of every event. After 40 1/2 months, and they each having thousands of cases since then, should be a good start for us to attack their memories. 7) We have calibratioon sheets, not sure we have everything the NJ Supreme Court says we should in the final decision of State v Chun. This is for my attorney's expert witness to tackle. I know we do not have the work sheet the State was instructed to conplete by the NJ Supreme Court. I want to testify as an expert witness myself as to the Alcotest, in as far as general rules for chemical analysis data requirements, as an expert in the field of analytical chemnistry for 20 years, and this is something not adressed in State v Chun, so as the final decision in that said, I can raise any challange not adressed in Chun. 8) As far as burping or anything before the test, I think we can cross hard on this, as the officer certainly is not going to remember for this long ago. Cross hard on this. 9) The last thing I guess is the Speedy Trial motion to dismiss, .... actually it is the first thing, and most important aspect of this entire case. Regardless of what I am being accused of doing, the civil rights violations, especially with regards XXXXX XXXXX court order, are far more serious , because it goes to the integrity of our government.
You have certainly done your homework!
As far as your motion to dismiss, so long as your attorney makes the motion, even if it is denied, it may be a matter for appeal. The fact that the motion is made is the important thing. You may not be able to read it into the record. If not, again, it may be a matter for appeal, and possibly used as an exhibit in the appeal.
I doubt (although it isn't impossible) that the judge will qualify you, as a defendant, as an expert...even though you may be one. Hopefully you have an independent expert who will testify.
I agree with you that the integrity of our government is foremost. That's why we have trials and appeals. That's also why there is a judicial tenure commission (if there is judicial misconduct) and an attorney grievance board.
I'm truly at a loss as to the delay in your trial if the Supreme Court ordered it to proceed in 2006. You REALLY need to discuss this with your attorney.
It sound like YOU are prepared. Let your attorney do his/her job...but remember, take notes about issues and questions that you want your attorney to answer. Remember the officer's credibility is ALWAYS at issue!
Go Get 'Em!
my attorney and I have discussed the court order of jan 10, 2006 several times, .. many times, .... he understands it, I understand it. But the problem is alot of the nj municipal courts didnt want to obey it, because they would be sentencing some defendants who would come back for post conviction relief after being foun d guilty at a trial, and many defendants who would be bringing up asp[ects after their sentece was stayed under the order , after a trial, until such time state v chun weas decided by the bj supreme court. That is not a valid excuse not to obey the court otder. There is no reasonable excuse to not obey a court order, especially one from the nj supreme court, ..... below is a copy of it, keep in muind when reading it, this particular municipal court i am in piled up 92 dui cases without one trial, all pending by the time the order became moot on march 17, 2008, 26 months after the order.....
SUPREME COURT OF NEW JERSEYSeptember Term 200558,879
STATE OF NEW JERSEY,
v. O R D E R
JANE H. CHUN, et al.,
The Court having previously certified the within matter directly pursuant to Rule 2:12-1 and having contemporaneously appointed retired Appellate Division Presiding Judge Michael XXXXX XXXXX as Special Master,And the Court having remanded the matter to Judge King to develop a record, conduct hearings, and report his findings and conclusions on an accelerated basis,And the Court having concluded that it should expand on its prior Order by addressing issues that affect the prosecution of N.J.S.A. 39:4-50 offenses statewide,And good cause appearing;IT IS ORDERED that this Order shall apply to all N.J.S.A. 39:4-50 prosecutions in Municipal Courts and appeals in the Law Division and Appellate Division of Superior Court; and it is furtherORDERED that N.J.S.A. 39:4-50 prosecutions and appeals that do not involve the use of an Alcotest device are to proceed in the normal course; and it is furtherORDERED that the prosecution and appeal of cases involving repeat offenders under the statute shall proceed in the normal course, and sentences imposed on such defendants shall not be stayed unless the conviction is based solely on Alcotest device readings; and it is furtherORDERED that first offender prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as the relevant Alcotest readings; and it is furtherORDERED that at the conclusion of each such first offender trial, if the court determines that the defendant is guilty of an N.J.S.A. 39:4-50 offense, it shall include, whenever applicable, an articulation of the alternative bases for that finding when imposing a sentence pursuant to the statute, see State v. Sisti, 209 N.J.Super. 148, 151 (App.Div. 1986), State v. Kashi, 360 N.J.Super. 538, 544 (App.Div. 2003); and it is furtherORDERED that the execution of sentences imposed on first offenders shall be stayed pending disposition of the within appeal unless the court determines, after considering the severity of the incident and the prior record of the defendant, that the public interest requires the immediate execution of the sentence; and it is furtherORDERED that any and all requests for a reliability hearing in respect of Alcotest devices are stayed pending the filing of the Court's final decision herein, at which time all pending challenges to an Alcotest device's reliability shall be decided consistent with the Court's disposition; and it is furtherORDERED that any and all orders of municipal courts and the Superior Court, including but not limited to the December 12, 2005, orders of Judge Walter R. Barisonek, A.J.S.C., (State v. Casey L. Grogan) and Judge B. Theodore Bozonelis, A.J.S.C. (State v. Michael Dilger, et al.) are vacated to the extent that they conflict with this Court's Order of December 14, 2005, as modified and supplemented by the within Order; and it is furtherORDERED that consistent with the Court's prior reminder in its December 14, 2005, Order thatall Superior Court and Municipal Court judges before whom N.J.S.A. 39:4-50 proceedings are pending, or before whom such proceedings are brought during the pendency of this appeal, must ensure that the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey are strictly enforced,
a defendant who challenges the use of Alcotest-related evidence may enter a conditional guilty plea pursuant to Rule 7:6-2(c), reserving the right to apply for relief from the municipal court should the appeal before the Court result in a determination that the Alcotest devices are not reliable; and it is furtherORDERED that the Acting Administrative Director of the Courts shall circulate this Order forthwith to all judges of the municipal courts and the Superior Court, Law Division and Appellate Division.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 10th day of January, 2006.
/s/ Stephen W. TownsendClerk of the Supreme Court
CHIEF JUSTICE PORITZ and ASSOCIATE JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in the Court's Order.
It seems, based on the facts as you presented them, and the SC Order, that you may have a shot at an appeal, if necessary. But remember, there are unfortunately, no guarantees. Just give it your best shot!
Notice, at the end of the Order, the supreme court is telling the acting admistrative director of the courts to circulate this Order. That person is XXXXX XXXXX. ...... In Nov of this year I emailed my United States Congressman, XXXXX XXXXX (r) (20 years in service) about the delay. Smith sent it to a NJ State Senator, who sent it to my State Senator, Jennifer Beck (r). Beck's office than tried to contact the municipal court several times about the delay, were stonewalled, so they called XXXXX XXXXX, and sent Anderson everything I wrote to Beck. Now all of a sudden my case is important. The case should have been important on September 17, 2005!
Let your attorney (that's what s/he's being paid for) do his/her job at trial. Your job is to be able to assist in your defense, and not allow the prosecutor or judge SEE YOU SWEAT.
Hang in there!
my ARGUEMENT FOR PREJUDICE IS TO LET IT ALL HANG OUT AS TO STRESS ANXIETY, AND DEPRESSION, i should not , nor will not., put on a show that i am ok..... I must be real, I have to show any way i can what the delay has done to me, ...... it is not contrived, or set up, it is real, and i will not hide it, .... it is a foundation of the predjudice argument, that the delay has driven me crazy, .. and i will not put on a facade that everything is ok when it is not! I SEEM TO BE THE ONLY PARY WILLING TIO BE HONEST IN THIS CASE,L BUT BELEIVE YOU ME, I WILL CONTINUE TO WEAR MY HEART ON MY SLEEVE, NO MATTER WHAT.
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