Friday, September 24, 2010

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.

Wednesday, September 8, 2010

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 publically which I would imagine was not an easy thing to deal with. I wish her well.

Monday, July 19, 2010

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.

Wednesday, June 23, 2010

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.

Sunday, June 13, 2010

"Fugazi" (Fake) NJ DWI Lawyer Websites

Time after time, I find that content from my websites (http://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.

Legendary football coach Vince Lombardi said, "The measure of who we are is what we do with what we have." If what you "have" as a lawyer is my work product, then what does that lawyer really have - and what do they "have" to offer clients facing a dwi charge in New Jersey? Lombardi also said, "The quality of a person's life is in direct proportion to their commitment to excellence, regardless of their chosen field of endeavor." If a lawyer's "commitment to excellence" entails copying my work onto his website, then where is that lawyer's true "quality?"

Vince Lombardi was not a fugazi; he was a man of quality with a genuine and passionate heart for excellence. 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 websites:

www.njdwidefense.com

http://www.newjerseydwi.com/


If anyone has any other comments, please post through the link below - and remember, please don't be a fugazi.

To watch the "Fugazi Diamond" scene from the Movie Donnie Brasco go here: http://www.evtv1.com/player.aspx?itemnum=5712 - let the clip load and hit the play button

Monday, May 3, 2010

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/
http://www.njdwidefense.com/

Tuesday, February 23, 2010

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

Wednesday, February 17, 2010

THE SMART CONSUMER GUIDE TO NJ DWI LAWYERS

THE SMART CONSUMER GUIDE TO NJ DWI LAWYERS

FOUR THINGS THAT YOUR LAWYER MIGHT NOT WANT YOU TO KNOW.



By: Greggory M. Marootian, Esq.

New Jersey DWI Defense Lawyer

www.newjerseydwi.com



“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. He 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. He 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 much 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. He 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. He 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?

Monday, February 15, 2010

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.

Thursday, October 1, 2009

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.


Thursday, September 17, 2009

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.

Friday, September 11, 2009

NJ DWI Appeal

I am currently handling an interesting dwi appeal. My client was convicted of his second dwi in Municipal Court after a trial. He was sentenced to, among other things, a two-year loss of his driver’s license. He hired an experienced criminal defense lawyer. The lawyer then passed the file off to an associate; a young attorney who had only recently graduated law school and passed the bar examination. The trial ended in a guilty verdict, but I believe the case could have been won with more effective defense.


The trial transcript was painful for me to review. The young lawyer was completely out-classed by an experienced and savvy prosecutor. Moreover, the defense lawyer made fundamental errors in his defense. For instance, he asked questions during cross examination that served only to bolster the State’s case. The State’s case went in very weak. Rather than limiting his questioning, his questions allowed the State’s witnesses to set forth damaging testimony against the defendant and clarify what was otherwise neutral testimony. This was one of several fundamental trial error I believe were made.

I got the impression that the lawyer was working off of a script of sorts, and rather that taper the questioning around the testimony, he stuck to his script. It was unfortunate that this young lawyer was sent out to “cut his teeth” on a case with such severe consequences to my client.

I am a baseball fan. Many games are won on pure “fundamentals.” Similarly, trials are often won or lost on pure fundamentals. The State has the burden to prove their case beyond a reasonable doubt - the defense has no obligation to assert a defense, and the defendant has a constitutional right to remain silent. Very often, clients want to know what the defense “strategy” will be - what the “game plan” if you will is even before the State’s case is reviewed. The best strategy has to hinge on knowing the pure fundamentals - in the game of criminal defense (and dwi defense), the fundamental principle is that the State has the burden to prove guilt beyond a reasonable doubt. If they have not met the elements, game over; the defense wins. If they have not proven the elements, do not pursue a defense strategy that will allow them to do so.

New Jersey DWI Defense Lawyer Greggory M. Marootian, Esq.

Tuesday, September 9, 2008

Emotional Roots Of Alcohol Abuse

After years of defending people charged with drunk-driving, I have seen human suffering embedded in hearts and souls that make many people feel overwhelmed, ashamed, alone, and depressed. I have counseled clients weighed down by problems with complex and deeply-embedded layers that are seemingly impenetrable. I see people who feel like nobody could possibly understand their pain – people who feel ashamed, embarrassed, depressed, alone, and unworthy.

I have represented and counseled rape victims, victims of childhood abuse, adults who grew up with abusive parents, adults in abusive or poorly-rooted marriages, adults who inexplicably lost parents or loved ones, and adults who had a parent or loved one abandon them. Their depression, bitterness, anxiety, and low self-esteem are real and intense. That human suffering – the desire to get out of pain, is at the root of the alcohol abuse.

Chris Prentiss, the founder of “Passages”, a premier addiction treatment center, says that “[a]lcohol and drugs are not the problems; they are what people are using to help themselves cope with the problems.” (“The Alcoholism and Addiction Cure”, Chris Prentiss).

According to Prentiss, “[a]lcohol is just a quick and easy way to change ordinary, everyday reality from unbearable to bearable. All it takes is a short trip to the liquor store and a few drinks. People who are dependent are merely using alcohol as a crutch to get through the day. Yet doctors and scientists are still treating "alcoholism" as if it is the problem, when it has nothing at all to do with the problem. They might as well be studying "scratchism" for people who have a chronic itch.” (“The Alcoholism and Addiction Cure”, Chris Prentiss).

According to Dr. Keith Ablow, all addictions have a “common denominator … addicts are turning away from underlying emotional pain, always rooted in their life stories.” (New York Post, August 19, 2008).

According to Dr. Ablow, “[a]ll too often … attempts to cure addictions neglect to acknowledge their psychological cause - the why that explains a person's determination to use one thing or another to try to run from unconscious conflicts, grief or low self-esteem. And without getting to the why, cures remain elusive.” (New York Post, August 19, 2008).

Dr. Adlow identifies what he calls “three truths about addiction (New York Post, August 19, 2008):

First, “[a]ddiction to anything - food or alcohol or an illicit drug or sex - is a symptom of an underlying psychological problem, not the whole of the problem. Insist on treatment that addresses the motivation for your behavior, not just the behavior itself.”

Second, “[t]he emotional fuel for addictions is more easily discovered than most people believe. You don't have to spend years in therapy to find the psychological key that unlocks real healing. But you do have to make that exploration a priority.”

Third, “[a]ddiction often masks underlying major depression or an anxiety disorder or attention-deficit disorder. Treating those conditions can have a very significant impact on your long-term well-being.”

In the book “Terry: My Daughter's Life-and-Death Struggle with Alcoholism”, former Senator George McGovern talks candidly and heart-wrenchingly about his daughter’s struggle with alcoholism. His daughter, Terry, died at age 31 when she froze to death after she passed out drunk, outside of a bar.

The book is very moving. One thing that was telling for me as I read the book was that Terry McGovern’s alcoholism morphed. Her abuse of and reliance on alcohol, caused her more problems and pain. That pain caused her to turn to alcohol to numb the pain – the pain caused by her alcohol abuse. It was a proverbial “vicious cycle.” I see this often with clients who are suffering from depression and anxiety. Unfortunately, these clients who are already in pain have added worry and depression after getting charged with a dwi.

I do not have all of the answers to this complex human issue. I do know however, that human suffering is the root cause of many dwi offenses. People who judge dwi defendants harshly and see only the offense, are myopic in their thinking. Many dwi defendants are merely people who have deeply-embedded pain that they are trying to medicate. Have comments? - Leave your thoughts by following the comments link below.

New Jersey DWI Defense Lawyer, Greggory M. Marootian, Esq.

Monday, March 24, 2008

State v. Chun - NJ Supreme Court Alcotest Ruling

On March 17, 2008, the New Jersey Supreme Court (the highest New Jersey Court) decided the case of State v. Jane H. Chun. The Chun-Defendants challenged the reliability of the “Alcotest”, a breath-testing machine that replaced the “Breathalyzer.” The New Jersey Supreme Court disagreed with the general defense thrust, and found that the technology is generally reliable. The Supreme Court relied in part, on the findings of Judge King, a retired Judge who was referred to as a "Special Master." The Court did however, impose a number of procedural safeguards.

I intentionally did not include my clients in the Chun litigation. My logic was this: a challenge to the general reliability of the machine would be unsuccessful, and the only benefit in the end would be to the State and not the defense. The benefit(s) to the State as I reasoned would be: 1. establishing the reliability of the machine, and 2. ironing out the machine quirks and defense issues. My reasoning was that the defense was better off operating in a state of ambiguity – in other words, the State needed the clarity, not the defense. I achieved great success in the Alcotest cases I intentionally kept at the lower court levels. I could have brought my clients into the fold of the Chun litigation, but believed that they would be better served by remaining in the lower courts. The success I had in Alcotest cases included an outright dismissal, suppression of Alcotest readings, and recently an acquittal after trial in a Union County Municipal Court.

The Chun litigation served to bolster the State’s use of the Alcotest, and clarified for the State, the defense challenges. My opinion is that the defense (i.e. the defendants) would have been in a better posture operating in a state of ambiguity because the burden of proof rests squarely on the State – the defense has no burden of proof.

This is not to say that there are no defenses to Alcotest cases. Through a careful reading of Chun, and a creative and bold application of the Court’s ruling, successful challenges are possible. I look forward to the challenges that lie ahead and remain committed to my representation of DWI defendants.

Greggory M. Marootian, Esq.

New Jersey DWI Defense Lawyer
www.njdwidefense.com

Thursday, February 28, 2008

NJ DWI Laws Are Unfair & Counterproductive.

Nearly every State allows for work/conditional drive's licenses for people convicted of DWI, particularly for first-time offenders. New Jersey is one of only a few States that does not provide conditional licenses. The Judge must suspend (unconditionally) the license of anyone who is convicted of DWI for the prescribed statutory minimum period – (ninety-days to one year for a 1st offense, two-years for a 3rd, and ten-years for a 3rd). Further, there is a strict prohibition against plea-bargaining a DWI charge.

The strict and unforgiving DWI law(s) in New Jersey fail to serve the aim of deterrence and may hinder rehabilitation. Harsh penalties create havoc on lives that may already be in emotional turmoil that caused the drinking and driving in the first place. Innocent family members who are relying on the drivers are negatively affected. For many offenders, a DWI charge is a wake-up-call. The stress, shock, shame, and embarrassment of being arrested, handcuffed, and having to stand in front of a Judge is a sufficient deterrent for many offenders. For many, (particularly multiple offenders), there is some underlying psychological condition that is causing the drinking. In other words, many people facing a DWI charge are “self-medicating” with alcohol to get out of pain and/or to change their emotional state(s). I have represented people suffering from varied and real emotional trauma that underlie the DWI offense (e.g. rape and child-abuse victims, people who have suffered unexplained loss of loved ones, people who have been betrayed by spouses, etc.). Penalties that are excessively punitive do nothing to help these people. Rather, the harsh laws may very well exacerbate their underlying psychological distress.

There is a prohibition against plea-bargaining DWI cases. A plea bargain is an agreement between the prosecutor and defense whereby the defendant will plead guilty to a lesser offense. New Jersey lawmakers have, for reasons that defy logic and fair play, singled out DWI as an offense that cannot be plea-bargained. The thinking is that DWI is a serious offense – the often-used lightening-bolt language used is that DWI causes “carnage” on the roads. However, murderers, rapists, child-molesters, armed-robbers, and other sociopath offenders cause greater havoc to society. Why are their offenses not targeted like DWI? These defendants can plea-bargain and make deals, but DWI defendants cannot. I believe that the distinction and targeting is simply unfair.

The targeting of DWI offenses (by not allowing plea-bargains, and not allowing conditional licenses) defies equality and fundamental fairness. Harsh New Jersey DWI laws do little to make New Jersey a safer and better place to live. Rather, harsh and unforgiving DWI laws allow other more serious and cold-hearted offenders to get breaks creating an illogically unfair system of justice. New Jersey DWI laws fail to deter, they punish families, and they push people who are already in emotional pain into greater despair. New Jersey DWI Defense Lawyer Greggory M. Marootian, Esq.