Frequently Asked Legal Questions and Answers About Driving While Intoxicated, DUI,  and Criminal Law defense

A. The answer is almost always yes.
If you don’t take the breathalyzer then the police can charge you with refusing to take the breathalyzer. This carries the same penalties as drunk driving, except jail time. It is also in addition to any sentence for drunk driving. For example, for a first time drunk driving offense you can lose your license for up to one year. And, if you refuse to take the breathalyzer, you can lose your license for up to one additional year! Thus, for a first time drunk driving offense and a refusal to take the breathalyzer, you are facing a loss of license for two years.

Another reason to take the breathalyzer is that it is very easy for the police to prove a refusal. The standard of proof is less - preponderance of the evidence - and anything other than an unequivocal yes is a refusal. It is harder for the police to prove the correct operation of the breathalyzer than a refusal to take the breathalyzer.

Next, the police must prove that they had probable cause to believe that you were operating the vehicle while under the influence of alcohol (or drugs). This is a separate requirement in New Jersey. Generally the police do a series of field sobriety tests. There are only three recognized tests - walk and turn, one leg stand, and horizontal gaze nystagmus - and they are scored by different factors. Even if properly administered by the police, they are only 80% accurate if you fail all three.

Finally, they have to prove that the breathalyzer was in proper working order, that the breathalyzer was given by a properly trained policeman, and that you took two tests within 15 minutes of each other that were within .01 of each other.

As you can see this is complicated. Which means that you can win. You should pay an attorney with experience in this area to defend you. After all, how much is your license worth to you?

A. I split my fees so that there is one fee for representing you without a trial and another for representing you if a trial is necessary. I don’t charge you for a full-blown trial up-front because it is not always necessary to try these cases. Often, these cases can be worked out with an expert’s report, or a motion to suppress. There is not always a need to go to trial. This saves you money and permits you to make an informed decision about whether you want to go through the time and expense of a trial.

A. Yes, I accept VISA, MasterCard and American Express.

A. No.
There is no such thing in New Jersey. If you are convicted of drunk driving, you cannot drive at any time while your license is suspended. If you do, you risk mandatory jail and additional loss of license.

A. Not in New Jersey.
Even for a third, or more, time offense within ten years. Even though the penalty for a third time offense is up to 6 months in jail and a ten year loss of license.

A. No, New Jersey cannot take your license if it is an out of state license. However, New Jersey can suspend your driving privileges in New Jersey. So, even if you have an out of state license, you cannot drive in New Jersey if you license has been suspended for DWI.

New Jersey, as a member of the Interstate Driver’s License Compact, will notify the state in which you have a license that you have been convicted of drunk driving. That state, your home state, may very well suspend your license.

A. Generally yes, but that depends on what the standard of proof and level of intoxication is for the state in which you were convicted. If, for instance, your state has a .08 level for driving while intoxicated (New Jersey is 1.0), and we can prove that your reading was less than 1.0, this conviction may not be used for sentencing in New Jersey. Sometimes a drunk driving conviction in another state is not at the criminal standard, beyond a reasonable doubt, but a lesser standard. This too may prevent your out of state conviction from counting.

A. You cannot drive a commercial motor vehicle with a blood alcohol concentration of greater than .04% or under the influence of drugs. Essentially, you cannot drink any alcohol while driving a commercial motor vehicle. However, if you are operating your private vehicle, not for hire, the standard for drunk driving is the same as everyone else, 1.0. Again, if convicted you will lose your license in New Jersey, or your right to drive, for six months to a year for a first time offense.

A. If you are convicted, you will lose your license for 30 to 90 days. The standard, however, is 0.01% or more. Essentially, you cannot drink any alcohol and drive if you are under 21.

A. Yes, there are other serious motor vehicle infractions which can require a period of license suspension. Driving while your license is suspended (driving on the revoked list) is one. Leaving the scene of an accident is another. Excessive speeding is one. Conviction of a drug offense is another.

Each of these offenses can be dealt with in various ways. What you need to do is seek counsel experienced in these matters. I am experienced in all of them.

Not necessarily. It depends on what the tickets are for and in what county the tickets were issued.

A. PTI, or PreTrial Intervention, is a once in a lifetime opportunity to avoid prosecution for a crime in New Jersey. It is similar to ARD in Pennsylvania, and ACD in New York. However, there are specific standards for granting or denying PTI, and unlike Pennsylvania these reasons can be reviewed by an appellate court. In theory, it is available in all crimes. In practice it is generally available for third degree crimes and for certain drug offenses in Municipal Court. It is not available for drunk driving offenses. If you are admitted to PTI you do not have a criminal conviction, you do not lose your driver’s license, and you do not go to jail. You pay a fine.

Whether you get into PTI or not often determines whether you go to jail or not. For instance, if you give someone marijuana, and you happen to be within 1000 feet of any school, you must go to prison unless you get into PTI. For most second degree crimes, because there is a presumption of imprisonment, you must go to prison unless you get into PTI.

PTI is available to first time offenders only. Wether you get in or not often makes a crucial difference to you. That is why you need an attorney Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney to represent you in these matters.

A. It depends on what your conviction is for. If you have only one criminal conviction, or up to three disorderly persons offenses (misdemeanors) you can have them expunged. If you were convicted of possession of drugs with intent to distribute, and it was a third degree offense, it may be expunged.

Expungement means that these convictions will be removed from your record. They are segregated in a separate room in Trenton, and are available only to law enforcement. This includes any arrest record as well. Expungement is not automatic in New Jersey. You must apply for it and be granted it by a Superior Court judge.

If you need a license, such as a securities broker, or you need to be bonded, expungement may be the answer for the one mistake you have made in an otherwise law abiding life.

A. Under the U.S. Constitution you are entitled to be free from unreasonable searches and seizures. The same is true under the New Jersey constitution. However, persons in New Jersey have a much greater right to be free of these searches than a person has in Federal Court because New Jersey gives greater protection. The police cannot simply search the interior of a car in New Jersey. The police cannot even require the passenger to get out of the car in New Jersey unless the police have probable cause to believe the passenger is committing a crime. The police cannot search if the warrant is defective, even if they have a good faith belief that the warrant is proper.

Motions to suppress evidence illegally seized can be crucial, particularly in drug crimes. If the drugs have been suppressed, the State cannot prosecute you for the drug crime. Motions to suppress can be crucial in other crimes as well, such as murder, burglary, theft, etc., since if the State cannot use the evidence it may not be able to prosecute you. Motions to suppress apply in municipal court as well, and are often just as crucial.

Criminal charges are serious matters. Your liberty is often at stake. As an attorney  Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney , I am well qualified to represent you in all these matters.

A. The police do not have to read you your Miranda rights - yes, the same ones you see on TV -if they don’t question you. The police are entitled to ask routine, on the scene questions. However, once you are in custody, the police cannot question you until and unless they have read you your Miranda rights.

The police often use Miranda rights as a means to get to talk to you. They will routinely ask you if you waive your rights and wish to speak to them. Simply say no. Nothing is going to happen if you simply say no. If you answer their questions, you are likely to be implicating yourself in the crime they are investigating. In fact, in my 20 years of doing criminal defense, I have never seen one instance where talking to the police before you talk to a lawyer has helped. It only makes things worse for you, since most crimes are solved by a confession. Once you give a statement, the prosecutor will use it against you.

If you have any doubts, ask for a lawyer. The police cannot talk to you again until you have spoken with a lawyer.

You can always talk to the police after you have spoken with a lawyer. But once you say anything to the police, they will use it against you.

Using these rights can often make the difference between prison, and freedom. I was representing a client who was accused of murder. The police literally beat my client into confessing. Winning a Miranda motion makes the difference between going to jail for the rest of your life, or walking out of the courtroom a free man.

A. Yes, he has all the same rights. But he is not entitled to a jury trial, just a trial before a Superior Court judge. In fact, the police may not take a statement from him unless his parent or guardian consents. And generally the penalties are less. But the penalties are still serious. And your son may be waived up and tried as an adult, depending on the seriousness of the crime.

A. My philosophy is to try to avoid trial, if we can. Most of the time it is more helpful to you, the client, to be certain of the outcome, rather than risk the uncertainty of a trial. That is because the penalty after a conviction after a trial is up to the judge, not you and the prosecutor. The penalties after losing at trial are generally harsher than those that are negotiated before trial.

But if you decide to go trial, I am ready. Not only am I one of 305 lawyers  Certified by the Supreme Court of New Jersey as a Criminal Trial Attorney (out of about 70,000 lawyers in New Jersey), I have a Master’s Degree (LL.M) in Trial Advocacy from the number one school in the country for trial advocacy, Temple University Law School (according to US News and World Report). I am one of only about 200 lawyers in the entire country with this degree. I am ready to zealously advocate for your cause.

A. Yes.
I have represented persons in Brooklyn, Manhattan, New Jersey and Pennsylvania. Federal Court is a very different place than state court. You don’t find out what the FBI or the DEA has to say about you right away; sometimes not until after the agents testify at trial. You do not get the grand jury minutes. In Federal Court you can be held without bail, especially for serious drug crimes.

There is little plea bargaining in Federal Court. If convicted you are sentenced according to the Sentencing Guidelines, which in general are harsher than state sentences, and leave less discretion to the judge. The sentencing guidelines also require the judge to sentence you for the whole conduct, even if you have a different plea arrangement with the US Attorney. And you cannot withdraw your plea even though you receive a harsher sentence than expected. There is also mandatory full restitution.

Often however, you get too much discovery. The US Attorney will try and bury you with paper. You will see wiretaps and surveillance tapes galore. Trial will go on for weeks, sometimes months.

I have tried cases in Federal Court, and won an appeal before the Third Circuit.

A. I represent persons injured in accidents and settled cases for as much as $225,000. I represent professionals who are at risk of losing their licenses before professional boards, in New York as well. I represent tavern owners with regard to the Alcoholic Beverage Control laws (ABC) in hearings and on appeal. I represent federal and state employees in disciplinary proceedings. And I do residential real estate. I would be happy to represent you.

Q. How do I pay for your services? 
A. Our law office accepts certified checks and American Express, MasterCard and Visa credit cards.