Marijuana usage and driving – DWI?

Interesting New York Times article as States consider legalizing marijuana. How much marijuana in the blood, and therefore in the brain, constitutes impairment to safely operate a vehicle?

http://www.nytimes.com/2016/05/14/us/marijuana-driving-laws.html?_r=0

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United States Supreme Court refuses to hear marijuana related lawsuit filed by Nebraska and Oklahoma against Colorado.

The Supreme Court on Monday threw out a lawsuit filed by the states of Nebraska and Oklahoma against their neighbor Colorado over a law approved as a ballot initiative by Colorado voters in 2012 that allows the recreational use of marijuana.

Nebraska and Oklahoma asserted that marijuana laws in Nebraska negatively impacted their States, while Colorado countered, in part, legalize pot too and focus on more serious crime.

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Family Court, temporary and permanent restraints, assault and trial.

A few months ago, I was hired by a woman who had suffered physical abuse, assault, from her husband. The Police had come to their home and arrested her husband, but she was getting a lot of pressure from certain individuals to drop the charges, which included an upcoming hearing for permanent restraints. A temporary restraining order would be converted into a permanent restraining order and he would not be allowed to have contact with her.

Even though she was the victim, her daughter felt she needed me as her lawyer at trial in Middlesex County, NJ Court. It is often difficult to satisfy the test necessary to get permanent restraints – and for good reason. A person benefitting from a permanent restraining order can have the restrained person arrested somewhat easily by calling in a violation. (In fact last year I represented a defendant mired down in a complex case where her ex boyfriend, clearly versed in this area of the law, was able to persuade a desk officer at the local police department to write a domestic violence complaint, which a judge then signed, which the ex then used to have my client arrested numerous times, until we went to trial and had the restraining order dismissed.)

I obtained all the evidence in the Case, including computer aided dispatch reports from the police dispatcher to the on duty patrol officer, photographs and a taped interview with my client. I met with three police officers involved in the Case prior to trial, and reviewed evidence including photos that depicted my client’s injuries.

At trial this past Friday I had two of the police officers and my client testify. The defendant’s lawyer called two witnesses who were at the scene and the defendant, her husband. With careful cross examination, referring to the photographs and exhibits, we were able in closing to point out inconsistencies in the defendant’s story. Some were seemingly innocuous points – he testified he hid a cord under a blanket so his wife wouldn’t wield it, but I reminded the Judge in closing argument the first officer on the scene testified she saw the cord, which the defendant used to choke my client, on the floor when she arrived at the scene. The Judge nodded in approval – often times in “he said -she said” situations, if we find inconsistencies that render witnesses testimony incredible, the Judge, or Jury, don’t have to believe anything they say.

The Judge referenced the points I made in my closing argument in concluding the defendant’s version of the events was not credible, and provided my client permanent restraints against her abusive husband.
Domestic Violence is a very emotional and traumatic area of the law. It’s often difficult for victims to really feel they are getting the help they need, for a number of reasons, including their diminished self esteem from the confused trauma of abuse. I don’t tolerate bullies; I abhor physical violence to impose ones’ will on another. I saw the photos and knew I had to help my client feel protected from her abusive husband. The criminal case is still pending, if he has any contact with my client he will be arrested, and we are prepared to assist the State prosecutor in the criminal action as needed. For now, the prosecutor’s office can order the transcript of testimony from our trial as they build their case against the husband.

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“The Teen Brain: It’s Just Not Grown Up Yet”

An interesting article on the development of the teenage brain – hopefully helpful to the confused!

“Well, actually, that’s the developmental stage they’re at. They aren’t yet at that place where they’re thinking about — or capable, necessarily, of thinking about the effects of their behavior on other people. That requires insight.”

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Juvenile law – a different process than prosecution of adults…

Kids make mistakes. However, when those mistakes involve the law, it can lead to lasting consequences. Adolescents often commit crimes that don’t reflect their true character because they fail to consider the repercussions of their actions. When a child is accused of a delinquent act, they often need a lawyer to protect their best interests.

In New Jersey, individuals under the age of 18 are considered juveniles and, usually, prosecuted differently than adults. As children in the eyes of the law, minors can receive more protection from the court than adults do. The Juvenile Court System aims to assist and rehabilitate the child. Juveniles who commit serious offenses can be sent to a juvenile detention facility or a child welfare facility, while the preferable result is, of course, probation – a period of time where phone calls and possible monthly meetings assure no further violations, and then dismissal of the case.

If your child has been accused of an illegal activity, we understand that this is a stressful and frightening time for any parent. The Law Office of Jay Weinberg has experience helping children and their families protect their rights within the juvenile court system. We have represented young people on a wide variety of charges. Our representation includes discussions with adolescents on better decision making and impulse control, and how to improve their lives in specific ways, and the lives of those around them.

If your child is facing delinquency charges call Jay Weinberg today at (732) 247-4770.

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Is One Man’s Trash A Police Officer’s Evidence?

Can the police legally search through garbage?

The Fourth Amendment protects U.S. citizens against unreasonable search and seizures. Police officers must have probable cause or a warrant to conduct a search.

While you may consider someone rifling through your garbage an invasion of your privacy, in the eyes of the law, often it is not. Courts have ruled that law enforcement can search and seize abandoned property. When you place your trash out for collection, it is considered abandoned and you relinquish any expectation of privacy in it. Garbage sent to the curb is fair game for police officers to search and seize without a warrant or probable cause.

However, the Fourth Amendment does afford you some protection. You maintain an expectation of privacy over items that are not abandoned, which include trash inside your house, trash within your backyard or property surrounding your residence and trash that you carry.

Any evidence obtained lawfully can be used against you in Court. When you leave your garbage out on the curb, anyone can search through it without breaking the law. This includes the police.  The next time you put out your trash the night before pick-up day, you may want to think twice about what items are in there, and not just for criminal consequences.

While the majority of Courts have ruled in favor of lawful searches of trash, each case is different. If you feel that your rights have been violated because of evidence obtained in violation of your rights, call the Law Office of Jay Weinberg today at (732) 247-4770 to discuss your case.

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Pre Trial Intervention (“PTI”) is an excellent alternative to continued prosecution of Criminal Cases.

In New Jersey, N.J.S.A. 2C:43-12 defines the purpose of and the criteria necessary for admittance into a PTI program. All States have similar programs. Rather than continue criminal proceedings, the policy behind PTI is to provide applicants on an equal basis an opportunity to avoid prosecution by receiving early rehabilitative services or supervision when it can be expected to deter future criminal behavior. If the term of PTI is completed with no further legal problems, the charges can be dismissed.

Among other criteria, PTI Program Directors and Prosecutors consider specific criteria in determining whether to accept an applicant into PTI. The facts of the case, the likelihood of change through the program, the needs of the victim and society, the history of an applicant’s violence towards others, involvement in organized crime and other criteria are evaluated to determine admission.

If the Program Director and the Prosecutor deny admission into PTI, there are specific appeal processes that need to be followed. The burden on an applicant is significant – the challenge, to a Criminal Judge, is to be based upon alleged arbitrary and capricious action, and the Defendant has the burden of showing that the Program Director and Prosecutor abused discretion in processing the application.

In State v. Wallace, 146 N.J. 576 (1996) the New Jersey Supreme Court opined:

“It is fairly understood that the prosecutor has great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI. State v. Leonardis 73 N.J. 360, 381 (1977). The prosecutor’s discretion is not unbridled, however. If a defendant can clearly and convincingly establish that the prosecutor’s refusal to sanction admission into the program was based on a patent and gross abuse of discretion a reviewing court may overrule the prosecutor and order a defendant admitted to PTI. A “patent and gross abuse of discretion” is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that “has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention. State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985).” The Wallace Court continued, “In State v. Bender, 80 N.J. 84, 94 (1979), we elaborated on the patent and gross abuse of discretion standard: Ordinarily an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment…. In order for such an abuse of discretion to rise to the level of ‘patent and gross,’ it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.”

The Law Office of Jay Weinberg carefully prepares individuals who have a chance at being accepted into PTI for their interview process. It’s important to discuss what the State needs to see and not just send a client down to apply in a cavalier manner. We have also won, on appeal, rejection into the program, which requires significant legal work. A criminal record can result in substantial fines and jail time, loss of current and future employment opportunities, deportation, even for green card holders, and other liabilities. Entry into PTI is a win in a criminal case.

If you are facing criminal charges call The Law Office of Jay Weinberg to discuss your situation.

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New Jersey Supreme Court holds police entry into defendant’s home without search warrant was justified under the emergency-aid doctrine.

On July 20, 2015, in the case State v. Evan Reece, the New Jersey Supreme Court addressed a criminal law question, whether police officers’ warrantless entry into defendant’s home was justified under the emergency-aid doctrine. The police were notified that their dispatcher had a dropped 9-1-1 call from the home – a call to the emergency number was disconnected.

The Supreme Court cited Article I, Section 7 of the New Jersey Constitution, similar to the 4th Amendment of the United States Constitution, which assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause . . . .” Thus, as a general matter, “police officers must obtain a warrant from a neutral judicial officer before searching a person’s property.” State v. Deluca, 168 N.J. 626, 631 (2001).

The Supreme Court continued, “In recognition of our strong policy against warrantless searches and seizures, the burden falls upon the State to prove a warrantless search was justified by one of the ‘specifically established and well-delineated exceptions’ to the warrant requirement. Police officers are entitled to conduct a warrantless search when the search is supported by ‘a known exception to the warrant requirement.’ ” State v. Eckel, 185 N.J. 523, 539 (2006).”

The exception to the warrant requirement at issue in this case is the emergency aid doctrine, an exception “derived from the commonsense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury.”

The Supreme Court, citing their earlier on point decision in the case State v. Edmonds, applied a two-part test in determining whether the emergency-aid doctrine justifies a warrantless search:

1) the officer had an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury and

2) there was a reasonable nexus between the emergency and the area or places to be searched.

The Supreme Court explained the first prong asks “whether the officer was able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrants his entry into defendant’s home under the emergency aid doctrine.”

The presumption that an emergency exists when there is a dropped 9-1-1 call “may be dispelled by any number of simple explanations given by the homeowner to the responding officer.” For instance, a parent “may explain that her child, who appears at the door with her, impishly dialed the number”; or “a resident, who otherwise raises no suspicions, may state that he intended to call 4-1-1 but pushed the wrong digit.”

Courts applying this presumptive emergency “must weigh the competing values at stake, the privacy interests of the home versus the interest in acting promptly to render potentially life-saving assistance to a person who may be incapacitated.”

As usual in many areas of law, and certainly in 4th Amendment search and seizure law, facts matter. A call to 9-1-1, under New Jersey law, can result in a warrantless search of the residence the call is tracked to, if the facts show the Police Officer had a reasonable belief an emergent situation was taking place inside the home.

If you have any questions or concerns regarding criminal law, search and seizure law or other areas of law, please call Jay Weinberg at the Law Office of Jay Weinberg for a consultation.

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Don’t drink and drive.

This article published in AAA magazine discusses the National Transportation Safety Board’s call to reduce the legal blood alcohol concentration limit from .08 to .05 for all drivers.

It’s an issue of law, but the evidence also strongly suggests driving even at a .05 – .08 increases the chances of an accident.

http://www.evergreeneditions.com/…/2034…/262855/article.html

The Science Behind .05
Kevin Adams

Plenty of studies — at home and abroad — back up the NTSB’s call for a reduced BAC limit

Technically, impairment begins with the first drink. Legally, for drivers in the United States at least, it begins at a blood alcohol concentration of .08. Scientifically, however, its tragic effects seem to become truly magnified at a BAC of .05.

When the National Transportation Safety Board released a safety report called “Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving” in May 2013, it included a list of 19 recommendations that, if enacted, could make considerable progress toward the project’s ambitious goal.

One lightning-rod bullet point, however, received the most attention by far: the NTSB’s call to reduce the legal blood alcohol concentration limit from .08 to .05 for all drivers.

In a presentation to Public Affairs delegates at the 2014 AAA Annual Meeting, former NTSB member Mark Rosekind made clear that the .05 figure wasn’t “just pulled out of a hat” and that there was plenty of science behind it. More than 70 countries already have an .05 limit or lower, including most of Europe, South America and Australia.

“The U.S. is behind,” Rosekind said in a recent follow-up interview. “As bold as everybody likes to think this is, the reality is that 70 countries around the world have already gone to .05 or lower. While we pride ourselves in the United States on being on the cutting edge of transportation safety, we are woefully behind. “The rest of the world is there. We’re just catching up.”

Indeed, the science is consistently clear:

• A 2000 study showed that the risk of fatal crash involvement at BACs between .05 and .08 ranged from 3 to 17 times greater depending on the age of the driver and the type of fatal crash.

• Studies in 2002 and 2005 showed that at a BAC level of .05, drivers are 1.38 times more likely to be in a crash than sober drivers. At .08, the risk jumps to 2.69 times higher.

• Since .05 BAC limits were instituted in Australia, Japan and many European nations, studies have shown that fatal crashes have decreased and injuries have been reduced in those countries. Fatal crashes among males ages 18 to 49 in Europe have markedly decreased and overall fatal crashes in Australia were reduced up to 18 percent.

• A 2014 study showed that in two-vehicle accidents between drivers with BAC levels of .05 to .07 and drivers with BAC levels of .08, the drivers with the lower BAC levels were found solely at blame for the crash just as often as the .08 drivers.

The mere establishment of a .05 limit likely would discourage many drivers from drinking and driving at all. In the Canadian province of British Columbia, September 2010 laws enacted immediate vehicle impoundment, a 72-hour driver’s license suspension and heavy fines for BACs between .05 and .08, with more severe sanctions for multiple offenders and those with BACs of .08 or above.

The results? A September 2012 study showed that drivers with BACs over .08 decreased by 59 percent and drivers with levels from .05 to .08 decreased by 44 percent from 2010. Decreases in drinking and driving were universal across all age groups, sex and communities, and 92 percent of drivers were aware of the new sanctions. Overall, levels of drinking and driving were the lowest ever recorded in the province.

The effort to reduce the BAC threshold from .10 to .08 in the U.S. took two decades, so when it released its 2013 report, the NTSB realized it was just a starting point.

In the two years since, legislation to lower BAC limits has been introduced in five states – Kentucky, New York, South Carolina, Vermont, and Washington – and a hearing on the topic has been held in Utah. None of these initiatives achieved serious traction.

A number of organizations support the NTSB’s call for a lower limit, including the American Trucking Association, the American Society of Safety Engineers, the American Medical Association and the World Health Organization. AAA agrees that the science is clear on impairment below .08 BAC. And while AAA is not currently pushing for changes in state laws, the club has begun to educate its members and the public about the risks of driving while impaired at lower BAC levels — an integral first step to changing public opinion on this safety issue.

According to the AAA Foundation for Traffic Safety, 63 percent of motorists support lowering the limit for a driver’s blood alcohol concentration from 0.08 to 0.05 g/dL, compared to 36 percent who oppose such a measure.

“The biggest barrier is education,” Rosekind said. “Impairment starts with the first drink. People will say, ‘You mean I can’t have one drink?’ No, this is about saving lives, about saying this is what science shows, and here’s how you manage it.”

“It’s not about drinking,” he added. “It’s about separating the drinking from the driving.”

AAA South Jersey – AAA July Aug 2015 : The Science Behind .05

The Science Behind .05

evergreeneditions.com

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Police questioning people in parked cars – what are the relevant legal issues?

A common question is whether police can approach a car and detain the occupants for questioning. The question plays out in reality when police subsequently find contraband, such as marijuana, in a motor vehicle. Was the search legal and valid, or can the marijuana be suppressed as evidence obtained in violation of my clients rights?

Two principal legal issues in this scenario are (1) did the police interaction with defendant rise to the level of an investigative detention; and, (2) was there a reasonable and articulable suspicion to justify any such detention. In other words, did this stop rise beyond a field inquiry to an investigative detention. See the New Jersey Appellate Division decision State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002).

The important distinction in police conduct is that a constitutionally permissible field inquiry occurs when an officer questions a citizen in a conversational manner that is not harassing, overbearing, or accusatory in nature. State v. Nishina, 175 N.J. 502, 510 (2003). On the other hand, when the police encounter results in a restriction on the person’s freedom of movement, the encounter rises to an investigatory stop. State v. Elders, 192 N.J. 224, 245 (2007). These issues arise from the Fourth Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, which provide for “the right of the people to be secure in their persons…against unreasonable searches and seizures.”

An investigative stop, or detention, can occur even if the police interaction takes place when the citizen is already stationary, such as when a citizen is seated in a parked car. In considering the totality of circumstances involving police interactions with persons in parked cars, courts have specifically considered the manner in which the police approach a vehicle and the subsequent police conduct. See State v. Ellis, No. A-0235-14T2 (App. Div. April 9, 2015). The Ellis Court reviewed Professor LaFave’s summary on police contact with persons seated within a parked vehicle.

The mere approach and questioning of a person seated within parked vehicles does not necessarily constitute a seizure. However, the encounter becomes a seizure if the police action is of the type one would not expect in an encounter between two private citizens – boxing the car in, approaching it on all sides by many officers, or use of lights as a show of authority. That type of conduct may convert the event into a Fourth Amendment seizure. See Ellis; Wayne R. LaFave, Search and Seizure, 9.4(a) at 594-99 (5th ed. 2012).

I recently quoted a Police Officer in a case where he wrote in his Police Report “I then exited my vehicle to investigate.” He was on scene, undercover, in an investigatory detail. This was not a chance interaction resulting in a happenstance field inquiry. The Officer’s used their vehicle to block the individual’s car so that he could not move it at all, approached his car on both sides and beamed their flashlights into each of the rear view mirrors such that he was blinded and intimidated by their authoritative presence. In view of all the circumstances, a reasonable person would not feel free to leave – nor could they!

Questions that pre-suppose criminal conduct may also convert an otherwise benign field inquiry into an investigative stop, including the question “what are you doing here.” State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999).

Facts matter. Police are allowed to conduct field inquiries and inquire as to general matters. However, if they intend to restrict a person’s ability to move, there must be a warrant or some exception to the requirement that they obtain a warrant from a Judge. Those exceptions usually fit within the legal term probable cause – did the police have probable cause, a well grounded suspicion, to believe that a person has committed or is committing an offense? The concept of what qualifies as probable cause has been the subject of many court decisions. Essentially, there must be more than a mere suspicion, and the Courts look to the totality of the circumstances. If a mushroom cloud of sweet smelling herb emanates from your vehicle as you say, “What’s up Bro” to a Police Officer, my defense might be focused on minimizing your sentence!

If you have a legal question regarding your 4th Amendment rights, or any other legal concern, please call the Law Office of Jay Weinberg.

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