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Use Your Right to Remain Silent

2012-01-21T09:01:00.000-08:00

The right to remain silent when being questioned by the police is well founded in both the Supreme Court and the New Jersey Courts. The reason for Miranda warnings advising of the right to remain silent is to insure individuals are aware of this right before questioning by police.
Individuals questioned in regard to crimes for which they are suspects, including serious traffic violations, throughout New Jersey should invoke their right to remain silent.

Unfortunately, even after being told they have the right to remain silent, many people answer questions asked by police officers because they believe they have to based upon the custodial situation. Another issue is that the invocation of the right is sometimes dishonored by police or prosecutors when an accused seeking to invoke the right to remain silent does not use the "right" words. There are no magic words required to invoke the right to remain silent but it must be clear that an accused it invoking the right to remain silent.

Recently, in State v. Dias-Bridges, A.3d, 2012 WL 87194, N.J., the accused requested that questioning cease until he spoke with his mother but also stated he would continue to answer questions after he spoke with his mother. He failed to state that he did not wish to answer further, that he would not say anything else or that he wished to speak to his attorney and then silent after any of the prior statements.

If you are being questioned in regard to a crime in which you are a suspect you should tell the officer(s) questioning you that you wish to speak to your attorney. You may provide the police with your name, or in the case of a motor vehicle offense, your driver's license, insurance and registration. Repeat that you wish to speak to your attorney to each and every officer who attempts to speak with you thereafter. Remember that anything you say can and will be used against you in a court of law. This means that what appears to be a friendly conversation with an officer offering you the chance to "help yourself" will later be used against you by the police and prosecution. Call your attorney at the first opportunity.

For more information on criminal charges in New Jersey visit HeatherDarlingLawyer.com.

NJ Still Waiting for Medical Marijuana

2012-01-09T04:13:00.000-08:00

New Jersey's medical marijuana program remains in its infancy state. Officials have taken major steps to get six treatment centers serving thousands of patients up and running but a major hurdle is coming from the refusal on the part of individual towns, through their zoning boards and councils, which continue to refuse to permit medical marijuana distribution facilities. Most recently, the township of Plumstead's council voted to exclude and distribution facility absent certainty that federal law would not be violated.

Although New Jersey has established a program for six approved growers little headway has been made since the law passed nearly two-years ago. For patients in need of medical marijuana this situation is largely frustrating, leading some to self-medicate in the interim. Unfortunately there are legal consequences to the decision to self-medicate in spite of the states obvious recognition of the need for medical marijuana.

Drug charges can vary in penalties, depending on the severity of the offense. Whether you are facing possession charges or are being investigated for distribution or trafficking, you need aggressive defense to protect your rights throughout the process. For more information on drug charges in NJ visit HeatherDarlingLawyer.com or call us at 973-584-6200 to obtain representation against NJ drug charges.

NJ DUI- Field Sobriety Tests

2012-01-08T03:17:00.001-08:00

Recently, in New Jersey, the Appellate Court upheld the decision in State v. Bernoketis whereby probable cause is not required in order to administer field sobriety tests. Reasonable, articulable suspicion, the same requirement for an investigatory stop of any individual, is all that is required in order for a police officer to administer field sobriety tests to an individual stopped for a routine traffic violation.

What this decision means to drivers is being pulled over for anything, even a seat belt violation, who appears to "seems to be" under the influence to the officer can be required to exit their vehicles and perform field sobriety tests. Reasonable, articulable suspicion is up to the discretion of the officer first, then the Judge if a DWI summons is issued following the field sobriety tests. Of course there will also be an Alcotest administered, barring refusal by the driver, which may be used by the prosecution or the defense depending on the result.

The consequences for a DWI in New Jersey are significant and a DWI defense should not be faced alone. It is your right to have counsel to represent you in a DWI.

For more information on NJ DUI law, or to obtain representation in a NJ DUI, please visit HeatherDarlingLawyer.com or contact us at 973-584-6200.

NJ Alcotest Trial

2011-10-27T11:10:00.000-07:00

A guilty verdict in a DUI can have serious consequences including loss of license, heavy fines and even incarceration.
If you have been charged with DUI in New Jersey, there are ways in which you can beat the charges. The Prosecutor MUST prove, by clear and convincing evidence, you were 1) operating a motor vehicle and 2) under the influence an intoxicant.
Provided it is possible, the accused is typically forced to submit to "field sobriety tests" by a trained officer. Of course, this is a subjective test and may be affected by many issues such as inner ear infections and other issues causing balance problems, disabilities or injuries causing balance or mobility problems, eye problems and other medical conditions or medicines.
In NJ you will also be asked to submit to an Alcotest (formerly Breathylizer) which determines the amount of alcohol in your blood by taking a breath sample. Although the officer administering the test will claim it is infallible, there are multiple parts to the machine which all must be working properly. A trained DUI attorney knows the parts of the machine subject to attack and how to go about proving they were not working properly at the time the Alcotest was administered to the accused. Additionally, there are certain conditions under which the test must be administered which a trained DUI lawyer is aware of and knows to look for. Finally, the officer administering the test must not only follow proper procedure but must be certified to perform the test as well.
We also have trained experts available to assist you in your case against a DUI matter. These experts were former Alcotest operators and trainers who trained the offices to use the alcotest machines. They know how to help us beat a DUI.
If you have been charged with DUI in Morris, Sussex, Bergen or Passaic County, New Jersey visit HeatherDarlingLawyer.com for more information or contact us directly at 973-584-6200 to get the help you need.
A DUI is a serious matter and should not be faced alone.
For more information about us or a DUI visit HeatherDarlingLawyer.com

Tracking you

2011-03-26T02:59:00.001-07:00

Although most of us are aware that our cell phones, GPS devices, laptops, netbooks and the like offer a glimpse into who and often where we are but just how much information is recorded about us. In addition to "cookies" being added to your devices to determine your demographic, spending habits, hobbies, interests and anything useful to advertisers your cell phone provider may be giving even more information. For those of you who cannot live without your Blackberry, iPhone or Droid be aware that every 7 seconds your cellular company sends a signal to determine where you will receive the best reception. The answer is recorded. In case you missed that, every 7 seconds your location is being recorded. This is in addition to the existing record of your texts, calls, internet usage and the like. Unless you plan to give up your phone there is nothing you can do to fight this as it is perfectly legal for your cellular provider to continue to strive to improve their service to you. Just remember that if you are accused of criminal activity these records are readily available now to prove your whereabouts and it is only a matter of time until they become common discovery in criminal proceedings.
For more infomation on criminal matters in New Jersey visit HeatherDarlingLawyer.com

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Warrantless Searches

2011-01-23T13:43:00.000-08:00

Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions.” State v. Pineiro, 181 N.J. 13, 19, 853 A.2d 887 (2004). Failure to obtain a warrant or meet the burden of proof of one of the exceptions to the requirement of a warrant is reason to bring a Motion to Suppress illegally seized evidence in order to obtain a not guilty result for a criminal defendant.
When no warrant is sought, the State has the burden of proving by a preponderance of the evidence that the warrantless search falls within one of the few well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973)
In many warrantless search and seizure matters "probable cause" is the stated reason for the failure to obtain a warrant. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), defined probable cause as existing "where ‘the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Of course this definition leaves much to the discretion of the officers and has served as both the reason for success and failure of multitudes of suppression motions.
In obtaining a warrant the police must set forth a sound basis for undertaking a search and seizure prior to said undertaking, without the benefit of any further knowledge or evidence obtained during the search itself. By undertaking a warrantless search and seizure the police are able to avoid some of the investigation otherwise required in building their case against the the accused by merely using the evidence obtained in the warrantless search to later obtain facts unknown at the time of the search which they may then be used to secure a conviction against a criminal defendant.
At all times an individual has a right to certain expectations of privacy in his or her belongings and person. What constitutes a violation of the Fourth Amendment rights of the person against unreasonable search and seizure is a regular and hotly contended matter within the Courts and anyone believing their Fourth Amendment rights to be free from unreasonable search and seizure should consult defense counsel to insure those rights are properly protected by suppression of any evidence seized in violation thereof.
For more information or representation in the event of a violation of Fourth Amendment rights visit HeatherDarlingLawyer.com.

Foreclosure frenzy

2010-10-22T05:01:00.001-07:00

Who is responsible for the foreclosures we are constantly reading about in the news these days? Lately the culprits are the "robo-signers", previously it was the Wall Street derivatives market's demand for new products and before the blame was carved into parts it was simply called predatory lending. Is it really the fault of lenders or should Courts and lawmakers also be looking at predatory borrowing? Of course there were self-proclaimed "investors" brainwashed by the likes of Robert Kiyosaki into believing they could become the next real estate moguls by levaraging their funds, or in many cases their homes, only to find that leverage is a 2 way street and if money, from rent or re-sale, is not coming in faster than it goes out levarage spells trouble. When the market bubble burst and people stopped buying real estate at ever inflating prices or could not pay rent then all the Kiyosaki taught "investors" were hard hit. We can call that the cost of doing business for them and they can decide whether to blame Kiyosaki, the banks or themselves.
For individuals there are different stories and reasons for crisis but in most cases it comes down to greed. Sure the banks allowed people to turn their homes into personal ATM machines by writing second and even third mortgages against personal residences of borrowers so they could leverage the ever increasing "value" in their homes. The banks did not actually force anyone to take those mortgages. The banks, whether they failed review all applications, failed to accurately appraise properties or whatever other manner in which they failed to "protect" the borrower from the borrowers own greed did not actually force the borrower to accept the funds but rather enabled the borrower to do as he or she wished. The second class of individual borrowers now suffering are those who purchased as much as a lender would possibly allow based on "house of cards" funding where if a wind blew the structured "deal" would fall apart.
The wind that blew turned out to be a tornado as the market bubble burst but this was as much the borrower's fault as the lender's. The practice of saving was forgotten and people were living for the next indulgence they could impress their friends with. Even immigrants coming to this country and taking jobs as laborers were buying the so called "McMansions" based on wages that could hardly pay for a reasonable home.
Of course there are the unfortunate individuals who practiced sound spending and saving but suffered tragic accidents or illnesses and sadly are now experiencing the same difficulty as the greedy.
Now what of the savers who practiced sound spending who are paying ever increasing taxes and whose children and grandchildren are faced with the largest deficit this country has ever known. Should it be their responsibilty to save the banks who are now forced by the Courts and government to accept responsibility for the greed of consumers and write down these loans at huge losses only to be later "rescued" by the government at the ultimate expense of the frugal who are now the only ones still paying their bills? Or should those who enjoyed the spoils of their greed be made to actually pay for it this time by remaining in their homes and paying modified amounts for longer terms without the benefit of handouts or rescues which are shortly therafter followed by the extension of new credit lines likely be utilized by these individuals who have been taught they can have all the luxuries in life for free?
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Suing the Bar that Served You

2010-08-04T14:57:00.000-07:00

Drunken drivers in NJ who were injured in automobile accidents while driving under the influence were long ago prohibited from suing the other driver for any injuries the drunk driver suffered in the crash but the Court is now about to decide whether they may sue the establishment that served them the alcohol. The Court has agreed to hear Voss v. Tranquilino to decide whether the legal provision indicating "a person convicted of, or pleading guilty to, DUI has no cause of action for his or her injuries" means no cause of action against the establishment who served them. The Court will hear arguments relating to the legislative intent of the statute which is presumably enacted to protect innocent parties from liability versus the legislative intent of the dram shop act which holds drinking establishments liable for serving visibly intoxicated individuals. The appellate Court decided that the law does allow suits by the injured drunken driver, as well as suits by victims of the drunken driver. The scope of liability of liquor establishments in NJ is in the balance in this decision.
For more information on NJ DUI or other NJ traffic matters visit HeatherDarlingLawyer.com.

DUI confusion

2010-07-29T07:08:00.000-07:00

New ruling in NJ benefits drivers who fluently speak another language. Drivers stopped for DUI in New Jersey have the right to refuse to give a breath sample. Although refusal comes with automatic penalties, the penalties may be less severe than the DUI charge depending upon the circumstances.
The police officer is required to provide notice of the consequences of breath-test (Alcotest) refusal. Recently, a refusal conviction against a motorist in NJ was reversed due to the fact that the officer did not give notice of consequensce in a language understood by the motorist.
The purpose of notice requirements in statutes and regulations is exactly that- notice to the individual. If the individual being provided notice does not understand the notice provided then the legislative intent is defeated.
Of course this brings about problems for the prosecution in proving DUI matters as, while the specific language spoken by the detainee is ascertained and translators are sought and summoned to the site where the alcotest, or even field sobriety tests which are certain to be the next cases litigated as to the language requirement, the blood alcohol content diminshes at a rapid rate.
The individual claiming not to understand English bears the burden of proof so merely claiming not to understand may result in further legal trouble if a trial occurs and police investigation reveals otherwise. However, in the event of a true failure to understand there is an opportunity for the motorist to prevail.
For more information on DUI or other motor vehicle matters in NJ visit HeatherDarlingLawyer.com.

Prosecutorial discretion

2010-07-25T17:45:00.000-07:00

In NJ criminal matters the prosecutor has discretion to proceed as the police have charged, downgrade the charges, or dismiss a matter completely. There are numerous reasons that each may occur but I shall only cover the most common here.
Most often, when a prosecutor moves ahead with the original charges and does not waiver as the matter moves toward trial it means the evidence against the accused is substantial and not easily refutable.
In the opposite situation, reasons a prosecutor may decide to dismiss a case are lack of amount or quality of evidence which offer no real link of the accused to the scene of the crime. There may be only one witness who is less than reputable. The attorney for the accused may succeed with a motion to suppress evidence or the prosecutor himself may find the police violated the accused's rights and obtained evidence illegally. There may be a determination that the interests of justice will not be served by prosecution as is often the case when the accused has an addiction and is instead directed to treatment. Finally, the accused may be standing trial in multiple jurisdictions for the same series of events and the prosecutor finds the overlap unnecessary.
In between the aforementioned situations is the situation where the prosecutor reduces the original charges. This may be based on lack of evidence, the fact that the matter was a first offense, contribution of a victim to the escalation of a situation or other fact specific reasons.
Clearly, the accused and his or her counsel may obtain indicia of the strength or weakness of the case against the accused from the prosecutor's treatment of the matter throughout the plea bargaining process.
For more information on criminal matters in NJ visit HeatherDarlingLawyer.com.
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Out of Bounds

2010-07-19T15:21:00.000-07:00

Although this Blog is typically dedicated to legal matters, an article recently caught my attention which may bear largely on the global economy and I could not pass up the opportunity to call attention to this experiment.
An experiment in humanity. Knights Apparel company now pays a wage to employees in its Dominican factory which permits them to improve their quality of life in reponse to cries for more humitarian conditions for factory workers in foreign nations. If wearers of the apparel are willing to pay the price it will succeed but at what price to the rest of the world? In the midst of economic crisis, a major oil spill with results yet untold and natural disasters unfolding daily it seems a wonder that something is afoot which has such great possibilities to improve the lives of impoverished workers. It is hard not to wonder why now when thinking of the timing of this experiment. When America has a new class of "poor", the previous "lower middle class" who have lost jobs and are losing homes at previously unseen rates it is difficult to imagine the sustainability of an experiment exporting more American dollars in exchange for labor at higher rates. This monumental experiment will certainly be a true test of the heart of mankind and the choice between self-preservation or the elevation of others to an economic status never before seen in such areas, and eventually perhaps more similar to his or her own.
Not only is it a test of where man's heart is but may be a leading indicator of a new global economic trend which is reaching beyond Japan, China, Mexico and other regular U.S. trading partners who have seen fit to close the gap between the standard of living in the U.S. and their own countries.

Alcotest Under Assault Once Again

2010-07-15T11:30:00.000-07:00

In NJ there is a new challenge to the Alcotest awaiting appeal. Evidence shows the Alcotest device, used to determine blood alcohol content for DUI suspects, routinely records breath samples of up to 25 seconds in length being provided yet most people are capable of providing only about a 6-8 second sample. This new information is being used to call into question the reliability of the purportedly self-calibrating machine. In the event the machine is in fact self-calibrating, this faulty sample time calls into question other indicia determined in State v. Chun to be scientifically reliable and therefore admissable as evidence of DUI.
Should the Alcotest be deemed unreliable the multitude of guilty pleas and verdicts for DUI based predominately on the Alcotest results are subject to review.
For more information on DUI or other NJ Municipal Court matters visit HeatherDarlingLawyer.com.

2010-07-12T11:15:00.000-07:00

Stop and Frisk. Residents in Brownsville, Brooklyn are routinely subject to a technique used by police known as "stop and frisk" which is permitted for the purpose of deterring crime when police have reason to believe the individuals being stopped and frisked are actively engaged in criminal activity at that moment. In Brownsville residents, who initially welcomed police presence because of a very high rate of serious crime in the area, are being stopped seemingly without reason. People cannot sit on their own front steps, ride bicycles, enter housing projects or other similar routine activities without being stopped, questioned, patted down and having their personal information recorded in a criminal database in spite of the fact that 99% of these people are found to possess no weapons or contraband. Now the very citizens who welcomed police fear them as nearly every resident in Brownsville has been subject to an average of at least 1 police stop per year for the past 4 years.
The question residents and authorities must consider is whether this level of police activity is justified and necessary for the protection of the citizens or whether use of stop and frisk measures has exceeded that required to protect the general public and become violative of the constitutional rights of freedom and privacy of those very citizens it was intended to protect.
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Foreclosure

2010-07-10T16:55:00.000-07:00

In the event of foreclosure bankruptcy is an option for a property owner but with the many programs now available rushing to file bankruptcy is not necessarily recommended. Federal legislation now mandates forestalling the foreclosure process in the event the homeowner requests an extension. In addition, banks are not equipped to be property owners or managers, especially of vacant properties which give rise to the likelihood of vandalism and deterioration. In the current market where so many properties, both occupied and unoccupied, remain on the market unsold even at drastically reduced prices lenders are very willing to revise loans so that borrowers, especially homeowners, can retain properties. Of course, there are considerations such as tax implications which may be triggered through processes such as short sales or debt forgiveness by lenders.
In the event of foreclosure there are many options and considerations making it advisable to retain counsel to assist in the resolution of any foreclosure.
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Corporate Principal Liability

2010-07-07T12:22:00.000-07:00

There is an incorrect assumption frequently made on the part of corporate principals- that because they are corporate officers acting on behalf of a business they are not subject to liability for the acts of the Corporation. Through the years case law has continued to address what is known as "piercing the corporate veil" in which the actions of the corporate officers and directors may be examined to determine whether they knew or should have known about harmful acts being undertaken by the Corporation. Individuals wishing to protect themselves and their assets from liability for injuries to person or property caused by their businesses are often led to believe that an entity such as a Corporation or Limited Liability Company will fully protect them. It is only later these individuals learn that they were not fully advised. In truth, the more removed the officers and directors of an entity are from the daily corporate operations the more likely it is they will be protected. In a closely held business, such as a single member LLC or family business it is more likely the officers will be imputed with knowledge in the event of a suit for damages against corporate acts.
In the recent New Jersey case of William Allen v. V&A Brothers Inc. a landscaper's work collapsed and the homeowners sought monetary damages, as well as treble damages under the home improvemet regulations. The homeowners were awarded damages against the businesses but the Judge dismissed the case as to the company owners. The homeowners were unable to recover damages from the company due to lack of funds and appealed the dismissal of damages against the company owners. On appeal it was decided that the Consumer Fraud Act did not require the normal piercing of the corporate veil but rather, through the use of the word "person" in N.J.S.A. 56:8 et. seq. the Act itself provided statutory authority to impose penalties directly against the principals of the company.
Corporate entities are under a duty to act fairly and reasonably in undertaking their operations and should they fail to do so the liability may reasonably be placed upon those at the helm of such entities.
For more information on Business Law visit HeatherDarlingLawyer.com or contact Heather J. Darling, Esq.

product liability

2010-07-03T05:56:00.000-07:00

Toyota is undergoing yet another recall. Although consumers have a right to safety there is also a need to understand basic automobile functions. When trucks roll over during high speed turns is the consumer under a duty to exercise basic caution and turn at a vehicle appropriate speed? Does basic driver education not teach that when a vehicle is accelerating uncontrolably merely shifting the vehicle to neutral and applying breaks or coasting to a stop will remedy the situation. By failing to exercise due care to protect themselves do consumers have the right to place full onus on the automaker? In todays economy is a company such as Toyota able to withstand recall after recall? It seems that if copanies are to address corporate bonuses then juries should be addressing "consumer bonuses" in the form of rewards for failure to exercise due care.

NJ alimony modification under economic strain

2010-03-03T07:24:00.000-08:00

Change of Circumstances on the part of the payor or payee is required for an unscheduled modification of alimony in matrimonial matters. In light of recent economic factors, many spouses find themseleves in a different position financially than they anticipated when negotiating property settlement agreements or when they presented testimony relating to their finances to a judge who established alimony. This has resulted in many payors seeking reduction of alimony to former spouses. This week, the New Jersey Appellate Court reaffirmed that any requests for reduction in alimony must be well supported and that a mere claim of reduced income without adequate factual basis or increased expenses without justification will not satisfy payor's burden of proving changed circumstances necessitating a reduction in alimony.

In Kisberg v. Kisberg, the parties negotiated their settlement and the payor should have been aware of his financial means and accounted for differences between existing conditions and potential changes. The downturn in the economy was not viewed by the court as an adequate explanation, without further proof, that the new circumstances could not have been contemplated at the time the agreement was entered into. A negotiated settlement, if reasonable and fair to both parties, is a wise option. When a party feels they are being economically pressured into arriving at a settlement agreement they are taking a calculated risk and balancing present financial strain against possible future finacial strain.

Whether it is the payor or payee who feels compelled to enter into a settlement agreement they are truly unhappy with, for economic or any other reason, they must bear in mind they will be required to give testimony on the record during the divorce proceeding. The testimony will include, at least, the following: they negotiated the agreement, were not coerced or under duress, reveiwed it, discussed it with their attorney, had adequate opportunity to think about it, had adequate opportunity to ask questions about it, were satisfied with the answers to any questions asked and only after all of those things did they sign it. After making such assertions on the record, it is very difficult to later show that there is an actual change in circumstances that could not be forseen at the time the agreement was entered into.

When entering into a negotiated settlement as to alimony it is always wise that a party either review it thoroughly with counsel and make sure that their attorney is aware of all circumstances, including long-term recurring illness of the payor or payee, work history of both parties, education, earning capacity of parties, and anything else which may come to bear upon the future income of either the payor or payee in the matter.

For more information on New Jersey matrimonial matters or to obtain counsel visit HeatherDarlingLawyer.com.

NJ Drug Court standards

2010-03-02T05:19:00.000-08:00

According the the NJ State Judiciary website, the mission of drug courts is "to stop the abuse of alcohol and other drugs and related criminal activity." Drug courts exist within the Criminal Division of the Superoir Courts of New Jersey and are designed to assist non-violent drug users with potential for rehabilitation. In drug court, the judge monitors a participant's recovery inside the courtroom weekly. In the interim the participant is supervised by probation officers, substance evaluators, and drug treatment specialists. Regular and consistent monitoring was selected to reduce the opportunity for relapse and enable swift intervention in the event of relapse.

A standardized assessment process is utilized to identify eligible offenders and an individual applying to the Court for drug court will most likely be admitted or denied based on the substance of this report although the attorney or other advocate for the individual may attend the team meeting and make arguements on behalf of an individual who would otherwise be denied. Clearly the arguments made must be based on sound reasoning indicating that the individual is in fact likely to respond well to treatment. The likelihood that the individual wishing to enter the program will respond well to treatment is the key element of drug court admissibility. Additionational important factors are prior failed attempts within the program, criminal history, and nature of offense committed.

In regard to the nature of the offense committed, it is required that the offense be non-violent in order to balance the interest in the individual in being rehabilitated is not overly burdensome on the community's right to be safe from harm. Recently, the issue of whether an individual involved in burglaries was a viable candidate in light of the non-violent offender provision of drug court.

In many cases, individuals with drug habits will burglarize homes in order to steal money or other items they may sell to support thier drug habits. The issue then comes down to whether this makes the offender violent. Although burglary does give rise to the potential for violence in the event the offender encounters anyone inside the structure, it is also very possible that a burglary will occur without any violent incident. The outcome of this case will clearly have substantial effect on the ability of potential participants to enter drug court in the future and the ability of the NJ Drug Courts to carry out their mission "to stop the abuse of alcohol and other drugs and related criminal activity."

For more information on the NJ Drug Court program visit www.judiciary.state.nj.us/criminal/crdrgct.htm.

For more information on matters relating to criminal law or for legal representation visit HeatherDarlingLawyer.com.

Stalkers Beware

2010-03-01T09:14:00.000-08:00

The New Jersey Supreme Court has held that stalking is stalking, and no showing that the Defendant intended to cause fear is required.

The stalking statutue, N.J.S.A. 2C:12-10, was enacted in New Jersey in response to "persistent, distressing or threatening behavior generally perceived as more serious than harassment, at least in its persostence, but not yet ripened into terroristic threats or assualt." Title 2C NJ Criminal Code Ann. (2007)

N.J.S.A. 2C:12-10(b) reads:
A person is guilty of stalking, a crime in the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of immediate family or death to himself or a member of his immediate family.

The statute includes a "course of conduct" meaning repeated incidents. Repeated is defined as two or more occasions.
Originally the statute included only visual or physical proximity but was later expanded to include "communication" in order to encompass the internet, and other electronic media and devices.
The statute includes not only the observation of the individual but also their "immediate family" which includes any person who regularly resides in their household.

Based upon the terms of the statute then, an example of a violation of N.J.S.A. 2C:12-10 would occur in the event that an individual used a social networking site, such as Facebook, to "observe", by way of information included on such site published or approved by the person being observed in the event that such observation may arouse fear in the individual observed.

The New Jersey Court in State v. Gandhi, held that the statute requires only a showing that the defendant acted in a way that would cause a reasonable person to fear harm or death, and no showing was is required that the defendant intended, or was aware of, the effect of that conduct on the individual observed.

The use of social networking sites greatly expands ones exposure to would be violators of this statute. In the event that an individual is informed by another to cease contact on a social networking site, deleted by another on such a site, twitter, or the like, the individual advised to cease the actions complained of should do som immediately in order to avoid exposure to N.J.S.A. 2C:12-10 and similar statutes.

For more information relating to matters of criminal law please visit HeatherDarlingLawyer.com

More on Miranda

2010-02-25T08:17:00.000-08:00

As a follow up to my prior post regarding Miranda warnings in criminal matters, I am including further information. It appears that the floodgates have opened on Miranda warnings and modifications of this long-standing ruling will continue. This week the U.S. Supreme Court ruled confessions should be admitted at trial in spite of custodial interrogations having been undertaken prior to the required notification of Miranda warnings. Bearing in mind I am not an expert in Florida law, I am aware that Florida's Miranda warning contains alternative wording that deviates from the established standards. In spite of the fact that Florida's alternative wording does not explicitly state that the suspect has a right to have counsel present during questioning, the Court, in Florida v. Powell, held that Florida's alternative wording of the Miranda warning is acceptable. In Maryland v. Shatzer, also heard this week, the Court ruled that police may initiate further interrogation of a suspect who has previously invoked their right to remain silent or have counsel present. The next Miranda case on the docket is Berghius v. Tompkins. Scheduled for argument March 1, 2010, Berghius v. Thompkins will address the issue of whether police can try to persuade a suspect, without coercion, to answer questions after the Miranda warning is given but before the suspect has invoked or waived the right.
For more information on criminal matters visit HeatherDarlingLawyer.com

Miranda Warnings

2010-02-23T12:19:00.000-08:00

Miranda v. Arizona, 384 US 436 (1966), was a landmark case argued before the United States Supreme Court February 28–March 1, 1966 and decided June 13, 1966. The Court held that statements made in response to interrogation of an accused in police custody will be admissible only if the prosecution can show that the defendant was informed of the right to consult with an attorney and advised of the right against self-incrimination before questioning by police began, and that the defendant not only understood these rights, but knowingly and voluntarily waived them.
Courts today are still deciding cases relating to the issue of Miranda warnings. In New Jersey this week the Court heard arguments relating to the legality and admissibility of pre-Miranda questioning. In the specific case argued, State v. Yohnnson, the issue was a confession made post-Miranda warnings but Miranda warnings were not issued before questioning began. The Court held that the totality of the circumstances must be viewed in determining whether the Defendant's rights were undermined. The Court ultimately held that the Defendant konwingly and voluntarily waived his rights before confessing, even though he was questioned for three hours before the warnings were given.
Finding oneself in a custodial situation under pressure to confess is designed to elicit the information sought, whether true or not. For more information on your rights or to obtain counsel to assist you if your rights have been violated visit HeatherDarlingLawyer.com.

Divorce and the present economy

2010-01-18T06:35:00.001-08:00

Due to the rapid flucutations in stock market and housing prices over the recent years, the valuation of property for the purposes of equitable distribution in matrimonial actions has become somewhat more difficult. The value used to be determined as of the date the complaint for divorce was filed. That does still hold true. However, the speed with which fluctuations in the markets have occurred make it likely that the value of real estate and securities will change substantially between the time the complaint is filed and the items are in fact sold. In light of this situtation, recently in Rendine v. Rendine, the New Jersey Appellate Division determined that the values used in negotiation of a property settlement agreement were to be upheld rather than the values existing at the time of sale, when a party waitied a substantial time to sell the marital residence and a significant decrease in value was the result. Once an agreement is reached between the parties which is the best possible resolution for each at the time, both parties should carry out the terms of that agreement quickly in order not to be damaged by market fluctuations.

For assistance with a Divorce or for further information on Divorce visit HeatherDarlingLawyer.com.

Final Restraining Orders ready for removal?

2010-01-07T09:54:00.001-08:00

As a follow-up to my post of Decebmer 28, 2009 regarding restraining orders, I am including this additional information. This past Wednesday, the New Jersey Supreme Court reviewed the case of Crespo v. Crespo in relation to violations of the 14th Amendment. As provided in my earlier post, often times an unrepresented Defendant unrepresented by counsel, and unaware of his rights or the burdens of the prosecution, will be found guilty of a violation of the Prevention of Domestic Violence Act under a mere preponderance of the evidence standard rather than the beyond a reasonable doubt standard required in situations bearing such lofty consequences. Crespo and future cases of a similar nature, which are most certain to follow, may be cause for revisiting existing restraining orders in order to have them removed for lack of adequate proofs in the initial proceeding which caused them to be set in place.

For more information on final restraining orders in New Jersey or to discuss having an existing restraining order removed visit www.HeatherDaringLawyer.com

Right to a Fair Trial

2009-12-31T09:10:00.000-08:00

In the recent New Jersey decision in State v. O'Brien, the Court held that the Defendant was not provided a fair trial as the judge indicated, in front of the jury, a disbelief of the Defendant and his expert witness and indicated his support of an adverse witness.

One of the rights to which a criminal defendant is guaranteed is that of a fair trial. This is one of the most basic tenets of our legal system and must not be abrogated under any circumstances. In spite of the foundataional importance of this right within our legal system, as evidenced by the facts of State v. O'Brien, it is sometimes overlooked.

The trial process is complex as it requires that evidence be set forth in a specific manner whereby each piece of evidence or bit of testimony establishes the foundation for the next. Objections must be made, if appropriate, relating to matters of evidence as well as the questioning of witnesses by attorneys. Entering into this process without full knowledge thereof is beyond difficult and is the very reason why one is entitled to counsel in any trail in which he or she may be substantially deprived of liberties. Anyone facing a matter in court should seek the assistance of counsel in order to ensure that their right to a fair trial, as well as other legal rights, are preserved.

If you have any questions regarding your rights or need legal representation visit HeatherDarlingLawyer.com.

Recent NJ Domestic Violence Cases Indicate Changing Tides

2009-12-28T06:50:00.000-08:00

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. was created in order to protect those placed in danger due to their domestic relationships. Because domestic violence was so widespread, and the consequences potentially serious if the offending party was not stopped, most allegations of domestic violence, no matter how minimal or tenuous, resulted in a restraining order against the alleged perpetrator. Although the statutes continue to serve their intended purpose for those actually needing help, over their years in existence, the statutes have also been abused as a weapon in order to gain advantage in legal matters including divorce, to tarnish reputations causing long-term legal implications and restrictions on liberties, or to remove a spouse or other resident from a home but continue their liability for expenses of said residence. Due to an ever increasing abuse of the domestic violence statutes for wrongful purposes, more recent decisions by the courts in New Jersey indicate a trend away from freely granting restraining orders without actual evidence that the behavior of the party against whom the restraining order is sought actually rises to the level required for protection under the domestic violence statutes.
The consequences of a finding of Domestic Violence against a party can be serious and permanent. Those accused of acts of domestic violence should seek counsel immediately in order to protect their rights and insure that a Final Restraining Order is not issued due to a lack of representation.
For more information or representation go to HeatherDarlingLawyer.com

Expediency

2009-12-15T09:53:00.000-08:00

One of your rights in the Court system is a speedy trial. An important reason to be sure one has the benefit of a speedy trial is the preservation of evidence. Whether someone parked in a no parking zone because a sign was missing and they were unaware of the restriction or something much more serious, such as a 911 tape during a home invasion, it is important to preserve any and all evidence which will benefit the accused (Exculpatory Evidence).

Exculpatory evidence comes in many forms including, but not limited to, witnesses, video surveillance tapes from a bank or store, EZ pass information, blood or urine, samples of substances claimed to be narcotics, 911 tapes, video of DUI stops and arrests, voice mail messages, text, e-mail and many other forms.

Exculpatory evidence must be provided by the prosecution to the defense but it is imperative that an accused inform his or her legal counsel of all exculpatory evidence they are aware of immediately. Not only is it important in creating a theory of the case upon which legal counsel will try to exonerate the accused but it is urgent that such evidence be preserved for use in negotiations or trial. The longer the time lapse between the event in question and the defense attorney learning of the exculpatory evidence, the more likely it becomes that the evidence will be lost or altered.

Upon notification of any possible action in the legal system, an appointment should be made with counsel and all possible exculpatory evidence should be disclosed to counsel immediately in order that the best possible outcome be obtained for the accused.

Benefits of Counsel

2009-11-05T07:48:00.000-08:00

Often times an individual will attend Court anticipating that the justince system will insure fairness on his or her behalf. To some degree this is a correct assumption however, people are also entitled to either have counsel of their own choosing, or in some cases, if they cannot afford same, they are entitled to have counsel appointed for them. Unless an individual is quite knowledgeable in the area of law involved in their matter, particularly their rights and privileges, these rights and privileges may be violated resulting in an unfair result. By way of example, although most judges in New Jersey make it a procedure to read a statement of rights to all parties in a courtroom prior to beginning any court proceedings, this is a very basic statement and will not afford an individual the knowledge required to avoid self-incrimination, disadvantageous guilty pleas, or other unfavorable results. It is always in the best interest of an individual who will appear in court to at least consult with counsel prior to such an appearance.

Criminal Appeals and Pleas

2009-11-04T06:54:00.000-08:00

When a defendant enters a conditional guilty plea to an offense yet reserves a right to appeal aspects of the matter it is important to consider the scope of issues which may be raised on appeal. For example, a conditional guilty plea to burglary based on a motor vehhicle stop resulting in the observance of a police officer of burglary tools or stolen items in plain view in which the defendant reserves only the right to appeal whether police had reasonable suspicion of a motor vehicle offense sufficient to justify a stop. This conditional plea would not allow for defendant to raise for the first time on appeal his argument that the burglary tools or stolen items should have been suppressed because the police lacked probably cause for the motor vehicle stop. When considering an appeal one must always consider that issues not raised below and preserved may not be raised on appeal.

For more information on criminal matters please visit www.HeatherDarlingLawyer.com

Property Settlement Agreements

2009-11-03T07:54:00.000-08:00

When preparing a Property Settlement Agreement parties to a divorce action must be sure to contemplate not only existing circumstances but also anticipated circumstances. In light of today's economic uncertainty it is common for Alimony, Child Support, and Custody and Visitation to be revisited as parties find themselves without jobs, accepting different jobs with hours that limit or expand the time they have to parent, or even moving to different parts of the country in order to obtain jobs. People who find themselves in any of these situations may find themselves looking to a Judge to determine whether they are entitled to modifications of alimony, child support, custody, parenting time, or other circumstances sucha s relocation with the children. The clearer the Property Settlement Agreement is on the matters in question, the more likely it is that the Judge hearing your matter will agree with the specified terms as a contemplated agreement between the parties. If the Property Settlement Agreement is silent on the matters in question then the Judge will have to look to statutes and case law to guide him or her in making a decision and that decision may not be what you would have bargained for.

Please visit www.HeatherDarlingLawyer.com for more information on the factors a Judge would use in making such decisions.

Facebook

2009-11-02T11:17:00.000-08:00

When posting to Facebook, whether it's a photograph or written statement, please be aware that this matter WILL be viewed by those wishing to view your page. If you are applying to a school or a job, seeking an elected or appointed position, those who are reviewing your credentials may see the information you have posted. Think about how a potential employer would feel toward hiring you if certain pictures of you were posted. In a criminal investigation, if all of your pictures are with the co-defendants in your case, it is likely to aid the prosecution in making their case before the jury. It is fun and easy to use Facebook and MySpace in order to communicate with family and friends but remember that they are not the only ones reading what you post.

Custody and the Best Interest Standard

2009-10-08T09:38:00.000-07:00

In matters of child custody, in New Jersey, all things being equal there is an initial presumption in favor of the mother. Although the courts favor equal parenting time, this is often impossible due to proximity of the parties' residences post-divorce, the ability of both parents to find housing suitable for themselves and the children post-divorce, work schedules, and other factors. The presumption in favor of the mother being the parent of primary residence can be overcome if the children in the event that it is in the best interest of the children for the father to be the parent of primary residence. A best interest evaluation may be undertaken including interviewing the parents and children, viewing the residences, and taking into account other factors such as the proximity of relatives who provide assistance in raising the children, ages of the children and attachment to the community, and other factors. If you are involved in a matter involving custody, always remember that the best interest of the children is what will ultimately be the basis of the Court's decision.

For more information on Child Custody in New Jersey visit www.HeatherDarlingLawyer.com

Contracts

2009-09-30T18:46:00.000-07:00

People often underestimate the importance of contracts. In any transaction there are at least two parties involved. Although they may use the same words to discuss a matter, such as "reasonable time", "standard quantity", "substantially similar", etc., each of these terms is ambiguous and the parties may attribute very different meanings to them. In other circumstances, the parties may deal with certain terms such as price, date, and quantity, but fail to deal with other matters such as place of delivery, delivery fees, duration of contractual obligation, etc. If something later goes wrong with the relationship and there is a dispute on any of these matters, the court will look to the Contract between the parties first for answers. If the answers cannot be found wihtin the "four corners" of the Contract then the Judge will seek outside evidence and testimony and the matter will become one of "he said, she said" which places both parties in the precarious position of suffering significant loss. When entering into a transaction for a lengthy duration, a significant quantity, or a substantial price always have an attorney prepare, or at least review, the Contract to insure that you are protected and, if not, you do not enter into a bad transaction.

Troubled Times for Alimony Payments

2009-09-22T10:25:00.000-07:00

In today's economy it is hard enough to keep a job and those big bonuses are a thing of the past for many. Unfortunately, when your income changes your bills often stay the same and it's hard to make ends meet. If you are responsible for paying alimony, it may be time to seek a modification of your alimony payment based upon a showing of changed circumstances. Often alimony is established with the assumption that earnings will continue to increase slightly over time, you will eventually feel the sting of that monthly payment a little less, and life will go on with some adjustments. In the current economy that is far from true for many. With President Obama saying that we will not see job growth catch up until at least the middle of next year, and CNN saying that it will be 6 years before we are back to the levels we were at before the massive economic downturn began in 2008 it is liklely that you will be awarded a downward modification if you can meet the required showings for the court. In New Jersey the main burden of proof is changed circumstances, and the court will also consider your former spouse's needs and ability to support themselves as well as your existing ability to pay. If you feel you qualify, and wish to avail yourself of the opportunity you should consult an attorney to file the necessary motion.

For more information on Alimony in New Jersey visit www.HeatherDarlingLawyer.com

DUI

2009-09-18T08:55:00.001-07:00

The State of New Jersey incorporated the Alcotest as a replacement of the Breathylizer. In the short time since the Alcotest was put into use, it has been the subject of several attacks. Recently it was determined that various occurences, such as burping or vomiting within a short timeframe prior to administration of the Alcotest, can dramatically alter the reading. For that reason, individuals under arrest for DUI must be observed by at least one officer at all times for a 20 minute period of time prior to the officer administering the Alcotest.

In the event the officer administering the Alcotest fails to undertake continuous observation, the results of the Alcotest may be excluded from evidence. Visual observance of the officer(s) and any witnesses of the Defendant's physical condition may still be used to prove guilt or innocence.

Guilty Pleas

2009-09-17T10:28:00.000-07:00

Many people make guilty pleas when offeres are presented by the prosecution for lesser sentences or probation. Often the allure of the plea offer makes the accused forget about the consequences of the guilty plea, specifically that they will now have a criminal record and that the plea will be admissable in any civil trial relating to the same matter. Although a criminal trial is something most wish to avoid, especially when the prosecutor is making statements indicating that a much harsher sentence will be imposed following a trial then the one offered in the plea agreement, if you have sufficient evidence that you are likely to be found not guilty, or perhaps guilty of only a lesser included offense, then a trial may save you from the burdens imposed upon you by a criminal record. When you are facing criminal charges, be sure to have competent counsel who can assess the facts of the case as presented by both sides and make a fair assessment of your options before accepting any plea offers.

September 11, 2009

2009-09-11T05:22:00.000-07:00

My practice is heavily based in litigation, especially the litigation of Criminal and Family Law matters. Today I would like to remind everyone to take a moment to reflect upon the heinous crime committed against the United States of America on September 11, 2001 and to remember the victims and their families and the plight of all Americans in this ever-changing world.

Child Support

2009-09-10T09:03:00.000-07:00

Child support is not optional and is not waivable by the parties. If you have a "deal" with your child's other parent that he or she will not seek child supoprt through the Court as long as you make payments to him or her and buy certain items for the child be careful! This is a better deal for the person receiving support than the one paying it. The Court continues to keep track of what is due. Eventually the other party will take may take you back to Court and say you were not making payments, leaving you to your proofs. Alternatively, if you are paying through probation, your balance continues to accrue, unless you and the other party agree and a Judge signs an Order indicating you are not liable to pay probation any longer.
If you wish to modify child support in New Jersey you may do so by appearing before the Family Court by way of formal Motion for Modification of Child Support. If you think you are entitled to a reduction or increase in child support payments seek an attorney who is familiar with such matters and can guide you through the calculations used and help you to get a fair result.

Restraining Order

2009-09-09T08:15:00.000-07:00

Restraining orders are serious matters. A temporary restraining order (TRO) may issue upon a complaint stating reasonable grounds and then a hearing will be scheduled before a Judge to determine whether a Final Restraining Order (FRO) will be issued. Anyone who finds themselves facing a FRO should seek the assistance of counsel immediately. There are several components which must be proven for someone to secure a FRO against someone else. An attorney who regularly handles FRO matters is aware of the various elements required to be met and, upon discussing the facts of the case with the client, is often able to show that the client did not in fact behave in a manner which should result in the imposition of an FRO.

An FRO is permanent in NJ unless it is removed by the Court who placed it. Although FROs are removable by the party seeking them, or by the individual subject to the FRO if certain criteria are met, they prevent those who have them from enjoying certain liberties as long as they are in place.

For more information on Restraining Orders visit www.HeatherDarlingLawyer.com

Attorney Conflict

2009-09-08T05:09:00.000-07:00

Often times the rights of an individual are inadvertently violated by thier own attorney. If your attorney has represented anyone involved in your trial before, including a witness to the case, there may be a negative impact on your trial proceedings as a result of that representation. Always insure that the attoreny you are working with checks for conflicts as soon as they are retained and then again as the names of witnesses and experts are disclosed to them. If your case is complete and you discover that your attorney had a conflicting interest in your case then you are entitled to appeal the judgment rendered in your matter.

Labor Day Weekend

2009-09-07T15:54:00.000-07:00

It is always nice to have a long weekend, unless you are incarcerated and awaiting a first appearance in Court. If you are incarcerated after business hours you have to wait until Monday to appear before a Judge and have your charges read in the form of a first appearance. In the case of this long weekend people awaiting a first appearance will not even have bail set until Tuesday. If you or someone you know is ever incarcerated over the weekend, get a head start on your case. The prosecutor will be at your first appearance. If you have already met with your attorney and provided your attorney with the facts of your case, your attorney may be able to resolve your matter with the prosecutor sooner. Also, if your attorney knows the facts of your case and has time to prepare, they will be better able to argue for a reduced bail at your first appearance. If you have to sit in jail over the weekend, use your time wisely and begin working with your attorney to get the best possible result at your first appearance.