Out of State DWI Convictions May Count Towards Priors

October 4, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

Out of State DWI Convictions May Count Towards Priors When Charged with Violating N.J.S.A.2C:10-26 (Fourth Degree Operating a Motor Vehicle During a DWI Suspension)

Just recently, in State v. Luzhak, the New Jersey Appellate Division construed N.J.S.A. 2C:40-26, fourth degree operating a motor vehicle during a license suspension stemming from DWI, to apply to DWI convictions from anywhere in the United States. In that case, the defendant, who had two prior DWI convictions, one from 2013 in Maryland and the other from 2010 in New Jersey, was issued a motor vehicle summons in Woodbridge for driving with a suspended license in violation of N.J.S.A. 39:3-40.

The defendant was subsequently indicated for fourth-degree operating a motor vehicle during a second license suspension stemming from a DWI, in violation of N.J.S.A. 2C:40-26(b). The defendant thereafter filed a motion to dismiss the indictment, arguing that the 2013 DWI conviction in Maryland did not qualify as a predicate DWI conviction pursuant to N.J.S.A. 2C:40-26(b). The defendant’s argument was essentially that, since N.J.S.A. 2C:40-26(b) did not specifically reference license suspensions due to out-of-state DWI convictions, the statute should be interpreted to specifically require previous license suspensions pursuant to N.J.S.A. 39:4-50, New Jersey’s DWI statute.

The Appellate Division first reviewed the legislative history regarding N.J.S.A. 2C:40-26 and noted that the Senate intended to impose

“criminal penalties for persons whose [drivers’] licenses are suspended for certain drunk driving offenses and who, while under suspension for those offenses, unlawfully operate a motor vehicle.”

The court also noted that the law was prompted by reports of fatal or serious accidents caused by those with multiple DWI convictions, who continued to drive with suspended licenses. In addition, the court further noted that prior decisions have held that out-of-state convictions for an offense equivalent to a DWI were to be considered as a prior offense for enhanced sentencing purposes on a subsequent DWI conviction.

Using this analysis, in addition to New Jersey’s strong public policy against drunk driving, the court held that N.J.S.A.2C:40-26(b) contemplated convictions for DWI or its equivalent in foreign jurisdictions — even those jurisdictions which are not a party state in the Interstate Driver License Compact. In short, what this means is that DWI convictions from anywhere in the United States can expose you to the criminal penalties as set forth in N.J.S.A.2C:40-26, a fourth-degree crime. Those penalties include a mandatory 180 day county jail sentence in addition to up to two years of license suspension on top of the already existing suspension.

Despite the Appellate Division’s decision, other defenses may remain. For example, if we are able to establish that your out-of-state DWI conviction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%, then that conviction may not count against you as a prior DWI conviction. If you have been charged with violating N.J.S.A. 2C:40-26, contact the DWI attorneys at the Law Office of Randolph H. Wolf today. We will review your case for possible defenses to this charge. Call us today at (732) 741-4448 for a free consultation.

NJ Police Sgt. Suspended – 20,000 DWI’s May be Eligible to be Re-Opened

September 20, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

On September 19, 2016, it was released that State Police Sgt. Marc Dennis, a former coordinator in the State Police’s Alcohol Drug Testing Unit (“ADTU”), has been suspended pending an investigation into his calibration of Alcotest instruments. Sgt. Dennis was responsible for the calibration of Alcotest 7110 MKIII-C units in Middlesex, Monmouth, Ocean, Somerset, and Union Counties.

Specifically, the State is alleging that Sgt. Dennis failed to use the proper thermometer to test the simulator solutions prior to starting the calibration of the Alcotest 7110 MKIII-C units. This step is necessary under the Supreme Court’s decision in which set forth the necessary steps the State Police must undertake to properly calibrate the Alcotest instrument. Read more

Early Expungement of Disorderly Persons Theft Conviction Granted

July 19, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

In April of 2016, the expungement statute was broadened to provide for the “early pathway” expungement of disorderly persons (or misdemeanor) convictions in New Jersey.  While an early pathway expungement had previously been available for felony convictions prior to April of 2016 (making applicants eligible for expungement of their felony convictions five years after completion of their sentence, as opposed to the standard ten year waiting period), a similar provision was not available with respect to the early expungement of disorderly persons convictions.
Under the new expungement law, however, pursuant to N.J.S.A. 2C:52-3(b)(2), an early pathway expungement for disorderly persons convictions is now available.  Although the standard waiting period to expunge a disorderly persons conviction remains five years, you can now apply under the new law for expungement of a disorderly persons or petty disorderly persons offense after only three years –  so long as certain conditions are met.

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Successful Outcome for Client Charged with Fourth Cell Phone Ticket in New Jersey

June 8, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

Just recently, the Law Office of Randolph H. Wolf represented a client that was being charged with their fourth cell phone violation in New Jersey. As a fourth offense, pursuant to New Jersey’s hands free driving law, N.J.S.A. 39:4-97.3, the client faced a fine of between $600.00 and $800.00 dollars, the assessment of 3 motor vehicle points, and up to 90 days of driver’s license suspension. Read more

How to Respond to a Notice of Proposed Suspension from the MVC

May 27, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

If you have received a Notice of Proposed Suspension from the New Jersey Motor Vehicle Commission (“MVC”) it is imperative that you act immediately in order to prevent your driver’s license from being suspended.  All Notices of Proposed Suspension will contain the following information: (1) a notice that the MVC intend to suspend you driving privileges; (2) the reason for the proposed suspension; and (3) the effective date of the proposed suspension.

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Expungement of Conviction for Third-Degree Possession of C.D.S. with Intent to Distribute Granted in Mercer County

May 1, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

The New Jersey expungement lawyers at the Law Office of Randolph H. Wolf just recently represented another client in Mercer County on another successful “public interest” expungement of his conviction for third degree possession of CDS with intent to distribute.  In the past, convictions for possession of CDS with intent to distribute were ineligible for expungement.  In 2010, however, the law changed.   If the conviction was of the third or fourth degree, the record eligible for expungement so long as you prove that expungement is consistent with the “public interest.”

The client we recently represented was arrested in 1989 and charged with possession of CDS (heroin) in violation of N.J.S.A. 2C:35-10(a)(1), possession of C.D.S. (heroin) with intent to distribute in violation of N.J.S.A. 2C:35-5A(1), and distribution of C.D.S. (heroin) in violation of N.J.S.A. 2C:5b(3).  The client subsequently appeared in the Mercer County Superior Court, where he was found guilty of third-degree possession of CDS in violation of N.J.S.A. 2C:35-10(a)(1), third-degree possession of C.D.S. with intent to distribute in violation of N.J.S.A. 2C:35-5A(1), and third-degree distribution of C.D.S. in violation of N.J.S.A. 2C:5b(3).

Pursuant to the 2010 amendments to the expungement statute, N.J.S.A. 2C:52-2(c)(3);

c.In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with the intent to sell, expungement shall be denied except where the crimes relate to involve:…

(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.

Thus, pursuant to this statute, the New Jersey expungement attorneys at the Law Office of Randolph H. Wolf argued that the client’s expungement was in the “public interest.”  In doing so, we first pointed out that it had been 21 years since the client had completed his sentence.  Courts may  take into account the number of offense-free years since conviction because;

“As the number of offense-free years after conviction increase, the risk of re-offending drops.”  Ibid. (citing to Megan C. Kurlycheck, et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending? 5 Criminology & Public Policy 3, 489 (2006).

Thus, “this fact would generally tend to support petitions made closer to the ten-year mark than the five-year mark.”  Ibid.

We next pointed out that the nature of the offense also weighed in favor of expungement.   With respect to this factor, we noted that there was no indication that weapons or violence was involved in the commission of the offense.  Nor was there any evidence that the client had distributed drugs to children or in the past.

We further pointed out that, since the client’s arrest, he has changed immensely. Since his conviction he has lead an exemplary life and has had no other arrests.  He subsequently enrolled in college, where he received two Associates degrees.  He also completed a job training program, where he received his Licensed Practical Nurse Certificate.

We also pointed out that the client continues to maintain family and community ties that promote law-abiding behavior.  We highlighted the volunteer work that the client had performed when he collected donations and food to feed the less fortunate.  He also volunteered to collect money for Christmas gifts for children.

Early Pathway Expungement Granted in Bergen County

April 25, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

The Law Office of Randolph H. Wolf successfully represented a client in obtaining an early pathway expungement in Bergen County, New Jersey.  The client was convicted of third degree possession of CDS with intent to distribute in the Bergen County Superior Court in 2006.  At the time of the offense, the client was only 20 years of age.  Since then, the client had married, had two children, and had been working as a pool technician.  He explained, however, that his felony conviction was holding him back as he would like to advance in his career in order to better provide for his family.
In order to be eligible for expungement, however, the client had to overcome two obstacles.  The first was that he was seeking to expunge his felony conviction early as only 7 years had passed since he finished his sentence for the felony conviction (the normal waiting period to expunge a felony conviction is 10 years).  The second issue was the fact that he was convicted of possession of a controlled dangerous substance (CDS) with intent  to distribute.  Prior to 2010, anyone convicted of possession of CDS with intent to distribute in New Jersey was forever barred being able to expunge such a conviction from their record.  In 2010, however, the law changed.  So long as the conviction is in either the third or fourth degree (first and second degree convictions are still ineligible for expungement) and the petitioner satisfies the “public interest” determination, a court may, in its discretion, grant the expungement.
In arguing that the court should grant the client’s expungement, the expungement attorneys at the Law Office of Randolph H. Wolf first focused on the nature of the offense.  We highlighted that the client was only 20 years old at the time of the arrest.  At the time of the offense, the client was driving the co-defendant, who had drugs in his backpack.  We pointed out, however, that the drug were not our client’s – a determination that was supported by the evidence in the underlying criminal case s the co-defendant’s personal belongings were found in the backpack along with the drugs.   Moreover, we noted that the client was cooperative throughout the court proceedings in the underlying criminal case.
We next went on to highlight the client’s accomplishments, among other things.  We explained that, after the conviction, the client moved out of New Jersey to “start over” in Florida, where he went to school, worked, and started a family.  The client had no other additional arrests after the felony conviction.  Most importantly, we explained to the court the effect that the criminal conviction has had on the client’s life.  Although he was able to support himself as a pool technician, the client wished to be able to better provide for his family and wanted to become a physical therapy assistant.  He feared, however, that despite his education and training, he would not be able to do so because of the felony conviction.  After submitting various documentation, including a brief, character reference letters, and plea and sentencing transcripts, among other things, and making oral argument to the court, the judge agreed that the client had demonstrated that he deserved the expungement and granted it.
The expungement lawyers at the Law Office of Randolph H. Wolf have successfully represented many clients in obtaining an “early pathway” or “public interest” expungement of their felony records.  If you are interested in applying for an expungement of a drug charge or an “early pathway” expungement, contact us at (732) 741-4448 for a free consultation.

Can a New Jersey Employer Lawfully Ask About Your Criminal Record?

April 22, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

Individuals looking for employment in New Jersey are often concerned about whether and when potential employers can use inquire into their criminal record during the application process. While New Jersey’s Opportunity to Compete (or “Ban the Box”) law prohibits employers from inquiring into an applicant’s background during the initial stages of the application process, nothing – besides an expungement – will prevent an employer from inquiring into your criminal background after an initial interview.

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Early Termination of Probation in New Jersey

April 8, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

Clients often ask whether it is possible to be released early from probation. New Jersey law does give judges the authority to release defendants from probation early. Pursuant to N.J.S.A. 2C:45-2, the court, on application of a probation officer or of the defendant, or on its own motion may discharge a defendant from probation at any time.
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Early Expungement Granted for Client Convicted of Unlawful Possession of a Weapon in New Jersey

April 5, 2016 · Posted in Blog · Comment 

Written by: Randolph Wolf

Just recently, the expungement attorneys at the Law Office of Randolph H. Wolf represented a client in successfully obtaining an “early pathway” conviction of her felony conviction for unlawful possession of a weapon in Ocean County, New Jersey. The client was arrested in 2006 at the age of 20 and charged with being in violation of N.J.S.A. 2C:12-3B, terroristic threats; N.J.S.A. 2C:39-5D, unlawful possession of weapon; and N.J.S.A. 2C:39-4D, weapon possession unlawful purpose. She appeared in the Ocean County Superior Court in 2007, where she plead guilty to N.J.S.A. 2C:39-5D (weapon possession unlawful purpose) and was sentenced to a one-year term of probation, which the client completed in November of 2008.
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