March 7

Lawyer owes duty to client, not the court, in not disclosing client’s indictable offense.

In State v. Kane the Appellate Division held that a lawyer whose client pled guilty to driving on the revoked or suspended list was not obligated to inform the municipal judge or prosecutor that the client was subject to indictment and harsher penalities becuase her license had been suspended for DWI. Once a plea is entered at the municipal level, the State cannot indict the defendant because of double jeapordy protection. Lawyers can now breath easy that ethics charges cannot be brought for lack of candor to a tribunal.

March 7

The Legality of Filming Police Officers

Recently, people have been asking me if it’s legal to film a police officer conducting an arrest. Filming in a public place is analyzed under the Right to Privacy doctrine contained in the United States Constitution. People have a right to privacy in certain places like their bedroom or a bathroom. That’s why it is illegal to film someone even in a public bathroom. But outdoors in public no one has a right to privacy. In this sense, police officers are no different than anyone else. They can be filmed in public just as you can if stopped by a police officer with a body cam or motor vehicle recorder. The police may try and intimidate you into shutting your camera off, but you have the legal right to keep filming police officers as long as you are not interfering with their investigation.

March 7

Driving while suspended, a DWI means a mandatory six months jail time

New Jersey statute 2C:40-26 makes driving whie suspended a fourth degree crime with a maximun sentence of 18 months in prison. It also mandates that at least six months be served in jail. On March 3, 2015 the Appellate division rendered a decison in State v. Perry which holds that, for the mandatory six months to apply, a person must actually serving the suspension for the DWI. In other words, if you finished the suspension period for the DWI and you are still suspended for administrative reasons or motor vehicle points, etc, the mandatory six months in jail does not apply. The decision makes sense and allows defense attorneys to argue for no jail time in those cases.

March 5

Miranda Rights, what does it mean?

Anyone who watches TV knows what your Miranda rights are…”You have the right to remain silent, anything you say can be used against you, you have the right to an attorney, if you can’t affored one, one will be appointed for you”. As a criminal defense attorney, I hear it all the time “my Miranda rights were not read to me”. But Miranda only applies if you are subject to a “custodial interrogation” but what does that mean?

A custodial interrogations requires that you are in “custody” which is defined as you are not free to leave. If a police officer comes up to you and asks you a question, you are free to turn around and walk away. If you are not free to leave, meaning that your freedom is restricted in some way, guns drawn or police car blocking your exit if you are in a vehicle, you are in custody.

The second prong is you must be subject to “interrogation” which means you are asked questions designed to elicit an incriminating response, like “do you have any drugs on you”. The response need not be verbal. The production of drugs in response to that question by reaching into your pocket and pulling out a bag of marijuana is covered by Miranda.

In the course of my practice, I find attorneys don’t pay enough attention to Miranda. It is a great suppression issue and I successfully use it all the time when it applies.

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