In State v. Harris decided by the Appellate Division on February 4, 2015, the Court mandated that the 180 day jail term cannot be served thru alternative noncustodial programs. Prosecutors are intrepreting this to mean no Pre-trial Intervention (PTI) as well. But remember you have a defense if your term of suspenion is over for the DWI and you are only administratively suspended or your license is merely not been restored. Call John Paragano to learn your rights under the law if you are faced with a fourth degree DWI charge.
For years it was well settled law that DWI constituted a motor vehicle offense and since the penalty of a maximum of six months in jail for third or more DWI offenses was Constitutional without a jury trial, no jury was permitted. However, the New Jersey Supreme Court has agreed to hear a case where a person charged with a forth offense DWI is demanding a jury. If the law changes, it will be a real game changer!
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.
Even with a major snow storm on the way, I appeared in Union County Superior Court earlier this week and got an indictment dismissed against a client who was facing a Third Degree charge of Possession with intent to Distribute and a Fourth Degree charge of Possession because of an illegal search. The client went from a possible 3-5 years in state prison to ZERO. All in a days work here at the Law Office of John Paragano.