Saturday, March 29, 2014

What NOT To Do When Being Pulled Over for a DWI Motor Vehicle Stop in New Jersey

Every motor vehicle stop by a police officer involving a motorist is unique based on facts of the case.  This blog is not meant to give specific legal advice to any motorist being pulled over by a police officer in New Jersey while driving his or her motor vehicle.  However, these general guidelines and tips might be helpful in most cases.

First, when you see or hear a siren or overhead lights from a vehicle you must immediately safely pull-over to the first safe shoulder to the right if possible.  Remember, use your right turn blinkers and come to an immediate stop.  Pull over close to the curb in a safe manner and remain in your vehicle.

Second, until approached by the police officer it is best to keep your hands in plain view, and do not stumble around for your driving credentials until after the officer approaches and asks you to produce same.

Third, when the officer approaches and asks you for your driving credentials, it is permissible to ask why you are being pulled over.  A police officer must notify why he is doing so, however, if he refused to tell you, do not push the issue and just give him your driver’s license, registration, and insurance card.  Also, be polite, answering “yes sir”, or “no madam”.  Even if you suspect that you are being profiled do not say this, because it will only make the officer take the offensive and start escalating the situation which will not be in your favor.

Fourth, although not every police department has motor vehicle recording tapes, or police body microphones, treat each encounter with the officer as if they are wearing a microphone and recording and videoing their encounter with you.  All New Jersey State Police stops are audio and video recorded with the trooper wearing a body microphone.  In any event whether or not such devices are being used politeness goes a long way.  If the officer is extremely nasty and aggressive you can bet he does not have those devices on.

Fifth, if the officer asks you whether you have had any alcoholic drinks before driving, you have no obligation to answer such a question, since everyone has a fifth amendment right to remain silent and that right is not eviscerated when you drive an automobile.  Keep in mind also that if you admit to having anything to drink, even one beer you will be asked to submit to psycho-physical field sobriety tests.  Likewise, you are under no obligation to tell him where you are coming from, if he asks, which he will.  You are under no obligation to tell him were you are going.  These are private confidential matters, and nobody, nobody, has a right to evade your privacy.  Of course, if you want to answer that is your choice, but normally, depending on the situation, you might want to remain silent and politely say, “Sorry but my privacy is important to me.”

Sixth, it is important that when you retrieve your driving credentials that you do so quickly, easily, without fumbling or dropping items on the floor.  Such behavior on the part of the motorist will be recorded by the officer as a sign of intoxication.

Seventh, if you are asked to step outside the vehicle, do so without hesitation.  However, if you are asked to perform any psycho-physical field sobriety tests, you have to make the prudential judgment as to whether you will perform such tests.  You have no obligation to comply.  If you are ill, injured, upset, confused, tried, you can refuse to take any field tests.  Note, however, if you refuse, most likely you will be placed under arrest for DWI.  Keep in mind however, that if you are asked to perform any tests, most likely, the officer has already made up his or her mind that you are a DWI and regardless as to how you perform on the tests, you will be nevertheless arrested.  I may experience I have since defendant’s perform almost perfect field sobriety tests on video and still be arrested.  In any event, the decision is yours and not the officers as to whether you will perform the tests.  If you do not perform said tests, such refusal will “not be normally” used against you.  In any event, if the matter goes to trial, and the breath readings are thrown out, the prosecutor will have no evidence to convict you on observations.  Remember, in New Jersey you can be convicted on both observations alone, and breath tests results.  If the breath tests are thrown out, and there is no field sobriety tests, you have a much better chance of an acquittal.  In the final analysis you have everything to lose and nothing to gain, by submitting to field tests, but of course, you must make that decision, based on your own unique situation.  Lastly, remember also that it is easier to beat one case than two cases, why give yourself another case, which is refusal.

Eighth, always, always, submit to the breath test, by law you must submit, and a refusal will result in an automatic loss of license for 7-months.  It is easier to beat a DWI than a refusal case.  Keep you options and chances of an acquittal by doing the tests.

Ninth, at the station, if not already done so when the cuffs were place on you, you will be given your Miranda Rights.  It is important once those rights are given, that you shut-up, keep quit, and say absolutely nothing.  The only thing that you are required to say, is I will submit to the breath test.

Tenth, consult and consider retaining the legal services of Attorney, Vincent J. Sanzone, Jr., Esq., an experienced DWI/DUI attorney in New Jersey.

Law Office of Vincent J. Sanzone, Jr., Esq.
277 North Broad Street
P.O. Box 261
Elizabeth, N.J. 07207
(908) 354-7006

“Poems are made by fools like me, but only God can make a Tree.”  Joyce Kilmer

Recent Unpublished Opinion Reverses Sentencing Court’s Decision to Forfeit Public Office

Prepared as a Public Service to the People by the Law Office of Vincent J. Sanzone, Jr., Esq.

Pursuant to N.J.S.A. 2:51-2d any criminal conviction which touches his or her public employment will lead to permanent forfeiture of public office, position or employment.  This is a fact sensitive question and often the prosecutor will argue that the commission of the crime did involve the defendant’s employment, which is often not the case.

A recent case is State v. Ruffin (unpublished appellate division case), was a case in which I represented the defendant at trial.  The trial judge (James F. Mulvihill) ruled against the defendant  and held that Ms. Ruffin a DYFS worker, would have to forfeit her position with that agency, or any other future public employment based on that conviction. At the time of the offense Ms. Ruffin was not working and the alleged offense had nothing to do with her employment.  In spite of those facts, the court nevertheless agreed with the prosecutor's position.

In reversing this portion of the decision the appellate division after having the case remanded back from the Supreme Court cited, State v. Hupka, 203 N.J. 222 (2010), and the standards set forth in N.J.S.A. 2C:51-2d. 

A copy of this opinion is attached hereto:

STATE OF NEW JERSEY vs. TAMICA RUFFIN (Unpublished Appellate Division, February 14, 2014)

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-01-0033.
Defendant Tamica Ruffin appeals from that part of the August 25, 2009 judgment of conviction (JOC) that sentenced her to a permanent forfeiture of public office, position, or employment pursuant to N.J.S.A. 2C:51-2d. We reverse and remand for entry of an amended JOC removing this part of defendant's sentence.
While driving in Edison, defendant became involved in an incident with the driver of another vehicle. Defendant, who was employed by the New Jersey Division of Youth and Family Services (Division) at the time, displayed a knife during the incident and threatened the driver.

Following a jury trial, defendant was convicted of harassment, a disorderly persons offense, N.J.S.A. 2C:33-4; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The trial judge imposed a five-year probationary term, and a 364-day term of incarceration, which was suspended. The judge also imposed a permanent forfeiture of public office, position, or employment pursuant to N.J.S.A. 2:51-2d.

Defendant appealed her conviction and the forfeiture of public office part of her sentence. We affirmed and determined that because defendant committed the offenses while employed by the Division, the judge properly barred her from holding public office. State v. Ruffin, No. A-0672-09 (App. Div. Nov. 20, 2012) (slip op. at 9). Our Supreme Court granted defendant's petition for certification and remanded for reconsideration of defendant's permanent forfeiture of public office in light of State v. Hupka, 203 N.J. 222 (2010), and the standards set forth in N.J.S.A. 2C:51-2d. State v. Ruffin, 215 N.J. 482 (2013).

On remand, the State concedes that because defendant's offenses did not involve or touch her public office, position, or employment with the Division, a permanent forfeiture is improper. See Hupka, supra, 203 N.J. at 239; N.J.S.A. 2C:51-2d. The State requests that the JOC be amended to remove this part of defendant's sentence.

Defendant's sentence of a permanent forfeiture of public office, 
position, or employment is reversed, and this matter is remanded for entry of an amended JOC removing that part of the sentence.

Law Office of Vincent J. Sanzone, Jr., Esq.
Elizabeth, N.J. 
(908) 354-7006

"It is easy live but hard work to live right."  Vincent J. Sanzone, Jr.