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Monmouth County Criminal Lawyers Blog

NJ Driving Under the Influence Defense: What to Do if You Are Pulled Over By the Police

Posted by David Schwartz on February 8, 2016  |   No Comments »

With an experienced NJ criminal defense lawyer, there are significant defenses to NJ driving under the influence cases. How you behave in the event that you are pulled over by a police officer can influence whether you are arrested and/or convicted.

Most importantly, do not drink or take drugs and drive. This is the best “defense” against a driving under the influence conviction.

Be aware that, if you are pulled over, the police officer will make a series of observations that will factor into his or her decision regarding whether there is probable cause to arrest you for driving under the influence. Much of what the officer observes will be included in his police report. There is also likely to be an audio and video recording of your interaction with the officer. There are certain steps you can take to de-escalate the encounter and increase your chances of success at trial. You may even avoid arrest entirely.

First, when the officer signals for you to pull over, do so as promptly and as safely as possible. If you swerve, drive erratically, pull over too quickly, or too slowly, or park in an unsafe location, this will be included in the officer’s report. If you drive well and pull over safely, this will likely be recorded on the officer’s on-board video, which will demonstrate important evidence of your sobriety.

Next, be cooperative and polite, and do not make any sudden movements. If the officer perceives you to be rude, he is more likely to arrest you or include negative information in his report. If he perceives you to be dangerous, the situation may escalate.

You should always have your driver’s license, insurance and registration cards handy, in order to avoid the fumbling for documents frequently noted on police reports.

You are under no obligation to answer when an officer asks you whether you have been drinking, and your failure to answer cannot be used against you in court. Politely advise the officer that you would prefer to consult an attorney. In one of our recent cases, our client advised the police officer that he “drank his face off.” This was not helpful, of course. You do, of course, have to provide the officer with your name, license, and registration.

Never try to talk a police officer out of arresting you. This always backfires, and often makes things worse, especially if you ramble or talk about all of the family and friends you have that are law enforcement officers.

While you are under no legal obligation to perform a field sobriety test, failure to do so will, in the view of most judges, provide evidence of guilt. Field sobriety tests are difficult for even sober individuals to “successfully complete,” and are, in fact, completely subjective. For example, how many older individuals have difficulty standing on one foot for 30 seconds while raising the other foot 6 inches off the ground and counting? Nervousness can also cause an individual to fail. If you have any reasons why you might have difficulty with the test, make sure that you explicitly advise the officer IN ADVANCE OF TRYING TO PERFORM THE TESTS. Reasons include back, leg, foot or knee injuries, or problems with balance. If you suffer from any of these conditions, inform the officer, and decline to take the tests. Be sure that you can back up our condition medically, however.

You should never refuse to take a chemical breath test at the police station, since refusal is, in and of itself, a separate offense that carries significant and similar penalties to driving under the influence. If you refuse to take the breath test, you will almost certainly be charged with both driving under the influence and refusal. Be aware that an experienced driving under the influence attorney will examine the breath test results. In many instances, there may be a defense to the procedures used in taking the test which will result in exclusion of test results at trial.

You are, again, under no obligation to answer any questions regarding alcohol or drug consumption when you are at the police station. You will be given your Miranda warnings (i.e., you have the right to remain silent, etc.), and you should decline to answer such questions. However, if you are ill and your condition might make you seem under the influence (diabetes is a typical example), you should advise the officer at that time. You should not discuss medications you have taken, however, because you can be convicted of driving under the influence of legally prescribed drugs, such as, for example, Xanax.

Once you are released, write down all that you recall about the incident, and contact an experienced NJ driving under the influence lawyer. You need and deserve an experienced defense attorney who will fight for your rights.

Our firm obtains excellent results for clients charged with NJ driving under the influence in the New Jersey Municipal Courts. We have represented individuals in Municipal Court traffic and disorderly persons offenses and municipal ordinance matters, juvenile court matters, and Superior Court indictable criminal cases, for over 30 years. We practice throughout the State of New Jersey, and have a proven track record of excellent results for our clients. Please contact us in any one of our convenient locations, including our Monmouth County office, located in Eatontown (at the Jersey Shore), our Essex County office, located in Livingston, our Union County office, located in Linden, or our Middlesex County office, located in East Brunswick, to discuss your case. You may call the experienced driving under the influence and criminal defense attorneys of Schwartz & Posnock at 732-544-1460 or email us at

Legal Marijuana in NJ? Until then, Hire an Experienced NJ Criminal Lawyer

Posted by David Schwartz on January 18, 2016  |   No Comments »

Will recreational marijuana use become legal in New Jersey? New Jersey lawmakers are exploring a push to legalize marijuana use and possession.

Recently, the New Jersey Senate Judiciary Committee took testimony from those supporting decriminalization or legalization. Some members of the NJ Legislature consider marijuana laws a failure, and believe that it is time to legalize, tax, and regulate marijuana. However, although legislation is proposed, no vote was taken.

Governor Chris Christie has made it clear that he will veto any law decriminalizing or legalizing use or possession of marijuana. As a result, any vote on the issue will likely occur after Christie’s term ends, since there do not appear to be sufficient votes in the Legislature to override his veto, although there appear to be enough votes to pass the legislation.

Each year in New Jersey, 24,000 people are arrested for marijuana possession. Further, although whites and blacks use marijuana at approximately the same rate, African Americans are arrested at three times the rate of whites.

The American Civil Liberties Union of New Jersey supports marijuana reform, as do various pro-marijuana groups. More surprisingly, Municipal Prosecutors in New Jersey also support a policy change, considering prosecution of simple possession cases to be a waste of government resources which have clogged the Municipal Courts.

While even opponents of the legislation concede that sometime, in the next several years, marijuana will be legalized for personal use in New Jersey, until then, it remains illegal. A conviction for marijuana possession can have a significant impact on someone’s job or school prospects, and can be very costly.

For individuals who are facing marijuana charges in the Municipal Courts, Juvenile Courts, or Superior Courts of New Jersey, or who are appealing their criminal matters before the Superior Court, the New Jersey Appellate Division, or the Supreme Court of New Jersey, it is critical to have an experienced state and municipal New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State, Municipal, and Juvenile criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at to schedule an appointment.

NJ Wrongful Convictions: DNA Testing to Be Expanded

Posted by David Schwartz on November 17, 2015  |   No Comments »

On November 9, 2015, New Jersey Gov. Chris Christie signed a bill that increases the availability of DNA testing to those claiming wrongful conviction who are on probation or parole, or whose sentences have concluded. The law, which overwhelmingly passed the New Jersey State Senate and Assembly in June 2015, will go into effect in March 2016.

The legislation ends the requirement that an individual be jailed in order to seek the benefit of DNA testing at the state’s expense.

Until this bill was signed, individuals on probation or parole had no access to testing that might clear their names. According to the legislation’s chief sponsor in the New Jersey State Assembly, Assemblyman Gordon Johnson, “This law opens access to DNA testing to these individuals so they can stop living under the shadow of guilt and finally be free.” The lead Senate sponsor, NJ State Sen. Loretta Weinberg, stated:: “Expanding access to DNA analysis to those who are no longer incarcerated will allow people who have served their time, but who are still living with the nightmare of a wrongful conviction, to prove their innocence,” adding, the law would “assist in identifying the true perpetrators of the crimes for which these individuals were charged.”

Under additional provisions of the law, Superior Court judges who order DNA testing at the request of an imprisoned defendant are authorized to order law enforcement officials to submit crime scene evidence to the federal DNA database to determine if the evidence matches another individual within the database.

To avoid lengthy delays due to a backlog at State Police testing labs, the legislation also permits testing by private DNA laboratories, although the defendant would be required to pay for it.

Finally, the law provides criminal defendants with access to DNA evidence taken from crime scenes and victims.

Of course, the best defense to a wrongful conviction is an experienced criminal defense lawyer. For individuals who are facing state criminal prosecution or sentencing in the criminal courts of New Jersey, or federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or who are appealing their criminal matters before the New Jersey Appellate Division, the Supreme Court of New Jersey, or the United States Court of Appeals for the Third Circuit, the experienced criminal defense lawyers of Schwartz & Posnock are here to help. We frequently appear in all State, Municipal, and juvenile criminal courts in New Jersey, as well as the Federal Courts of New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460, email us at, or visit our webpage at to schedule an appointment.

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