1 WHY PLEADING GUILTY TO YOUR NEW JERSEY TRAFFIC TICKET IS NOT AN OPTION ANDRÉS Y. MEJER
2 LEGAL-EZ BOOK SERIES WHY PLEADING GUILTY TO YOUR NEW JERSEY TRAFFIC TICKET IS NOT AN OPTION BY Andres Y. Mejer, Esq.
3 Copyright by Andres Y. Mejer, Esq. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in the United States of America. Andres Mejer & Associates, LLC 9 Memorial Parkway, Suite B Long Branch, New Jersey
4 FOREWORD If you are reading this book, it is probably because you or a loved one has been charged with a New Jersey traffic violation. We at Andres Mejer & Associates, LLC understand that you likely have questions. We wrote this book in order to provide you with immediate information and answer your most pressing questions. Why Pleading Guilty to Your New Jersey Traffic Ticket is Not an Option, covers a wide range of topics. However, keep in mind that no book can cover every possible scenario that can arise in a case. Every situation is different, just as everyone s lives are different. Because of this, we highly recommend that anyone charged with New Jersey traffic violations meet with an attorney face-to-face. Just as you should have questions for us after reading this book, we will have questions for you. Only after answering our questions can we or any other an attorney give you real advice specific to your case. This book is intended to be a guide to what lies ahead. With this book, we wanted to offer something that other lawyers don t. Our purpose in writing this book is to educate you so that you can make informed decisions on how to best prepare for what lies ahead and provide you with the tools you need to find the right lawyer to handle your case. Take a look at some lawyer advertising. All the ads look the same: Our mission is to aggressively fight for the rights of our clients Courtroom experience and results that count Free initial consultation When you need the best legal defense We put aggressive and experienced legal representation on your side Slogans and catch phrases do not provide you with the information you need right now to make important decisions about your legal rights. This book should answer most of your questions, but there may still be and probably should be other questions. This is normal. That is where we at Andres Mejer & Associates, LLC come in. We educate you by providing information to help you make good, informed decisions about your case.
5 DISCLAIMER Please note that while our business is to represent persons charged with traffic violations in New Jersey, we neither encourage nor condone irresponsible driving. In fact, we hope that this book will serve to discourage people from such conduct after reading about how these violations are handled in New Jersey and the long term consequence that irresponsible driving can lead to. The New Jersey State Bar requires that we inform you that the information in this book is not legal advice. We are not your lawyers until you enter into a written agreement hiring us to represent you. We can offer suggestions, but please do not misinterpret anything in this book to be legal advice about your case. Each case is different and an attorney can only give you quality legal advice when they understand the specific facts pertaining to your individual case. We must also advise you that the case studies presented in this consumer guide have been modified from real cases in order to provide educational examples. We make no representations that your results will be the same. Each case must be analyzed on its own merits.
6 TABLE OF CONTENTS FOREWORD... 2 DISCLAIMER... 3 INTRODUCTION... 6 Chapter One: What are your Options after Getting a New Jersey Ticket? PLEAD GUILTY and accept the consequences Fight the ticket yourself Apply for the help of a Public Defender Hire an experienced traffic attorney to fight for you Chapter Two: WHY IS PAYING A TICKET USUALLY MY WORST OPTION? JAIL Loss of License How Points Affect You INSURANCE PREMIUMS MAY INCREASE COMMUNITY SERVICE Chapter Three: WHAT ARE THE FACTORS AFFECTING ANY FINES AND PENALTIES? The traffic violation Your Driving History The Prosecutor The police officer The Judge hearing your case Chapter Four: How do i fight my traffic ticket? NOT OrderING Discovery NOT PreparING for Trial Talking too Much What Can I Expect my Attorney to do for Me? Chapter Five: HOW do i HIRE my TRAFFIC ATTORNEY? Chapter Six: MOST COMMON TRAFFIC QUESTIONS WE GET ASKED Chapter Seven: What to do if i am Pulled Over? Do not panic Pull Over in a Safe Area on the Right-HAND Side of the Road Stay in the Car Keep Your Hands on the Wheel GATHER YOUR DOCUMENTATION only when asked... 40
7 6. Be Careful OF What You Say Take the ticket and be on your way CONCLUSION... 42
8 INTRODUCTION GOT A TRAFFIC TICKET AND DON T KNOW WHAT TO DO? Do not worry; we explain the entire process in this consumer guide: In Chapter One we review the four available options when you get a ticket: plead guilty, fight the ticket yourself, apply for a public defender, or hire an experienced traffic attorney to fight for you. In Chapter Two we explain that pleading guilty is usually your worst option because of the long term consequences. The fines will be detailed when you plead guilty; however, there are some consequences that you will not know until later, such as, Motor Vehicle Commission (MVC) issued points on your driving record, surcharges, increased insurance premiums, or MVC suspension of your driver s license. These and other consequences may not be apparent until an agency or insurance acts on your conviction to the charge. Similarly, in Chapter Three we explain the factors affecting your fines and penalties. In Chapter Four we give you some tools on how to fight the ticket yourself. We also explain the top three mistakes we see attorneys and unrepresented defendants make in traffic court (Municipal Court). In Chapter Five we provide you a guide to hiring your traffic attorney. Not all attorneys are alike. You need someone you can trust to guide you through this process. In Chapter Six we explain the most common questions we are asked by clients. This chapter is focused on clearing up common misconceptions. Lastly, in Chapter Seven we explain what to do should you be stopped by a police officer in the future. This consumer guide is our way of helping you make the best decision in your traffic case.
9 CHAPTER ONE: WHAT ARE YOUR OPTIONS AFTER GETTING A NEW JERSEY TICKET? You really have only four choices: 1. Plead guilty. 2. Fight the ticket on your own. 3. Apply for the aid of a Public Defender. 4. Hire an experienced traffic attorney to fight for you. 1. PLEAD GUILTY AND ACCEPT THE CONSEQUENCES This is typically the worst option. You are giving up and pleading guilty to the violation. Although most New Jersey traffic and driving charges are not "criminal" charges, they can still have serious consequences, including jail time, loss of license, hundreds or thousands of dollars in fines, community service, and surcharges. Serious traffic offenses can have far reaching effects, beyond the likely loss of your license and driving privileges. On December 28, 2011, the Administrative Office of the Courts promulgated a new directive requiring Municipal Court Judges to inform defendants of the immigration consequence of pleading guilty. Judges must now inform all defendants who are non-u.s. citizens that a guilty plea may negatively affect their immigration status, including possible deportation. Generally a two point violation has no impact on your immigration status and, without more, will have little impact on your driving record or insurance rates. However, here are three situations were a two point ticket can have long term consequences: If you were involved in a car accident, pleading guilty to careless driving (two points) can negatively impact your personal injury case because you are admitting you drove in a careless manner. If you were not injured, but someone else was, pleading guilty can negatively impact your future defense. If you already have 10 points on your driving record, your license will be suspended. If the two point violation totals six points on your driving record in the past three years, you will receive a surcharge from the MVC.
10 In all three situations your insurance carrier will likely increase your insurance premiums for reasons we will discuss in Chapter Two, Section Four. If you simply plead guilty and pay the ticket you will suffer any and all collateral consequences to the conviction. The opportunity to challenge and minimize those affects is before pleading guilty, not after. These situations must be addressed as quickly as possible. If handled correctly and promptly, there is an opportunity to get the charges dismissed or reduced. Some of the more serious traffic offenses we defend include: DWI/DUI/Drunk Driving Leaving the Scene of an Accident Driving without Insurance Driving without a License Driving on a Revoked or Suspended License Reckless Driving / Careless Driving We also handle lesser traffic charges, such as: Speeding Expired Registration/License Improper passing Failure to yield Failure to stop Tailgating Racing Failure to pass to right of vehicle proceeding in opposite direction Driving in an unsafe manner At Andres Mejer & Associates, we routinely appear in Monmouth, Ocean, and Middlesex Counties for all matter in Municipal court.
11 2. FIGHT THE TICKET YOURSELF This is a better option than the first, particularly if you are the type of person who will educate yourself on the charges you face and defenses you may raise. However, you must be prepared. That will include researching the violation and how the courts have previously interpreted the statutory provision. You should first call the court to plead not guilty. You will need to have your ticket number available. An interpreter will be available if you request one. It is the State s burden to prove beyond a reasonable doubt that your actions fall within the boundaries of each violation. You must review all the evidence the State has, evaluate any weak points, and file the appropriate motions in order to best position your defense. It can be done but it requires time and effort on your part. See Chapter Four for a discussion of how to properly prepare your case for trial. If you disagree with the judge's decision, you have the right to appeal the conviction, the sentence, or both. The appeal must be filed within 20 calendar days of your conviction. Contact the municipal court to obtain a copy of the appeal packet and information on the fees involved. 3. APPLY FOR THE HELP OF A PUBLIC DEFENDER A public defender is an attorney appointed by a municipality to represent qualifying defendants. The skill of public defenders varies from town to town. The appointment is more often due to political connections rather than skill; however, a public defender is generally a better alternative than representing yourself. You cannot choose a public defender; if you qualify, he or she will be assigned to you. The Court must first determine if you are charged with an offense that may result in a mandatory jail term or other consequence of magnitude. In determining whether the offense warrants a public defender the Judge will consider the following: Any sentence of imprisonment Any period of driver's license suspension Driver's license ineligibility If the aggregate of any type of court-imposed financial obligation sanctions of $750 or greater, including, fines, costs, restitution, penalties and/or assessments.
12 You must also complete a financial questionnaire regarding current employment, salary, income and assets. In considering your ability to pay, the court may also consider the willingness and ability of your immediate family, friends or employer to assist in meeting defense costs. The court will also charge a $200 administrative fee if the public defender is assigned to you. 4. HIRE AN EXPERIENCED TRAFFIC ATTORNEY TO FIGHT FOR YOU. Hiring an experienced traffic attorney is the best chance you have for getting the matter dismissed or entering into a favorable plea agreement and keeping your record clean. An experienced traffic attorney gives you options. At Andres Mejer & Associates, every piece of evidence will be scrutinized to determine if the State can prove your guilt beyond a reasonable doubt. Any weaknesses will be the subject of a motion. It is not about whether you, for example, left the scene of an accident, but whether the State can prove it beyond a reasonable doubt. The State must follow proper practice and procedure in collecting the evidence. Every City has a police force. Not all officers have the same level of training and experience. Police officers make mistakes. Those mistakes can make the difference between a dismissal and conviction, but only if you take the time and expense to hire experienced counsel and identify those mistakes. In summary, an experienced traffic attorney does two main things on your behalf: 1. He or she will review all of the evidence, your defenses, and ultimately get you the best result possible under the circumstances. 2. He or she will get you out of court faster. New Jersey Rules of Court require the Court to address attorney represented matters first. This is not due to favoritism, but necessity. There are over five hundred municipal courts in the State of New Jersey and many courts meet at the same time. So attorneys need to be able to attend other courts promptly.
13 Chapter Two: WHY IS PAYING A TICKET USUALLY MY WORST OPTION? If you plead guilty you will be subject to substantial fines and penalties, points on your driving record, insurance surcharges, suspension of driving privileges, community service, and jail. Most courts will give you an installment plan to pay fines, but they typically require some down payment after the sentencing. Conviction of any municipal court offense may also have a negative impact on your employment prospects and immigration status. It is the State s burden to prove every element of the charge beyond a reasonable doubt. The State may not be able to prove its case against you on every charge. By demonstrating the weaknesses in the State s case we may be able to enter into a plea agreement which may include acquittals, reduced charges, reduced points, and alternatives to jail. If you plead guilty you forgo that opportunity. The consequences of a guilty plea, as you will see below, can be severe. 1. JAIL The maximum jail term for a municipal court offense is six months. The sentence is served at the County Jail. Depending on the offense charged, we have successfully requested that the Judge allow defendants to serve their sentence on weekends through a SLAP program. SLAP is a community-based corrections program that provides a structured alternative to jail. Every county s program is slightly different, but the program allows you to pay your debt to society by performing moderate levels of manual labor on the weekends. This enables you to keep your job, provide for your family, and continue to be a productive member of society while serving your sentence. The SLAP program is available if you are convicted of nonviolent, minor offenses, and are found eligible for the program. You must follow all rules and regulations or face having the SLAP sentence revoked and serve the remainder of your sentence in a County Jail.
14 Any undocumented alien who spends even one day in jail may find him or herself in removal proceedings. Immigration Code Enforcement (ICE) has been placing immigration detainers on any undocumented alien who appears in jail. In other words, even if, for example, a spouse chooses not to press any charges on a domestic violence charge, ICE can still detain the defendant for a limited period until it decides to either release the defendant without bail, release him with bail, or detain the defendant during the pendency of his removal proceedings. In short, any jail time for an undocumented alien, and even for some Lawful Permanent Residents, can result in removal of the alien to his home country. CASE STUDY I Defendant was charged with DUI, possession of drug paraphernalia, and driving with a suspended license (third offense). Following the accident, the defendant was taken by ambulance to the hospital for treatment. The officers did not witness the defendant driving the car nor did they give her any of the standardized filed sobriety tests. After she was taken by ambulance and without either a search warrant or her consent, the officer took her purse from the car, opened it and found a wallet. Opening the wallet the officer found a plastic straw with cocaine residue. This was a violation of her constitutional rights. At the hospital, the officer failed to note the name of the nurse who supervised the urine analysis. The nurse failed to write the defendant s name on the urine container. Thus, the officer could not prove that the sample belonged to the defendant. We filed a motion to suppress the evidence and both the urine sample and the plastic straw were not admitted into evidence. Thus, the prosecutor had no evidence of intoxication and no evidence that she possessed drug paraphernalia. Both the DUI and the possession charge were dismissed. However, since it was the defendant s third offense for driving with a suspended license and she could not get her license restored she was sentenced to 10 days in jail. Upon our request, she was accepted into the SLAP program and served five weekends. Thus, she was able to keep her job and saved thousands of dollars by avoiding a DUI conviction and possession of drug paraphernalia charges.
15 2. LOSS OF LICENSE Many offenses require suspensions for minimum periods, including: If you receive 12 or more points on your current driver record Failure to appear in court or to pay fines Failure to pay surcharges Driving with a suspended license Failure to provide proof of insurance Physical or mental disqualification Drug or alcohol use while driving Reckless driving Vehicle abandonment on a public highway Fault in a fatal accident You cannot drive for any reason until the period of suspension ends; you have paid your restoration fee of $100.00, and have received written notification from the MVC that your driving privileges have been restored. If your license has been suspended for failure to appear, pay fines, or comply with a condition of you sentence, it generally will not be restored until your case is complete. If you continue to drive while your license is suspended, you face jail time. If you are driving on the suspended list, and there is an accident involving personal injury, you will serve a minimum of 45 days in jail. It does not matter who caused the accident. Conditional or special work licenses are not allowed in New Jersey. The only temporary license New Jersey issues is at the discretion of the Judge on the date of sentencing so that you can drive your car home, but only after you have turned in your license to the Court and only for a few hours.
16 CASE STUDY II Defendant was charged with driving on the revoked list. She had previously been diagnosed with epilepsy but was under treatment. When she changed doctors, her prior doctor had, unbeknownst to her, notified MVC that she was no longer qualified to drive. MVC suspended her license. With the assistance of her neurologist we successfully appealed her suspension and got her licensed restored. Her municipal court charges were amended from driving on the revoked list to failure to provide a valid document. She paid a nominal fine with no jail time or any collateral consequences. Upon sentencing and depending on the violation, we have successfully argued that the loss of license would cause an undue hardship to minimize the length of the suspension or prevent it all together. This can only be done where the statute grants the Judge discretion in your loss of license. For some violations, like a DUI, a Judge has no discretion and a conviction will result in a mandatory loss of license irrespective of the hardship it causes you. CASE STUDY III Defendant was found guilty of possession of marijuana in a vehicle, a conviction which can result in a two year loss of license. We argued that the loss of license would cause an undue hardship as he traveled an hour to and from work and there was no viable public transportation in that area. He was the sole supporter of his family and this was his first conviction for such an offense. The Court fined him a slightly higher fine but he kept his license.
17 3. HOW POINTS AFFECT YOU In New Jersey, driving is a privilege, not a right. If convicted of a motor vehicle violation, you can have your driving privileges suspended or revoked, face thousands of dollars in fines and surcharges, and jail time. MVC tracks the seriousness of your violation through a point system and will penalize you for most moving violations. A two point violation is the minimum for any moving violation; however, depending on your driving record even two points can potentially double your insurance premiums. If you get six or more points within three years on your current driving record, you will be assessed a $150 surcharge plus $25 for each additional point. A surcharge is a fine assessed by the MVC for drivers who have earned excessive points or committed a specific violation such as DUI. Surcharges are in addition to any court fines or penalties. The following is a list of additional surcharges that may apply: $100 for driving without a license $250 for driving with a suspended license $100 for failure to insure a moped $250 for operating an uninsured vehicle $1,000 for DUI, 3 years $1,000 for Refusal to take breathalyzer test, 3 years If you do not pay your surcharges, the MVC will suspend your driving privileges indefinitely and can take you to Court. For example, the MVC can secure a lien against your property or garnish your wages.
18 CASE STUDY IV Defendant was in his sixties and had a very poor driving record from thirty years prior. He had over thirty points on his driving record despite having no moving violation in over a decade. Defendant plead guilty to a speeding ticket and the MVC automatically suspended his license because he had over 10 points on his license. We filed a motion to reopen his speeding charge, thereby undoing he guilty plea, and we reduced his ticket to a no point violation. In a subsequent hearing before MVC we restored his license with a warning and suggested he take several courses to further reduce his point total. There are very few ways to reduce the number of points on your driving record. For every twelve months without a moving violation MVC will deduct three points form your driving record. You can also attend one of two driving programs to reduce your points. Please be advised that your insurance company might not consider any deductions when calculating your insurance rate. Deduction Points Restrictions One year with no violations or suspensions Defensive Driving Program -2 Driver Improvement Program -3 Probationary Driver Program -3-3 Year begins on date of violation or most recent restoration May be used to subtract points once every five years May be used to subtract points once every two years Only for new drivers who receive four or more points.
19 4. INSURANCE PREMIUMS MAY INCREASE New Jersey has two separate insurance markets the regular or voluntary market, and the residual or assigned risk market. As a driver you are eligible to purchase insurance in the voluntary market if you have fewer than seven insurance eligibility points accumulated during the preceding three years. These points are not the same as those on your driving record maintained by the MVC. Insurer carriers will assign you insurance eligibility points for motor vehicle violations, suspensions and at-fault accidents. They also assign every newly licensed driver, regardless of gender or age, three insurance eligibility points for being an inexperienced operator. These points are merely used as a guide to help the company determine whether you are eligible for auto insurance in the voluntary market. If you have accumulated seven or more insurance eligibility points for the three-year period immediately before applying for insurance or the three-year period ending 90 days prior to renewal of a policy, you will likely not be eligible to purchase coverage in the voluntary market. The result is you may be directed to purchase insurance through the New Jersey Personal Automobile Insurance Plan (PAIP). Not all insurers in the voluntary market will refuse to cover you at seven points. The amount varies by insurance company so you should shop around and compare rates. The PAIP is not an insurance company; instead it acts as an administrative clearinghouse and assigns each driver to a company for coverage. Therefore, this type of coverage is referred to as assigned risk. The state has standardized the rates for this type of coverage and they do not vary from company to company. The rates will be substantially higher than premiums in the voluntary market. To avoid paying much higher insurance premiums for the next three years, you must fight every ticket that can result in insurance eligibility points. 5. COMMUNITY SERVICE By law, the judge must order community service for certain traffic offenses. You would be required to work for a municipality or non-profit organization for a certain period of time, without compensation. The length of the service is usually discretionary. Failure to perform community service may result in your returning to court and facing jail time.
20 CHAPTER THREE: WHAT ARE THE FACTORS AFFECTING ANY FINES AND PENALTIES? Fines and penalties will represent some of the most frustrating issues for you to understand. If you are found guilty, the Court has some discretion in awarding your costs. There are basically five factors that determine the amount of your costs. 1. THE TRAFFIC VIOLATION The type of traffic ticket you receive significantly influences the way the prosecutor and the Judge view your matter. In New Jersey, driving is a privilege, not a right. If you break traffic laws, your driving privileges could be suspended or revoked, resulting in fines and imprisonment. The seriousness of your violations - and resulting penalties - is tracked by MVC using a point system. Most convictions for a moving violation (not parking ticket or minor violations) will result in MVC adding points to your driving record. A two point violation is the minimum for any moving violation; however, depending on your driving record even two points can potentially double your insurance rates. More than two points can trigger surcharges, and run the risk of your insurance company canceling your policy. Not all moving violations result in points on your driving record. For example, no points are assessed for driving with a suspended license or driving while under the influence of drugs or alcohol (DUI). However, in both cases you can be jailed, lose your license, face severe fines and surcharges, and increases in insurance premiums. Violations can also vary in severity depending on circumstances. For example, a speeding ticket in a school zone or construction zone can be twice as expensive as the norm, but the points assessed by MVC do not change. Similarly, if you are charged with DUI or possession of a controlled substance within a school zone you will face significantly enhanced penalties with no change in MVC point assessments.
21 The following is a list of some of the more severe point assessments MVC makes: NJSA Section Offense 39:4 52 Racing on highway 5 39:4 84 Failure to pass to right of vehicle proceeding in opposite direction 39:4 85 Improper passing on right or off roadway 4 39:4 86 Improper passing in no passing zone 4 39:4 89 Tailgating 5 39:4 96 Reckless driving 5 39:4 97 Careless driving 2 39: Driving in an unsafe manner (points only for third or subsequent offense within five years of most recent 4 39: conviction) 39:4 98 Exceeding maximum speed 1-14 mph over limit 2 39:4 129 Exceeding maximum speed mph over limit 4 Exceeding maximum speed 30 mph or more over limit Leaving the scene of an accident: No personal injury 2 Personal injury 8 39:5C 1 Racing on highway 5 39:5D 4 Moving violation committed out-of-state 2 Points 5 5
22 2. YOUR DRIVING HISTORY If you are convicted of a moving violation, your driving history is one of the biggest factors for determining your fines and penalties. Some motor vehicle penalties are incremental. For example, leaving the scene of an accident involving injury or death, the maximum penalties are the following: First Offense - up to 180 days in jail, loss of license for one year, fines up to $5, Second Offense - up to an additional 180 days in jail, permanent loss of your license, and fines up to $5, A more common example is driving with a suspended license. First Offense - fines of $ and loss of license up to six months. Second Offense - fines of $791.00, up to 15 days in jail (if there is an accident involving personal injury the sentence is 45 to 180 days in jail), six months loss of license, if the second offense occurs within five years of the prior offense then all vehicle registrations in your name will be suspended. In other words, if you have two or more cars registered under your name each registration will be suspended. Third Offense - fines of $1,041.00, minimum 10 days in jail but if the offense involved a motor vehicle violation then the minimum is 10 days longer than the prior sentence (if there is an accident involving personal injury the sentence is 45 to 180 days in jail), six months loss of license, if the third offense occurs within five years of the prior offense then all vehicle registrations in your name will be suspended. In other words, if you have two or more cars registered under your name each registration will be suspended. An experienced traffic attorney will review your driver s history abstract with you and confirm its accuracy. At Andres Mejer & Associates, we always get a certified copy of your driver s abstract unless you instruct us not to. Even if the sentence you face is not incremental, like a speeding ticket, the likelihood of a favorable plea agreement differs greatly if this is your first violation versus your thirtieth. Also Courts or the MVC make mistakes, particularly with all the recent budget cuts. Your driving record may incorrectly show a conviction. It happens. You do not want to learn on the date of your DUI sentencing that the Court is treating your conviction as third offense, requiring a mandatory 180 days in jail.