5 Legal Tips This Memorial Day Weekend | Gambone Law Offices
The Memorial holiday weekend is here and many of our friends, family, and clients will be on the road this weekend to the shore or out to barbeques. While this is a time to spend with our friends and family, there is always an increased police presence on the state and local highways in Pennsylvania and New Jersey. As you travel this weekend, please keep in mind 5 important legal tips, which can be a huge benefit if you find yourself charged with a crime involving illegal drugs, guns, or drunk driving (DUI/DWI). For more great info, check out our free download section.
1. Never give police consent to search your house or car
All searches done in Pennsylvania and New Jersey without a warrant are presumed to be unconstitutional. While there are exceptions to the warrant requirement, giving consent eliminates your constitutional right and then your attorney can’t challenge the constitutionality of the search if you consent to it. While you should never give consent, this doesn’t give you the right to be rude to the officer or in any way argumentative. Simply tell the officer that he is not allowed to search you or your property, if he tries to do it anyway never stop him or her.
2. If you’re stopped for DUI/DWI, DO NOT refuse a chemical test (breathalyzer or blood draw)
While the Supreme Court case of Birchfield v. North Dakota has placed a search warrant requirement on a blood draw, Pennsylvania courts have ruled that consent to the blood draw doesn’t eliminate the search warrant requirement. Like New Jersey, there is an implied consent rule in Pennsylvania, so a refusal is a separate criminal charge. In addition, the Birchfield decision specifically doesn’t cover breathalyzer tests. Refusing a chemical test will not make your DUI/DWI case any better and it could make it worse. With regards to DWI, please keep in mind that New Jersey, unlike Pennsylvania, has an additional charge within that statute for “allowing DWI”, which charges the owner of a vehicle with allowing an intoxicated person drive their vehicle.
3. Reckless versus careless driving
In Pennsylvania and New Jersey there is a major difference between reckless and careless driving. In New Jersey, reckless driving carries 5 points and is committed when a person willfully disregards the right to safety of others and drives in a manner that endangers people or property. Careless driving is committed when a person drives a vehicle without “due caution and circumspection (risk)” and only carries 2 points. Like New Jersey, in Pennsylvania careless driving is a much better alternative to reckless driving.
4. Drugs & Your Drivers License
In Pennsylvania and New Jersey you can have your driving privileges suspended for any drug conviction for a minimum of 6 months. While the judge has discretion in New Jersey to order the suspension, there is no discretion in Pennsylvania. If you are charged with Simple Possession or Possession with Intent to Deliver (PWID), this is another important consideration for your defense at trial or during pre-trial negotiations to alternative charges.
5. Traveling with guns or firearms through Pennsylvania and New Jersey
Pennsylvania, unlike New Jersey, is a shall issue state whereas the Garden State is a may issue state. This basically means that it is nearly impossible to obtain a license to carry a firearm in the state of New Jersey. Your Pennsylvania license to carry is not valid in New Jersey and you are still subject to a mandatory minimum sentence under New Jersey’s Graves Act with regards to an illegal possession (unlawful possession) of a firearm. While there are partial and full waivers of the mandatory minimum sentence, the prosecution must agree to these waivers. If you are transporting a gun or firearm through New Jersey and into Pennsylvania, make sure the gun is unloaded and the ammunition is kept separate from the weapon. The gun or firearm should also be locked in a guy or firearm case in the trunk of your vehicle. If the police do stop you, you should immediately tell them that you have a weapon and that it is secured. Even if you are a New Jersey resident, you more than likely do not have a license to carry a firearm in the state. It is only legal to transport the weapon to and from your home, from a gun range, or for repair.
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