My Top 5 Criminal Defense Tips for Summer 2023
As we get ready to kick off Summer 2023 please keep in mind 5 important legal tips, which can be a huge benefit if you are arrested and charged with a crime involving illegal drugs, guns, or drunken driving (DUI/DWI).
- Never give police consent to search your house or car….but don’t be a jerk!
All searches done in Pennsylvania and New Jersey without a warrant are presumed to be unconstitutional. While there are exceptions to the warrant requirement which go far beyond this short article, giving consent usually eliminates your constitutional right. Your criminal defense attorney can’t challenge the constitutionality of the search if you consent to it. While there are exceptions to the search warrant requirement, giving consent doesn’t even allow your attorney to argue that the exception doesn’t apply in your case. 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 isn’t allowed to search you or your property, if he tries to do it anyway never stop him or her.
2. If you are 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 (Title 75, Section 3802(a)(1)). 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”, (NJSA 39:4-50(a)) which charges the owner of a vehicle with allowing an intoxicated person drive their vehicle. DWI in New Jersey isn’t a criminal offense but a person can’t still receive a jail sentence if convicted of the offense. Read my article on New Jersey’s offenses vs. crimes.
- 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 (39:4-96) 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” and only carries 2 points. Like New Jersey, in Pennsylvania careless driving (Title 75, Section 3736) is a much better alternative to reckless driving (Title 75, Section 3714). 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.
- 4. Traveling with guns or firearms through Pennsylvania and New Jersey
- COVID doesn’t create some exception to gun laws! 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. Read my article on New Jersey Graves Act (NJSA 2C:43-6(c))
- 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. Keep in mind, Pennsylvania, unlike New Jersey, has reciprocity with the following states:
- Drug Possession & Drivers Licenses Suspensions in Pennsylvania & New Jersey
5. New Jersey License Suspension & Drug Offenses
New Jersey will suspend a driver’s license for any drug offense including drug paraphernalia which is often a good way to avoid a license suspension in Pennsylvania. While New Jersey has a specific law addressing the operation of a motor vehicle while in possession of a controlled substance, a person faces a license suspension for any drug offense even if it didn’t involve the operation of a car or some other motor vehicle.
Under NJSA 2C:35-16, when a person is found guilty of any drug offense under Title 35 or 36 he or she forfeits their right to operate a motor vehicle within the Garden State for a minimum of 6 months and up to 2 years! The suspension would start on the day the person was sentenced unless the sentencing judge found the “compelling circumstances” warranting an exception to the suspension requirement. In New Jersey, a compelling circumstance exists if the forfeiture of the license will impose a “extreme hardship” on the person and alternative means of transportation are not available. This is where the services of a strong trial advocate can really benefit you because it is up to your criminal defense lawyer to present a strong argument to the judge as to why he or she should not suspend your driver’s license for up to 2 years.
Pennsylvania License Suspension & Drug Offenses – Recent Change
Pennsylvania has eliminated and repealed the mandatory license suspension associated with underage drinking under 18 Pa.C.S.A Section 6308 and Possession of a False Identification Card (Fake ID) under 18 Pa.C.S.A Section 6310.3. This change to Pennsylvania’s Vehicle Code also eliminates the mandatory license suspension for the illegal possession of drugs (misdemeanor charge) and possession with intent to deliver illegal drugs or narcotics (PWID)(felony offense). This change took effect until April 22, 2019.
Have a great 2023 Summer!
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