Motor Vehicle Commission and Surcharge Debt - Incentive Program

The MVC (formerly DMV) has announced today the creation of an MVC Surcharge Payment Incentive Pogram.  The program will run from today, June 15, 2010, though July 30, 2010, and is designed to help MVC customers in judgment address their surcharges.

It's a vicious cycle.  If you don't pay the debt, you can't reinstate your drivers' license, but without the license, you can't legally drive to work to make the money to pay the debt.

This program is designed to wipe the slate clean or help those in judgment to arrange for more affordable payments and have their driving privileges restored.  Drivers eligible for this program include those who have been placed in judgment for failing to make surcharge payments or those in judgment who have already arranged a payment plan but are having difficulties making the payments.  Drivers with outstanding surcharges related to DUI or DWI convictions are not eligible for the incentive program.

There are approximately 273,000 drivers eligible for the incentive program.  Examples of the incentives being offered are longer payment plans and interest waivers.

Drivers who receive a personalized letter need to contact the specific collection firm noted on the letter.

For more information, drivers with surcharge debt should visit the MVC website.

DWI Changes: An Update

In January, I posted a discussion of State v. Ciancaglini here, regarding the sentencing changes in the DWI and refusal laws.

Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar.  Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision.  Oral argument has not yet been scheduled.

New Interlock Law for DWI

A revision, dubbed "Ricci's Law," to the current DWI statute revises ignition interlock device requirements for certain offenders.  This law has passed the legislature and is awaiting the signature of Governor Corzine.


Ricci Branca was a south Jersey teen who was riding his bicycle with friends when he was struck and killed by a drunk driver.  Two of the other cyclists were injured.  The drunk driver, who'd had at least 10 drinks before getting behind the wheel and who had a BAC of over .30, is now serving a 16-year sentence for aggravated manslaughter and related charges.


An ignition interlock device is a mechanism installed into a vehicle's dashboard.  It works like a breathalyzer, and prevents the vehicle from starting if a BAC (blood alcohol concentration), usually between .02 and .04 is registered.  Many studies have shown that interlock devices assist to prevent drunk driving and are effective in combating repeat offenses of DWI.  I am not going to dispute those studies, although the device is not foolproof and requires maintenance.


The DWI statute in NJ, as it stands now, provides that a judge may order the installation of an ignition interlock device for six to twelve months for first offenses.  For second, third, and subsequent offenses, judges must order the installation of an interlock device for one to three years or suspend all license plates and registration certificates for two years (for a second offense) or ten years (for a third or subsequent offense).


Those registration suspensions run concurrently with the required license suspension of the offender; two years for a second offense, and ten years for a third, and affect only vehicles owned by the defendant or registered to him.  They are a current alternative to the installation of the interlock device.


With the revision, the bottom first-offense tier would not be altered.  A person convicted of DWI with a BAC of at least .08 but less than .10 would be subject to the same penalties as previously.


However, a first-offense DWI conviction with a BAC of .10 or higher would now require the installation of an interlock device in the vehicle principally operated by the offender, no matter who the owner.*  The installation would be required for six to twelve months after the period of drivers license suspension expires.


A first-offence DWI conviction with a BAC of .15 or higher has the same requirement, except that the installation must occur during the period of license suspension and extend six to twelve months thereafter.


For a second DWI conviction, the judge's option to suspend a person's registration for two years concurrent with the required license suspension would be eliminated, and the interlock installation during the two-year period of license suspension and for one to three years thereafter would be required.


For a third DWI conviction, the judge's option to suspend a person's registration for ten years concurrent with the required license suspension would be eliminated, and the interlock installation for the ten-year period of suspension and for one to three years thereafter would be mandatory.


Note:  This new interlock requirement will also apply to convictions for refusal to submit to a breath test.


*This means that if a vehicle you own and which is registered to you and used by you is also the principal vehicle of your spouse, parent, child, sibling, roommate, friend, partner, girlfriend, or boyfriend your vehicle will require the installation of the device and you will be required to use the device to start your ignition for the entirety of the period of installation, anywhere from six months to thirteen years.  Be careful!  This means that the vehicle may not start if you (the non-offender owner or driver of the vehicle) are using it and have a glass of wine or a beer with dinner.  These interlock devices are sensitive and will also register a BAC if you have recently (within the past 15-20 minutes) used mouthwash or a breath spray containing alcohol.

DWI, Refusal, and New Sentencing Problem

State v. Ciancaglini, January 7, 2010 - A discussion
[Full text of the decision here.]

The facts in brief:  The defendant was stopped for traffic offenses in May of 2008.  After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.

The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.

The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties.  She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction.  Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute.  She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.

At this time, the defendant has already served the thirty-day jail sentence.

The issues:  Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated?  Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?

The court's holidng:  Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.

The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself.  You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.


While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal.  On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions.  On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.

While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.

Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases.  However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.

For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.

Therefore, the defendant's September 2008 conviction for DWI was her third offense.

The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.

Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case.  The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.

Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.

The end result:  The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court.  The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.

What does all of this mean to you?  If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.

This may seem unjust, and I agree.  You can be sentenced as a second or third offender without first been convicted of an initial DWI.

The smartest thing?  Do not refuse a breath test.  In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.

"Escorts" and the Domestic Violence Act

J.S. v. J.F., December 10, 2009 - A Discussion
[Full text of the decision here.]

The facts in brief:  The plaintiff worked as a dancer at several clubs where defendant was a patron, and defendant occasionally paid plaintiff to be his paid escort.  They went out on several occasions, including once when the defendant took the plaintiff to his parents' house for Thanksgiving.  After the plaintiff began seeing someone, the defendant began to threaten the plaintiff and her boyfriend with bodily harm and deportation.  The plaintiff obtained a temporary restraining order based on terroristic threats and harassment on December 2, 2008.  Eight days later, after a final hearing, the judge issued a final restraining order.

The issues:  Does the plaintiff qualify as a victim of domestic violence in the context of the parties' relationship, although the defendant paid for her company?

The court's holding:  The New Jersey Domestic Violence Act outlines the state's definition of domestic violence and the parameters under which relief can be granted.  Not anyone can obtain a restraining order against anyone else in the New Jersey Family Court.

[For instance, you can't go to Family Court to get a restraining order against your neighbor or some guy at work, even if he smacked you in the head with a baseball bat.  There is other relief available in the criminal and civil courts for cases like that, but not in family court.]

The protected classes of people under the Domestic Violence Act are spouses, former spouses, and any present or former household member of the defendant, anyone with whom the defendant has a child in common, or anyone with whom the defendant has had a dating relationship.  The Act, however, has not defined the term "dating relationship," and has left it to the courts to make that determination on a case-by-case basis.  The only precedent for the Appellate Division to consider in this matter was a single 2003 case, decided at the trial court level.  The holding of a lower court is not binding on the Appellate Division, but is merely advisory.  In the 2003 case, the judge suggested several factors to consider in determining the existence of a dating relationship:  Minimal social bonding of the parties, above and beyond the casual, how, long the alleged dating relationship existed prior to the acts of domestic violence, the nature and frequency of the parties' interactions, the parties' individual or joint expectations with respect to the relationship, the parties' affirmation to others of their relationship by statement or conduct, and any other reasons unique to the case in question that support or detract from a finding that a "dating relationship" exists.

The Appellate Division declined to use the test outlined in that case, but agreed with the 2003 trial court's reasoning that "the facts should be liberally construed in favor of finding a dating relationship because the Act itself is to be liberally construed in favor of the legislative intent to eradicate domestic violence.  Stated another way, the Act embodies a strong public policy against domestic violence.  Because the Act is remedial in nature, it has been liberally construed for teh protection of victims of domestic violence.  Indeed, the Act itself announces that its purpose is 'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'"  As the Appellate Division stated, "These principles would not be served by a cramped interpretation of what constitutes a dating relationship."

In considering the scope of the Act, the Appellate Division rejected the defendant's contention that a relationship that includes a payment in consideration for the other's time precludes the finding of a dating relationship.

[The court went so far as to say that an au pair or live-in housekeeper would qualify under the Act as a protected class as someone who "is a present or former household member."  Financial benefit from the relationship does not automatically preclude legal benefits under the Act.]

The key consideration is what the particular  parties involved would view as a "date," which can vary from couple to couple, group to group, generation to generation.  No matter what, the courts should be careful to consider the parties' own understanding of their relationship.

Here, the defendant contradicted himself with regard to this issue, asserting that the relationship was merely "professional," while also stating that he gave the plaintiff money to help her out.  He did not object when the judge classified the relationship as "dating."  The plaintiff maintained throughout her testimony that they were boyfriend and girlfriend.

The end result:  The Appellate Division refused to vacate plaintiff's restraining order against defendant.  Plaintiff has a permanent Final Restraining Order.

What does all of this mean to you?  If you are a victim of violence, do not think that recourse is not available to you simply because you are in some semblance of a business relationship with your abuser.  If your situation is akin to the one described here, or if you are an in-home, full-time employee of the abuser or the abuser's family member, you may very well be entitled to a domestic violence restraining order and the protections with which it comes.  Definitely contact the police and/or an attorney for advice and assistance.

Jail Credit

State v. Allen - A discussion

[Unpublished Decision of the Appellate Division - Decided September 18, 2009]

The facts in brief: The defendant pled guilty in Middlesex County to second-degree robbery pursuant to an agreement with the State. He was sentenced to a six-year term of imprisonment, one year less than the sentence the State recommended, subject to the No Early Release Act. Also pursuant to the plea agreement, the sentence was concurrent with a sentence the defendant was already serving in Mercer County, for another second-degree robbery. He was awarded "gap time" credits for the 97-day period between his sentencing in the two counties.

[Gap time is relevant when a defendant, who has been sentenced previously to a term of imprisonment, is sentenced again for a different offense committed prior to the imposition of the earlier sentence. In that circumstance, the defendant is credited at the time of the second sentence for the time of imprisonment served on the prior sentence.]

He was arrested for and confined pursuant to the Mercer County charge between January 20, 2005, and his sentencing in Mercer County on March 10, 2006, and was therefore awarded jail credits for those 415 days as time served on the Mercer County sentence. On January 28, 2005, eight days after he was arrested and confined in Mercer County, he was arrested for the Middlesex County robbery. Because he was already confined on the Mercer County charge, the judge did not award jail credits against the Middlesex County sentence.

Defendant did not appeal from the judgment of conviction, but instead filed a petition for post-conviction relief, claiming entitlement to jail credits against his Middlesex County sentence. The trial judge denied the petition.

The issues: The defendant raised five issues on appeal: (1) Should he have been given jail time credit against his Middlesex County sentence from January 28, 2005, through March 10, 2006, in addition to the 97 days' gap time? (2) Was the sentence imposed illegal? (3) Was the defendant denied effective assistance of counsel, resulting in his guilty plea? (4) Should the PCR (post-conviction relief) Court have conducted an evidentiary hearing to determine the issues raised in defendant's post-conviction relief petition? (5) Is reversal required because of the cumulative effects of the errors during the sentencing hearing and the ineffectiveness of appointed trial counsel?

The court's holding: The arguments raised in Points 2, 4, and 5 lack sufficient merit to warrant discussion. The arguments raised in Point 3 was not raised at the trial level, and therefore cound not be considered on appeal.

The trial court's decision regarding sentencing was affirmed.

The Appellate Division determined that the trial court did not err by declining to exercise discretion and award duplicate jail credits to the Middlesex County sentence that had already been awarded against the Mercer County sentence. Although neither the Criminal Code nor the Court Rules address the propriety of duplicating jail credits in this fashion, jail credits are generally understood to apply only to confinement attributable to the offense that gave rise to the sentence, and impermissible if the confinement is due to the service of a prior-imposed sentence or another charge. Because the defendant's confinement as of January 20, 2005, was attributable to the charge pending in Mercer County, the trial court's refusal to award them against the Middlesex County sentence was consistent with precedent. It also did not deprive the defendant of the benefit of his plea agreement, which was for concurrent sentencing, not sentences that would end on the same date.

The end result: The defendant had to serve his sentences as set forth by the trial judges in Mercer and Middlesex Counties, with the sentences running concurrently but the Middlesex County sentence ending at a later date than that in Mercer County.

What does all of this mean to you: If you are already in jail pending trial on two separate charges at the same time, pursuant to two separate offenses, your "time served" jail credits can only be awarded against one of the sentences, the one pertaining to the offense for which you were actually being held in custody.

Mandatory Joinder

State of New Jersey v. Louis E. Veney, Jr. - A Discussion

The facts in brief: The defendant was arrested after an officer observed a "marijuana blunt" in his vehicle's console and the defendant told him there was a weapon in the car.

The grand jury indicted the defendant for third-degree "unlawful possession of a weapon" (Count 1), fourth-degree "hindering apprehension" (Count 2), second-degree "certain persons not to have a weapon" (Count 3). The state also charged defendant under separate complaint-summons with disorderly persons offenses of possession of marijuana and possession of drug paraphernalia, and with two traffic offenses, operating a vehicle with a suspended drivers license and operating a motor vehicle while in possession of a controlled dangerous substance.

Prior to trial, the State moved to dismiss Counts 1 and 2 of the indictment, with no objection from the defendant. This confirmed a letter previously sent to defense counsel indicating the State's intention to dismiss those counts. The court indicated an intention to dismiss the two counts after the jury was impaneled and sworn. After the jury was sworn, the State did not move again to dismiss the counts, but the trial proceeded only on Count 3 with regard to this defendant.

The jury found defendant guilty of Count 3, "certain persons not to have a weapon." The judge granted defendant’s motion of acquittal notwithstanding the verdict. At the same hearing, the defendant pled guilty, upon the advice of his attorney and pursuant to a plea agreement, to Count 1 in exchange for state recommending 4 years prison with 18 month period of parole ineligibility, dismissal of Count 2 and dismissal of the disorderly persons and traffic offenses.

The court sentenced the defendant according to the plea agreement.

The issues: Was the defendant denied effective assistance of counsel? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the bar against double jeopardy? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the mandatory joinder rule?

The court's holding: The state was barred from prosecuting the charge of unlawful possession of a weapon under the mandatory joinder rule, as well as the doctrine of fundamental fairness. The defense attorney should have sought dismissal of the charge prior to defendant's plea, the state previously having tried defendant to conclusion on another charge arising from the same core set of facts giving rise to this charge.

The Appellate Division determined that the Constitution's prohibition against double jeopardy was irrelevant, as jeopardy had not attached when the motion for Counts 1 and 2 of the indictment was made, as the jury had not yet been impaneled and sworn. Therefore, the State would have been within its rights to try the defendant on those separate charges.

However, the mandatory joinder rule precluded such a subsequent trial. That rule was adopted to bar separate trials for multiple offenses that are known to the prosecuting attorney at the time the first trial begins, when the offenses are based essentially on the same conduct or arise from the same criminal episode and are within the jurisdiction and venue of a single court. This rule is more widely applicable than that barring double jeopardy.

[Note: The court may still order a separate trial for multiple charges when it believes the occasion warrants it due to potential prejudice to either the defendant or the State.]

In this case, the State could not have proceeded to trial on Counts 1 and 2 of the indictment after the dismissal of Count 3 by the court. Therefore, by negotiating the plea agreement with defendant, the State had indirectly accomplished what the mandatory joinder rule prohibits. The defendant was "entitled to be free of the harassment and oppression of a second trial on offenses relating to the same episode."

The Appellate Division further concluded that even had the mandatory joinder rule been inapplicable in this case, the State should have been barred from proceeding on Count 1 by the doctrine of fundamental fairness.

In considering the fairness to defendant, the court examined his reasonable expectations. The letter to defense counsel, followed by the statements made in court describing the State's intention to dismiss Counts 1 and 2 and proceed only on Count 3 with regard to this defendant would lead the defendant to believe that, in proceeding to trial on Count 3, he would not have to face subsequent prosecution on Count 1. Further prosecution would violate the spirit of the mandatory joinder rule and the doctrine of fundamental fairness.

In addition, the court concluded that defendant was denied effective assistance of counsel, as his attorney should have moved to dismiss Counts 1 and 2 prior to the entry of a guilty plea by defendant.

The end result: The conviction of the defendant was reversed and the indictment dismissed by the Appellate Division.

What does all of this mean to you? The Appellate Division has reiterated the protection afforded to defendants from multiple trials stemming from the same instance of criminal conduct. Except in instances where the court orders separate trials for separate counts of an indictment, you will be subjected to only one trial, freeing you from the additional stress and expense of facing additional trials at a later date regarding the same indictment.

Miranda Rights and Juveniles

State of New Jersey in the Interest of A.S., August 12, 2009 - A Discussion

The facts in brief: A 14-year-old girl, A.S. was accused of molesting the 4-year-old grandson of her adoptive mother. Had she been an adult, the acts described would have constituted first-degree aggravated sexual assault. A.S. had been abandoned by her substance-abusing biological mother at the age of nine, and began living with her adoptive mother when she was eleven. She was reading at a third-grade level although she was in high school. She had no prior experience with the police, courts, or legal system.

After a detective with the county prosecutor's office interviewed the victim, A.S. appeared for questioning with her adoptive mother, at which time A.S. confessed to the acts alleged. At trial, the Family Court judge conducted a suppression hearing to determine the admissibility of this confession.

From the tape of the interview as well as A.S. testimony during the suppression hearing, the judge learned that the prosecutor had directed A.S.' mother to read to A.S. her Miranda warnings. When A.S. asked what a lawyer would do for her, her mother responded simply, "Suppose to represent you," and then told A.S. that she'd have to talk eventually and that they already knew what she'd done. A.S.' mother, without obtaining the juvenile's consent, told the prosecutor that he could question her. It was only then that A.S. signed the waiver.

When A.S. again asked what an attorney would do on her behalf, her mother and the prosecutor told her that he would represent her and ensure that her rights were not violated, but could not speak for her. She was told by her mother, "When the questions are asked, you have to answer the question" and by the prosecutor, "... you're the only one that can actually speak the truth here." A.S. was not asked again whether she would like to have an attorney; instead, her mother expressed impatience at the delay A.S. was creating and the prosecutor told A.S., "the truth is only gonna help you," and that "an attorney that's an assistant prosecutor was gonna review all this information," and "the more truthful you are and the more complete you are, okay, the better it looks for you, okay."

The two adults proceeded to question her until she confessed to the acts alleged. Throughout, the antagonism of her mother toward A.S. was clear as she repeatedly insisted that A.S. confess to the prosecutor.

During the hearing, A.S. stated that she understood "some of" her rights, and that when she refused to answer questions, she was intending to invoke her right to "remain silent," until she was badgered into responding. She also stated that she never asked for an attorney because they didn't do anything but just "sit there." The judge determined that the confession was indeed admissible, if troubling.

The issues: Was A.S.' waiver of her right to counsel and right to remain silent under Miranda v. Arizona given knowingly and voluntarily? Did A.S. invoke her right to remain silent?

The court's holding: The Appellate Division determined that the confession, in fact, should not have been admitted into evidence.

In the case of a juvenile, the standards regarding the waiver of Miranda rights are exacting.

As the court discussed, "To admit the confession of a juvenile over the age of fourteen, the State must demonstrate, beyond a reasonable doubt, that the statement was knowingly, intelligently, and voluntarily given," based upon factors including the suspect's age, education, intelligence, advice as to constitutional rights, repetition and length of questioning, and the suspect's prior encounters with the law. When a juvenile is being interrogated, the role of a parent takes on a special significance. The parent’s role is to support the juvenile and guide her, not to be an additional adversary in an unfamiliar and intimidating setting. The court emphasized the necessity for adult protection with a juvenile suspect.

With regard to A.S. specifically, nothing was done to contribute to her comprehension of her rights, discuss whether waiver was an appropriate course for her to take, or explain to her what the practical effects of a waiver would be.

In addition, A.S.’ long silences suggested that she was indeed attempting to invoke her right to silence, requiring further inquiry from the prosecutor with regard to A.S. wishes, rather than further interrogation. The courts have held that a request by a defendant to terminate an interrogation must be scrupulously honored, no matter how ambiguous, even when the person being questioned is an adult. This requirement imposed by the courts upon prosecutors is all the more important when the suspect is a juvenile.

Most troubling to the court was the evident conflict of interest resulting from A.S.’ mother’s relationship to the victim and her actions in the best interests of her grandson, to the detriment of her adopted daughter. The purpose of a parent’s presence at the interrogation of a juvenile is to provide a buffer between law enforcement and the child. No such buffer was created here.

The facts of this case, reviewed as a whole, rendered A.S.’ confession substantially unfair. The court found that, “In circumstances such as those existing in the present matter, where the adult advisor is known to have a close family relationship to the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability.”

The end result: In the end, the Appellate Division did uphold the adjudication of the Family Court. It had no choice, though it was gravely disturbed by the way the confession was handled and the findings of the Family Court judge with regard to its admissibility. The Family Court judge had indicated at trial that even without the confession he would have come to the same findings. It is the job of the Family Court judge to determine credibility, and he found the victim had given enough credible testimony to result in adjudication of A.S. as a delinquent and her registration with Megan's Law. It was not the place of the Appellate Division to dispute those findings.

What does all of this mean to you and your child?: The court has reiterated the great importance of protecting the rights of all defendants, but especially those of juveniles.

Certainly, if you have a conflict of interest with regard to a child in your care who has been arrested, it would be in the best interests of all concerned for you to obtain representation for the child to preserve his or her rights before any questioning begins. Failing to do so would merely drag out the process, harming the victim, harming the juvenile defendant, and increasing the expense.

If, as in most cases, you do not have a conflict of interest and are truly interested in protecting your child, do not allow him or her to be questioned without legal representation. If you cannot afford it, know that a public defender must be appointed on his or her behalf. Even if you can afford it, if there is no time given to you to to obtain private representation prior to initial questioning, a public defender must be assigned to protect your child. If you can obtain private representation, do so.

Prosecutors and police officers will always do all that is in their power to convince their suspect to waive his or her rights to counsel and silence and to confess; juveniles are treated no differently than adults in this. While they are not permitted to trample the rights of you or of your child, they will always, always tell you that it is in your child's best interest to talk, that the child would be helping himself and that they are there to help.

It is when they convince you of this, when you agree to permit your child to talk to the police or prosecutor unrepresented, that the defense attorney eventually retained to represent your child has the most difficult job ahead. It decreases the likelihood that your attorney can help, it decreases the likelihood that you will see a positive outcome to your child's case, and it increases the danger that your child will be adjudicated a delinquent and face the most severe types of punishment.