Frequently Asked Questions About DUI/DWI, Drug Possession, and Illegal Firearm Charges
Do I have to take a breathalyzer test when I am pulled over? Does an officer need a reason to search my car? What is a bench trial? Whether you have been charged with a crime or not, these FAQs will give you the information you need to protect your rights in Pennsylvania and New Jersey.
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What is the Difference Between Probation and Parole in Pennsylvania?
A person charged with a crime is obviously looking for the best option. Ideally, person wants to avoid a conviction all together, but there are situations where a person is convicted or accepts a plea deal because the evidence is simply overwhelming. Sometimes, even the best criminal defense strategy can’t beat undisputed facts or evidence which meets the elements of an offense beyond a reasonable doubt!
County or even a state prison jail sentence is obviously a concern in many cases involving drugs, guns, and even DUI but in addition to jail, a convicted person will almost always receive a period of probation and or parole. These two terms are often used interchangeable and therefore incorrectly because people fail to understand the difference. Probation is a period of time where a person must meet certain requirements in order to comply with their sentence. These requirements include the following:
- Remaining arrest free
- Clean drug screens
- Making payments towards restitution
- Maintaining employment
- Completing certain educational programs and/or classes
While a person is on probation, there won’t be any issue as long as they meet the terms of that probation. If they fail to meet the requirements, however, the judge can resentence the person to a new period of probation and/or a period of incarceration. The purpose of probation is to rehabilitate a person without incarceration. What most people fail to understand, however, is that probation is simply a jail alternative and if a person violates the conditions of it, the usual prosecution argument is that probation isn’t working. If a person fails to meet the conditions of probation, the prosecution can recommend that probation be revoked and that the person be sentenced to a period of incarceration followed by another period of probation. With a probation sentence the court is specifically ordering that the person not be incarcerated.
Parole, however, is different. Here, a person is ordered into custody but is released before the end of his prison term. So if a person was sentenced to 3-6 years of state prison, he may be paroled at the end of the 3rd year (the minimum date.) Again, like probation, if a person fails to meet the requirements, they are in violation of the terms of their parole and risk being sent back to prison to serve the remainder of their term (the maximum.) The only time counted toward parole, however, is time spent in jail. If, for example, you are sentenced to 11.5 to 23 months of county jail and paroled at your minimum date, you may owe another 11.5 months, if you commit a violation in the 20 month.
If there’s a violation of county parole, a judge can order that a person serve the remaining time on parole in custody. If it’s state parole, the state parole board will make that decision. In my experience clients often fail to understand that probation and parole are simply alternatives to jail. While obviously jail is the worse of the alternatives, the conditions of probation and parole are sometimes difficult especially for people with drug addictions.
There are two types of violation—technical and direct. A direct violation occurs anytime a person is arrested and convicted on a new criminal case! All other violations, including arrests, that don’t result in a conviction are technical violations. A direct violation will almost always result in your probation being revoked or you being sent back to jail to serve the remainder of your term. A technical violation, such as a positive drug screen or a failure to make payments may not result in as a harsh of a penalty; this is where the right criminal defense lawyer can make the difference.
For more information on probation or parole contact our office or visit our free download section
Blood Evidence, DUI, & The Confrontation Clause: Who’s a necessary prosecution witness?
A conviction for driving under the influence (aka drunk driving) requires the prosecution (district attorney aka D.A.) to establish all the elements of this charge beyond a reasonable doubt. One the elements of the criminal charge is impairment. While it isn’t always necessary for the prosecution to establish a specific blood alcohol concentration or content (BAC), the more serious DUI charges require it. BAC is based on the results of blood or breathalyzer test. The legal limit in Pennsylvania and New Jersey is .08.
If you’re going to trial on a DUI charge or thinking about going to trial, attacking these results should be a part of that strategy. Of course you’re criminal defense lawyer should have a trial and a pre-trial strategy. A pre-trial strategy focuses on the reasonable suspicion and/or probable cause grounds for the police stop and arrest which led to these criminal charges (Motion to Suppress Evidence.) A trial strategy, however, focuses on the elements of the actual criminal charges. In the case of a DUI/DWI, a trial strategy must involve reviewing the conclusion of the scientific results along with the chain of custody of the blood evidence.
When people think of chemical results, they often focus exclusively on the test itself and forget that scientists (human beings) are conducting those tests. We’re all human and we all make mistakes, or maybe try to cut corners sometimes. Scientists are no different and if you’re defense lawyer isn’t thinking this way, he is cutting your chances of trial success and a possible acquittal in half! If the prosecution wants to introduce blood evidence into your DUI prosecution, they need to produce the actual analyst or scientist who tested the blood. The Confrontation Clause within the United States Constitution prevents them from using another scientist or expert simply because they have the appropriate educational and professional qualifications.
The 2011 US Supreme Court case of Bullcoming v. New Mexico dealt with this specific evidentiary issue. In that case, the Court held that the prosecution’s attempt to introduce a surrogate analyst violated the defendant’s constitutional right to confront the witness against him. The Court stated that the prosecution must produce the actual analyst who performed and certified the laboratory results (the blood test.) The Confrontation clause doesn’t allow the assistant district attorney or prosecutor to introduce a forensic laboratory report containing a testimonial certification to prove a fact at a criminal trial through an analyst who didn’t perform or observe the test.
The court reasoned there are human actions (and therefore potential errors) not revealed in raw data that are open to cross examination. During DUI blood testing, the following occurs or may occur:
- The analyst receives the sample
- Is the seal broken?
- Has it been tampered with?
- Did he follow the test protocol?
- What is the protocol?
- How was it devised (what is standard)?
- Did anything occur that could jeopardize the circumstances surrounding the sample’s integrity or the analysis’s validity?
This Supreme Court decision obviously makes the prosecution of a DUI more difficult and some prosecutors may want your defense lawyer to stipulate to the admissibility of the blood test results. The admissibility of these results, however, in critical to the case against you. For more information on Driving Under the Influence charges call our office. I also encourage you to visit our free download section
- The analyst receives the sample
Speaking to Police: Do they always need to “read you your rights”?
Prior to discussing your constitutional right to remain silent, I want to restate my professional opinion regarding speaking to police or any member of law enforcement regarding criminal allegations—don’t answer any questions, don’t make statements (written or verbal) and call a lawyer! Speaking to police will never help your case! I believe so strongly in this advice that I’ve actually put it on the back of business card (pictured above.)
With that said, all persons have a right to remain silent under the Fifth Amendment to the United States Constitution and these rights are given to criminal suspects in the form of Miranda Rights which are read prior to a custodial police interrogation. These rights are named from the United States Supreme Court case of Miranda v. Arizona (1966) in which the Court ruled that incriminating statements, elicited by a suspect not informed of this right violates the Fifth Amendment and Sixth Amendment (right to counsel). Specifically, police must advise a suspect that he or she has the following rights:
- The right to remain silent;
- Anything the suspect does say can and may be used against him in a court of law;
- They have the right to have an attorney present before and during questioning; and
- They have a right, if they cannot afford the services of an attorney, to have one appointed.
Police can advise a suspect orally or in writing and the officer must make sure that the criminal suspect understands what is being said. While Miranda Rights are required under the Constitution, this protection is only triggered if a suspect is in custody and is being interrogated—custody and interrogation are critical elements. Custody doesn’t always mean a formal arrest especially in Pennsylvania where the restriction of a person’s movement (not free to leave) could be considered custodial. It is important to keep in mind, however, the fact that a person is in a police station or the police or law enforcement are simply speaking to someone and asking questions doesn’t trigger Miranda Rights or Constitutional protections. The fact that a police officer doesn’t administer Miranda warnings doesn’t mean that the statements are necessarily coerced and therefore inadmissible in court.
A custodial detention is only constitutionally permissible if based on probable cause under the Fourth Amendment to the United States Constitution. In Pennsylvania, the courts will apply a totality of the circumstances analysis to determine whether a person would feel free to leave. An encounter becomes custodial when under the totality of the circumstances it appears that the detention is coercive (again not free to leave.) If police inform a suspect that he is free to leave but the suspect nevertheless makes a statement, those words could be considered admissible even if Miranda Rights were never given to that person.
I’ve written articles on the forms of police contact and I encourage you to read them in addition to my information on probable cause, reasonable suspicion, as well as illegal search and seizure. When police fail to administer Miranda warnings it does not mean that the statements received are coerced but only that courts will presume that the constitutional right against compulsory self-incrimination hasn’t been intelligently exercised.
Miranda warnings only need to be administered when a person is taken into custody or his freedom has otherwise significantly restrained. Again, the issue of restraint and custody is often not very clear especially in situations where a person is sitting in a police station but not necessarily under arrest (“Just come in to talk to us.”). Criminal Courts are focused on whether a statement is knowingly and voluntarily made along with circumstances surrounding those admissions. The warnings, however, are important and in the event that a suspect were to make incriminating statements during the course of an unwarned interrogation police will usually administer the warnings and then re-question the suspect to ensure that there is no constitutional admissibility issue.
Prior to the Miranda decision courts would evaluate in-custody statements and whether they were voluntary within the meaning of the Due Process clause of the Constitution. Specifically, courts would evaluate whether the techniques used to obtain the statement offended Due Process. Miranda warnings practically reinforce a person’s Fifth Amendment right against self-incrimination.
DUI Evidence: What information do you need to give your lawyer?
If you’re charged with driving under the influence (DUI) in Pennsylvania or driving while intoxicated (DWI) in New Jersey, a sound defense strategy is critical to a favorable outcome. A favorable outcome can of course include a not guilty verdict but keep in mind that this type of result isn’t always possible (and it doesn’t necessarily mean that your DUI lawyer didn’t do his job.) The severity of DUI or DWI is based on the degree of one’s intoxication so a defense victory isn’t always a complete not guilty (while obviously preferred).
In Pennsylvania, for example a 1st time offender under 3802(a)(1) doesn’t face a driver’s license suspension provided that the DUI didn’t involve an accident. A conviction under 3802(c) (highest tier BAC greater than .159) faces 3 days in jail, a 12 month license suspension, an ignition interlock, along with substantially higher fines! Winning, therefore, doesn’t always mean no conviction, especially, if the prosecutor or district attorney has, what appears to be, a strong case against you.
The difference between a great result and a poor one, is often based on the information or evidence that your criminal defense lawyer collects prior to trial. This information isn’t always in the discovery and sometimes, you actually hope that it isn’t because you don’t want the prosecutor to use against you.
While the prosecution is obligated to provide the defense with all the information that it has on the case, it isn’t obligated to do the defense’s investigative work! Your lawyer needs ask you very specific questions to ensure that he has a complete picture about what occurred on the day or evening you were arrested for DUI; don’t just accept what the DA gives you as gospel! This critical information should include the following which may not be in discovery provided to the defense (it probably isn’t):
- Your height
- Your weight
- Last Meal
- Duration of drinking
- Number of drinks consumed (standard sized drink
- The type of drinks consumed (beer, wine, liquor)
- Time you left the bar, club, restaurant
- Time of accident (if it occurred)
- Time of arrest (it may be different than what police write down)
- Time of traffic stop (again, it could be different)
- Time of chemical test (blood test, breath test)
As you can see from this list, time is a critical part of a DUI defense because blood alcohol concentration or content (BAC). In addition to time, however, what you are drinking (size of the drinks) and what you consumed will influence the rate of alcohol absorption and its concentration. Your attorney can even roughly calculate your BAC with the Widmark formula based on the information that you provide to him. These answers are in addition to the results of the chemical test (blood or breath) that will be provided to your lawyer.
The results from those chemical tests are critical to prosecution’s case because more serious DUI charges require that district or prosecutor establish a specific BAC beyond a reasonable doubt. Issues such as the chain of custody of blood results, radio wave interference with the Intoxilyzer (Breathalyzer), the device’s maintenance records and the certification or qualifications of the person administering the test are all critical to your criminal defense
For more information on DUI defense in Pennsylvania or New Jersey, I encourage you to read the 2nd Edition of my book—5 Ways to Fight and Win Your Pennsylvania DUI Case
Are You Drunk? Calculate Your BAC from your DUI with the Widmark Formula
I’ve written previous articles on alcohol consumption and absorption as it relates to a person’s Blood Alcohol Content (BAC) in drunk driving cases. Most people have no idea how much alcohol it takes to go over the legal limit in Pennsylvania (.08 BAC). While some wrongly believe that they can estimate their level of intoxication based on the way they feel after drinking, a built up tolerance may provide someone with a false belief or confidence that they aren’t legally drunk.
Remember that while each of us has a different tolerance level based on our own alcohol consumption habits, we all expel (metabolize) alcohol from our bodies at the same rate–.015% per hour. This rate is the same for everyone regardless of body type, weight, height or what you drank (liquor, wine, beer) or the food that you consume (i.e. “eat some bread it will soak up the alcohol or drink some coffee to sober up.)
You can, however, roughly calculate your BAC without any devices with a mathematical equation known as the Widmark Formula. The equation is named for a Swedish Scientist, Erik M.P. Widmark (1889-1954) who was considered a pioneer in the field of forensic toxicology. His major contribution to this field was addressing alcohol’s absorption, distribution and elimination in people. These issue deal directly with concept of retrograde extrapolation which is using a person’s BAC level at a known time (the time of the breath or blood test) to estimate their BAC at earlier point of time (time of driving) driving under the influence (DUI) cases.
The Widmark formula calculates a person’s BAC with the following information:
- Amount of Alcohol consumed in a given period
The formula is as follows:
BAC = [Alcohol consumed in grams / (Body weight in grams x R)] X 100
The factors in this equation are defined as follows:
- R = Gender – a constant in this equation (.55 for females and .68 for males)
- Grams of Alcohol Consumed (Number of drinks x 14)
- To calculate this amount, you need to make the assumption that you are drinking “standard” sized drinks
- The standard sized drinks are as follows:
- 80 proof version of liquor (i.e. gin or whiskey) – 1.5 ounces
- Beer (5.0% alcohol) – 12 ounces
- Wine (12.0 alcohol) – 5 ounces
- In the United States, the standard sized drink continues 14 grams of alcohol
- Body weight in grams
- Body weight in pounds x 454 = bodyweight in grams
A 180 lb male who has drank 4 beers over the course of 2 hours will have the following BAC level.
4 beers x 14/ [(180×454) x .68)] x 100 =
56 / [55,570] x 100 = .10 BAC (above the PA legal limit of .08)
This, however, may not be an accurate BAC!
You must keep in mind that everyone metabolizes alcohol at the same rate–.015 an hour. You must therefore include this factor in the above equation. If our 180 lb male had been drinking for 2 hours, his BAC would be .10 -.030 = .07 BAC (below the legal limit)
Driver License Compact: Pennsylvania and Out of State DUIs (New Jersey, New York, Delaware)
A common question from clients is “if I was convicted of Driving under the Influence (DUI) in a different state can Pennsylvania (PennDOT) suspend my driver’s license?” This is an important issue because the Commonwealth shares borders with the following states:
- New Jersey
- New York
- West Virginia
While all of these states can obviously suspend your driving privileges within their borders for DUI, most people can adjust their driving destinations so that the suspension has no real effect on their driving capabilities. If you think about it, most people travel to states like New Jersey and New York for a week at the shore or to see some other tourist attraction for the day. Business travelers are the exception, but an Occupational Limited License for a specific state can also assist with a person’s ability to drive for work purposes only.
Pennsylvania does recognize out of state DUI convictions because the Commonwealth is one of 46 member states who have joined a Driver Licenses Compact (DLC). The DLC is an interstate agreement between states which was created to promote highway safety and traffic law obedience between member states. Under it, if a person is convicted of a DUI in New Jersey or New York (for example) those jurisdictions will report the conviction to Pennsylvania which the Commonwealth will then recognize. Pennsylvania, however, won’t suspend a person’s driver’s license because of an out-of-state DUI conviction if it’s the person’s first actual DUI. This means that the person can’t have any type of ARD – DUIs within PA or similar type non-trial/plea alternative programs in other member states.
If it is really the person’s first DUI, Pennsylvania will treat it as a violation of Section 3802(a)(2) prohibiting the operation of a motor vehicle with the blood content of at least .08 but less than .10. This offense doesn’t carry a license suspension in the Commonwealth.
If you’re convicted of a DUI in another state, it’s important that you don’t try to hide it from Pennsylvania during a driver license application. While Pennsylvania won’t suspend a driver’s license for a first time DUI defense outside of its borders, PennDOT does have the ability to cancel your driver’s license if they later learn that you failed to truthfully answer questions on their driver’s license application question pertaining to offenses and suspensions in other states.
Pennsylvania will also consider an out of state DUI conviction as a first offense if the prior conviction is more than 10 years old. The Commonwealth will treat any out of state DUI conviction the same regardless of your Blood Alcohol Content (BAC) level but additional criminal charges (vehicular homicide, substantial property damage, substantial physical injuries to another driver) may cause a suspension. The DLC not only recognizes DUIs but any felony type offense or other crime (manslaughter, negligent homicide) committed while operating a motor vehicle while in that state. Pennsylvania, however, like, Maryland and New York, doesn’t assess traffic points for minor moving violations (speeding, stop signs) outside of the Commonwealth. The following states aren’t members of the DLC:
For more information on drunk driving charges and defenses, I encourage you to read the second of my book—5 Ways to Fight & Win Your Pennsylvania DUI Case.
Gun (VUFA) Crimes in Pennsylvania: Loaded or Unloaded – Does it matter?
I’ve written previous articles on violations of the Uniform Firearms Act in Pennsylvania (VUFA). The most common offenses that we see in our criminal defense practice in Philadelphia are violations of Section 6105, 6106, 6108, and 6110.2. These crimes can be graded as felonies and misdemeanors depending on the circumstances surrounding the arrest and the person’s prior criminal history. Under Section 6105(a)(1), a person is guilty of a felony of the second degree if he’s convicted of carrying a weapon as a “prohibited person” after being convicted of a “enumerated felony.” Whether the firearm is loaded or unloaded it’s still a felony of the second degree but the offense gravity score (OGS) drops from a 10 to a 9. Under the same section the conviction for 6105 is a misdemeanor if the person is prohibited from carrying a firearm due to a conviction for an enumerated misdemeanor.
An enumerated misdemeanor would include such offenses as certain multiple driving under the influence (DUI) charges, and certain drug misdemeanor charges. In addition, a person who is the subject of an active protection from abuse order (PFA) commits a misdemeanor of the first degree if he intentionally or knowingly fails to relinquish a gun, firearm, weapons or ammunition upon the issuance of such an order. If the gun or firearm is loaded the offense gravity score for this offense is a 5 but it’s a 4 if the gun is unloaded.
A person who is prohibited from carrying a gun or a firearm can also commit a violation of Section 6106 if he is found with the weapon outside of his home or place of business. Under Section 6106(a)(1), a person commits a felony of a third degree if this person is already ineligible under Section 6105. It is still a felony of the third degree if the gun or firearm is unloaded but the offense gravity score drops from a 9 to a 7. A violation of section 6106(a)(2) is a misdemeanor of the first degree if a person is eligible to carry a gun or a firearm and is committing no other criminal acts at the time of his arrest. If the gun is loaded the offense gravity score is a 4 and if the gun or firearm is unloaded it is a 3. Under Section 6110.2(a), a person commits a felony of a second degree if the gun is loaded. While it’s still a felony of the second degree if the gun is unloaded the offense gravity score drops from a 10 to a 9.
Gun and firearm offenses are serious and it is important that your attorney understand the different elements of each of these offenses. I encourage you to read my monthly newsletter for updates on these crimes and visit our free download section for a copy of my latest book, “What Everyone Should Know About Guns, Drugs, and Defense Attorneys in Pennsylvania”.
Drugs in Pennsylvania: Possession with the Intent to Deliver (PWID) – Does the weight Matter?
Under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. Section 780-101) Possession with the Intent to Deliver (PWID – 35 P.S. Section 780-113(30)) is a felony offense in Pennsylvania and therefore much more serious than the illegal possession of a controlled substance or drug for personal use (aka knowing and intentional possession). While all PWID crimes are felonies, the severity of a criminal penalty is based on the drug or substance’s weight. Keep in mind that the prosecution must prove all elements of a criminal offense in Pennsylvania and any other jurisdiction (including federal) beyond a reasonable doubt. Unlike simple possession, the prosecution (district attorney) must prove not only actual or constructive possession of a controlled substance, narcotic, or drug but an intent to manufacture, deliver, or distribute it.
The District Attorney (prosecution) can establish the intent to distribute, deliver or manufacture element with either observed transactions or with circumstantial evidence (bags, scales, large quantity of money, other drug paraphernalia). If there aren’t observed transactions, however, the prosecution will need an expert to testify that the circumstantial evidence is indicative of an intent to distribute, deliver, or manufacture the drug. Obviously the prosecution must prove possession before it can establish an intent to deliver or distribute and readers of my previous articles understand that constructive possession is just as good as actual possession when it comes to the prosecution’s burden of proof in these cases. While the elements of a PWID charge are important, it is equally important to understand that the severity of a criminal penalty increases as the weight of the drug found within the person’s possession increases.
For example, a PWID charge for over 1,000 grams of heroin, cocaine, or any Schedule I or Schedule II controlled substance has an offense gravity score (OGS) of 13, while a PWID for these same substances with a weight of 100 – 1,000 grams has an OGS of 11. 50 – 100 grams has an OGS of 10. These different weights would expose a person to the following criminal penalties even if they had no prior criminal history in Pennsylvania:
DRUG OGS SENTENCE GUIDELINE Cocaine, Heroin,
Schedule I, II
13 60-78 months Cocaine, Heroin,
Schedule I, II
11 36-54 months Cocaine, Heroin,
Schedule I, II
10 22-36 months
As you can tell as the OGS falls, so does the person’s potential time in jail. Unlike, New Jersey, Pennsylvania doesn’t have mandatory minimum sentencing for drug offenses under the Controlled Substance, Drug, Device and Cosmetic Act, but many judges within the Commonwealth will still follow these sentencing guidelines. It’s important that if you’re charged with a PWID charge in Pennsylvania, your attorney not only look at the elements of the criminal charges but also pre-trial issues such as illegal search and seizure. If a Motion to Suppress evidence (illegal search and seizure) isn’t successful, your attorney must argue not only reasonable doubt with regards to the prosecution’s presentation of the evidence (actual vs. constructive possession) but also reasonable doubt with regards to the amount of weight at issue in the case—this can make a huge difference!
The weight of the drugs is tremendously important because it will control the amount of time a person might spend in jail following a conviction. In addition to jail, a person convicted of PWID faces a substantial find even for a first time offense. A first time offender for a PWID charge faces a maximum fine of $250,000.00 if the drug is heroin, oxycodone, methadone, or LSD and $100,000.00 fine it the drug is cocaine, crack, PCP, or methamphetamine.
For more information on drug crimes, I encourage you to read my monthly newsletter or pick up a copy of my latest book, “What Everyone Should Know about Guns, Drugs, and Defense Attorney’s in Pennsylvania”.
Pre-Trial Intervention (PTI) for Out-of-State Gun Offenders in New Jersey: What factors will the prosecution consider?
I’ve written previous articles on the Graves Act, the unlawful possession of a gun or firearm, and the mandatory minimum sentences that come with that conviction under the Act. Despite this mandatory minimum, the prosecution is still permitted to agree to a waiver of this requirement and even pre-trial intervention (PTI) in certain circumstances for out of state visitors who unlawfully possess a weapon in the Garden State.
Before getting to these requirements in Jersey, it’s important to understand that the prosecution won’t cut a person a break if that person comes to New Jersey and has a prior conviction or some other issue that wouldn’t allow them to carry the weapon in the first place (i.e. 6105 – VUFA – Pennsylvania).
I also encourage you to read my previous article on transporting a gun or firearm through this state and the requirements for lawful transportation. In the event, however, that you fail to lawfully transport a weapon through New Jersey and you’re arrested for the unlawful possession of a firearm in the state, the prosecution will consider the following with regards to a waiver of the Graves Act mandatory minimum and a PTI application:
• Minimal exposure of the firearm to persons in New Jersey
o This means that the prosecution will consider whether the gun or firearm was kept in the car or motor vehicle at all times and whether the Defendant carried, or planned, to carry the firearm or gun on or about his person and outside of the vehicle. Further, traveling through the state on an interstate highway for example with few or any stops presents less of a danger than a longer visit with multiple visits and likely interactions with non-motorists in the state. A loaded firearm is also looked at much differently than an unloaded firearm which obviously presents less of an immediate risk to persons with whom the defendant interacted with during their time in the state.
• The defendant is otherwise a law abiding person.
o This is a huge part of the PTI process for a Graves Act offense. The prosecution will consider the nature and severity of the other crime or offense which led to the police’s discovery of the gun or firearm. These would include a traffic stop, an ordinance violation, a disorderly person’s offense, or some other crime. Obviously if a person is charged with another indictable crime (in addition to the gun) this would go against the person’s possible PTI application. The prosecution will also consider a person’s other pending cases, prior criminal record, and juvenile record in or out of the state.
• The defendant informing police of the presence of the firearm in response to a question (i.e. Is there anything the car that I should know about?).
o Volunteering information about the presence of a gun or firearm is especially important because it tends to confirm that a person didn’t realize that possession of the firearm was unlawful in the State.
• Circumstances which lead to the confusion about New Jersey’s law regarding guns and firearms.
o While everyone is presumed to know the law (ignorance isn’t a legal defense), a claim of ignorance is viewed with greater skepticism if the person was on actual notice that carrying a weapon outside of his home state could be considered a crime (i.e. Does a person’s out of state carry permit advise them that carrying is limited to that particular state?).
The bottom line is that there is no exact formula that the prosecution will use to accept or deny a PTI Application for an out of state person who carries a gun or a firearm in New Jersey. The prosecution will weigh the above mitigating aggravating circumstances and make a determination as to whether there are compelling reasons to justify a person’s admission into this special program. In closing, it’s important to consider that even if a person isn’t accepted into PTI the prosecutor can still invoke a “safety valve” to the Graves Act pursuant to NJSA 2C:43-6.2 which will allow a person to serve a non-custodial (no jail) sentence.
A Permit to Carry a Gun in New Jersey: Is it always necessary?
In New Jersey it’s a crime for a person to knowingly possesses a handgun outside of his home or place of business without first obtaining a permit to carry it (2C:39-5). A person who violates this section of New Jersey’s Criminal Justice Code commits a crime of the second degree for unlawful possession of a weapon. There are, however, exceptions for a person who carries a gun, rifle, or shotgun outside of their home or place of business. Before explaining the law, keep in mind that unlike a hand gun, carrying a rifle or a shot gun doesn’t require a permit to carry but rather a firearms purchaser identification card.
The most common situations where a person could be arrested for unlawful possession of a weapon but fall under an exception is traveling to and from a firing range or a place where he/she was hunting or fishing in a case of a rifle or shotgun. If you are transporting a handgun, shotgun, or rifle through New Jersey, it needs to be carried unloaded and contained in a closed and fastened case, gun box, securely tight package, or locked in the trunk of an automobile in which it is being transported. This matter of transporting the weapon also applies to situations where a person is traveling through the Garden State with a weapon from a different state where that person maintains or has the proper authority to carry the weapon.
If you’re traveling through the Garden State, the firearm and the ammunition must be locked in a container other than the vehicle’s glove compartment or console. The firearm must be unloaded and neither it, nor the ammunition, that is being transported can be readily or directly accessible from the passenger compartment of the transporting car or vehicle. Federal law (18 US Code§ 926(a)) is what New Jersey uses as a guide to determine if a person is lawfully transporting a firearm or gun through the state.
If you’re driving through New Jersey, you don’t need to give the state notice that you are doing so with a firearm provided you’re in compliance with those federal laws. The federal law however will only protect you if meet all of the following requirements:
- The possession of the firearm was lawful in the state where the journey began;
- The possession of the firearm will be lawful in the state where the journey will end;
- The person transporting the firearm is doing so with a lawful purpose;
- The firearm is unloaded;
- The gun or firearm isn’t directly accessible from the passenger compartment of the vehicle;
- The ammunition isn’t directly accessible from the passenger compartment of the vehicle;
- If the vehicle doesn’t have a passenger compartment that is separate (most cars and trucks/ SUVs) the firearm and ammunition must be in a locked container other than the vehicles glove box or console;
- The person is not any of the following: a convicted felon, a fugitive from justice, or an illegal alien.
- The person isn’t any of the following:
- The person has been adjudicated to be mentally defective
- The person has been committed to a mental institution
- The person has been dishonorably discharged from the armed services
- Or renounced his United States citizenship.
It’s very important that you’re aware of the weapons laws in New Jersey as the Graves Act subjects even a first time offender to a mandatory minimum state prison sentence. While there are waivers under the Graves act and other alternatives to it, the prosecution isn’t obligated to agree to them. The Act specifically requires that a person convicted of the unlawful possession of a firearm must serve 42 months in prison before becoming eligible for parole.
Prosecutors, however, aren’t permitted to categorically deny the defendant who applies for pre-trial intervention (PTI). There is, however, a rebuttable presumption that a person charged with a Graves Act crime isn’t eligible for PTI. PTI is only available for second degree offenses if there are “compelling and extraordinary reasons to justify diverting the case from ordinary prosecution”. If a person isn’t eligible for PTI the prosecutor may file a motion pursuant to NJSA2C:43-6.2 to reduce the stipulated 42 month prison sentence to one (1) year or in some cases a non-custodial probation.