What is Probate?

Probate is the process by which your last Will is determined to be your final statement and confirms the appointment of the person or institution you have named to administer your estate. The term probate is also used in the larger sense of probating your estate. In this sense, probate means the process by which assets are gathered and applied to pay debts, taxes and expenses of administration, and distributed to those designated as beneficiaries in your Will.

How is a Will probated?

The following is a simplified outline of the general probate process:

• The original Will is filed with the Court.

• The Executor named in the Will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.

• The Personal Representative files a Petition for Probate of the Estate.

• For approximately nine months from the date of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.

• During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.

• When the nine-month claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.

• If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

The minimum amount of time that the probate process can be completed is approximately nine months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original nine-month claim period, etc.

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When can my driver’s license be suspended or revoked?

Driving a car is considered a privilege– and the State of New Jersey will not hesitate to take it away, if a driver behaves irresponsibly on the road. A State may temporarily suspend your driving privileges for a number of reasons, including:

• driving under the influence of alcohol or drugs
• refusing to take a blood-alcohol test
• driving without liability insurance
• speeding
• reckless driving
• leaving the scene of an injury accident
• failing to pay a driving-related fine
• failing to answer a traffic summons, or
• failing to file an accident report.

In addition, New Jersey uses a “point” system to keep track of a driver’s moving violations: each moving violation is assigned a certain number of points. If a driver accumulates too many points within a given period of time, the Motor Vehicle Commission (MVC) will suspend his or her license.

Why doesn’t New Jersey Motor Vehicle Commission (MVC) return a driver’s license after the period of suspension?

For security purposes, New Jersey MVC no longer maintains paper files. When a driver’s license is surrendered due to suspension, a notation is made on the driver history record and the actual document is destroyed. Text appears on the driver’s restoration notice to enable him or her to obtain a free replacement license at any Motor Vehicle Commission agency when the driving privilege is restored.

Should I plead guilty or not guilty to a traffic violation in a court of law?

To answer this question, you will have to factor in potential fines, penalties, surcharges, court costs, motor vehicle points, insurance eligibility points and effects on your driving privileges that will follow a guilty plea to the charged offenses.

If you plead not guilty, you have an opportunity to go to court and have a trial, at which the State, represented by the municipal prosecutor, will have to prove your guilt to the judge beyond a reasonable doubt. You can also plead not guilty and see if you or your lawyer can plea bargain with the municipal prosecutor for a factually similar, but legally different result. The municipal court judge, prosecutor and police officer all have access to your driving abstract, and this is a major factor in the State’s decision on the terms of a plea bargain.

Are there viable excuses or questions that might prevent an officer from issuing a traffic ticket?

As a general rule, if you are speeding to the hospital, or run a red light due to an emergency, a ticket will not likely be issued and you might get a police escort to accompany you. But in the end, the violator’s attitude really does make a difference whether or not a ticket is issued. The officer generally has the last word on traffic stops, and motorists can gain an advantage by being cooperative and patient with questions. Also, it doesn’t hurt to ask the officer for a warning.

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Three ways points can be reduced and/or deducted:

• For every year of safe driving (no violations or suspensions), up to three points may be subtracted from your point total. This reduction of points occurs one year after:
  • your last point violation; or
  • your license was restored; or
  • the last time annual safe driving points were subtracted from your record (whichever is later).
• After completion of a Motor Vehicle Services (MVS) offered driver improvement program, up to three points may be subtracted from your point total. These programs are only offered to problem drivers selected by MVS. Credit is given for one program maximum every two years.
• After completion of a MVS approved defensive driving course up to two points may be subtracted from your point total. Credit is given for one program maximum every five years.
• Please visit the “Improv-School” banner on my website: www.newjerseytrafficattorney.com for more information on on-line driver improvement program.

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1. The police make an unconstitutional stop of your vehicle.

The police can’t stop your vehicle on the basis of an anonymous call, or if there is no probable cause. In most cases, the police must stop the driver for some type of moving violation to justify the DWI arrest. If there are no sufficient grounds to substantiate the stop of your vehicle, then make sure that your counsel files a motion to suppress. This is quickly becoming the strongest DWI defense in New Jersey.

2. The police can’t question a person without informing him or her of their Miranda rights.

In many cases the drivers get scared and they confess to drinking and driving. Always be cognizant of the fact that the police must issue a driver their Miranda rights before he or she can be questioned.

3. Stopping a vehicle without probable cause.

The police can’t stop a driver merely because they are suspicious that the person was driving under the influence. The police have to substantiate the traffic stop with a moving violation such as weaving, speeding, or an improper lane change. If the police can’t substantiate any probable cause to justify the stop, then the DWI case will be dismissed.

4. Stopping a vehicle just to check the driver’s license, registration, and insurance.

In many cases the police will stop a vehicle only to check the status of the person’s driver’s license, registration and insurance. If the police then arrest the driver for a DWI, then in many cases a good lawyer can contest the validity of the stop on the lack of any probable cause.

5. Stopping a vehicle for no reason at all.

In many cases the police are really on a “fishing expedition” to try to arrest as many DWI drivers as possible. This type of attitude is especially prevalent on weekends and in the summer. The police must have a valid reason to stop a driver. The common reasons to justify a valid stop are for speeding, weaving, or for an improper turn. If the police have not issued a moving violation to a DWI driver, then in many cases the DWI case will be dismissed because there is no probable cause.

6. Not having their alcotest operation certificate renewed.

A police officer must be qualified by the Attorney General and by the New Jersey State Police to operate and administer an alcotest machine. A police officer who seeks to administer an alcotest(s) must be certified. The certification is essentially a licesnse to conduct breath tests. Like any license it has an expiration date. An alcotest operator’s certificate is only valid for the year in which it is issued, and for the following two years. N.J.A.C. 13:51-1.8(a). In many cases, especially in high crime townships, the police do not keep their breathalyzer certifications up to date.

7. The alcotest machine has a history of malfunctioning.

A lawyer should always check out the certificates of the alcotest machine. If the DWI case has a marginal BAC reading, and if the alcotest machine has a history of being unreliable, then this fact can assist the defendant to win the case.

8. The police fail to read DMV Standard Statement 36 to the DWI driver.

The DMV Standard Statement 36 is an eleven-paragraph page that must be read to all DWI drivers. The police will then ask the DWI driver to sign at the bottom of the statement. If the police do not read the entire DMV Standard Statement 36 to the DWI driver, then in many municipal courts they will dismiss the case. This is a great defense, and it should not be overlooked.

9. Proper Operation of the Alcotest machine.

The Alcotest 7110 is alleged to be foolproof. Nonetheless, currently there are still many requirements that the police officer must comply with to properly operate the alcotest machine. In a DWI case the prosecutor must demonstrate that the alcotest machine was used in accordance with these accepted procedures. The prosecutor must demonstrate that the alcotest machine was properly operated by the police officer who conducted the breath test.

10. The police fail to wait twenty minutes after the arrest to conduct the breath tests.

The police must wait at least twenty minutes after the arrest to conduct the breath tests. The reason for this waiting period is to permit the DWI driver’s alcohol residue to dissipate. Many courts will recognize this defense and dismiss the case if there is a violation.

11. The police fail to wait ten minutes between the breath tests.

The police must wait at least ten minutes between the breath tests. Sometimes, the police become careless and they overlook this requirement. This is a great defense, and it does occur in some cases.

12. Attack the credibility of the police.

13. The State failed to provide an after-certificate.

The prosecutor must provide an after-certificate that proves that the alcotest is in proper working condition after the time of the DWI driver’s arrest.

14. The paperwork is all messed up.

The police must prepare “books of paperwork” in order to document their DWI case. In many cases, the police do a terrible job in documenting their DWI case. Remember, most police hate paperwork, and in many instances the police officer won’t arrest a drunk driver so that they can avoid preparing all of the paperwork. If the paperwork is sloppy, then this can be used to impeach the police officer(s), and to create holes in the State’s case. Always be aware for errors in the labeling of the breath samples, and of the alcotest machines. Also be aware for discrepancies of the times marked in the police reports. These minor points can be used to try to develop weak links in the State’s case.

15. The police fail to conduct the field sobriety tests correctly.

The police must be trained to correctly conduct field sobriety tests. In one of my cases, the police did not even have the proper training and education to conduct field sobriety tests. My client beat the DWI case on this defense.

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Finding a lawyer who is experienced in handling DWI cases should be your top priority. DWI laws are constantly changing and the consequences of a conviction are becoming harsher and harsher, not to mention the negative impact of being labeled a criminal for the rest of your life.

If you have never been through this before, you probably don’t know who to call, and it seems lawyers are a dime a dozen. If you have been through this before and are searching for a different lawyer, you know just how important it is to hire an experienced DWI lawyer. You need to understand just because someone is a lawyer does not mean they have the necessary DWI experience to defend you and your DWI case.

Furthermore, not knowing what to look for in a DWI defense attorney makes the challenge of finding the right lawyer even more difficult. It is extremely important to find an experienced, competent DWI defense lawyer who knows how to investigate your case for factual and legal defenses, visit the scene with a camera for potential trial exhibits, interview witnesses, suppress evidence, compel discovery of offense reports and breath test maintenance records, negotiate for a dismissal or reduction in charges, obtain expert witnesses for trial, attempt to save your driving privileges, and who knows how to win the “difficult” case. In essence, you need a lawyer who will fight for you and leave no stone unturned in defending you. Remember, a conviction on your record will be there forever!

Contrary to popular belief, local bar association referral services are not necessarily a good source of information since they do not screen for qualifications. You are simply given the next name on the list. Likewise, any lawyer can take out an ad in the Yellow Pages, regardless of experience or ability.

You should attempt to retain a lawyer who devotes the majority of their practice to defending DWI cases. No lawyer can give you a guarantee on the outcome of your case (if one does, beware!); however, retaining a lawyer who concentrates on DWI defense will maximize your chances of being found Not Guilty.

If you do not have a sense of comfort and confidence after meeting with a lawyer about your case, you should continue to look.

After meeting with the lawyer, the following should be evident:

* The lawyer has extensive experience in litigating and trying DWI cases;
* The lawyer has a reputation for going to trial (not for pleading clients guilty);
* The lawyer has won difficult cases (they are not all talk);
* You feel comfortable in the manner in which the lawyer communicated with you (If you are not comfortable, do you think the jury would feel comfortable?);
* The lawyer listened to you (or did they do all the talking?);
* The lawyer was genuinely interested in you and your case;
* The financial agreement was clearly defined; and
* You have a strong sense of confidence in their ability to professionally and competently handle your case!

Another very important point to emphasize is to not overpay when you choose a lawyer. There are some DWI cases that just can’t be won. It makes no sense to a person to spend thousands of dollars on a DWI defense, when your chances to win are very low.

Also don’t be misled into believing that your lawyer is better if you pay him or her a larger retainer. This is a big myth! In New Jersey there is no right to a jury trial in a DWI case. Therefore, a DWI defendant can only win so many cases. If New Jersey gave defendants a right to a jury trial in a DWI case, then I am convinced that there would be a much higher rate of not guilty verdicts in DWI. However, New Jersey undoubtedly would increase the penalties for DWI if a right to a jury trial ever came into existence.

Given these circumstances, there really is no Johnny Cochran of DWI lawyers. Be smart when you choose your DWI lawyer. Don’t be talked into paying a $5,000 retainer, when your chances to prevail are low to begin with. There are many very qualified lawyers in New Jersey who will represent DWI defendants for an affordable fee.

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New Jersey DWI/DUI Penalties

Driving while intoxicated (DWI) and driving under the influence of CDS constitute very serious offenses in New Jersey. The consequences of driving while intoxicated, as well as driving under the influence of CDS include personal injuries, property damage, and even death. As a result, New Jersey has some of the strictest laws in the United States of those convicted of DWI/DUI charges; the severe penalties are intended to deter drivers from getting behind the wheel after drinking or while under the influence of controlled dangerous substances.

First Offense – DWI

In most states, driving while intoxicated is a crime. In New Jersey there are neither misdemeanors nor felonies. New Jersey takes the position that an offense for driving while intoxicated (as well as DUI) is a “quasi-criminal” offense, which means that there is a potential for incarceration, which becomes mandatory on the third or subsequent offense for a DWI, under most circumstances. In New Jersey, DWIs are segregated by tiers. If an individual’s blood alcohol is at least .08%, but less then .10% then there is a presumption of intoxication at that level of reading resulting in, upon conviction or a guilty plea:

• A license suspension of 3 months
• A fine of $250 to $400
• A fee of $230 to the Intoxicated Driver Resource Center (IDRC)
• A fine of $100 payable to the Drunk Driving Fund
• A fine of $100 to the Alcohol Education and Rehabilitation Fund (AERF)
• A surcharge of $1,000/year for 3 years imposed by the NJMVC, which is a law applicable to all out of state drivers
• A $75 fee to the Neighborhood Services Fund
• A prison term of up to 30 days, which can be suspended
• A mandatory 12 to 48 hours on 2 consecutive days in an IDRC program
• Additional surcharge of $100.00
• Possible installation of an alcohol interlock device for 6 months to 1 year

The balance of this article can be found here.

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Choosing the Right DWI Lawyer

by Theodore Sliwinski, Esq.

Finding a lawyer who is experienced in handling DWI’s should be your top priority. DWI laws are constantly changing and the consequences of a conviction are becoming harsher and harsher, not to mention the negative impact of being labeled a criminal for the rest of your life.

If you have never been through this before, you probably don’t know who to call, and it seems lawyers are a dime a dozen. If you have been through this before and are searching for a different lawyer, you know just how important it is to hire an experienced DWI lawyer. You need to understand just because someone is a lawyer does not mean they have the necessary DWI experience to defend you and your DWI case.

Click here to read the balance of this article. Click here if you need a New Jersey DWI Lawyer or visit www.New-Jersey-Lawyers.com for NJ Lawyers for all of your other NJ legal needs. You can also find for more listings of NJ DWI lawyers by going to NJLawFirms.net