New Jersey DWI Defense

Emotional Roots Of Alcohol Abuse

2008-09-09T07:13:00.000-07:00

After years of defending people charged with drunk-driving, I have seen human suffering embedded in hearts and souls that make many people feel overwhelmed, ashamed, alone, and depressed. I have counseled clients weighed down by problems with complex and deeply-embedded layers that are seemingly impenetrable. I see people who feel like nobody could possibly understand their pain – people who feel ashamed, embarrassed, depressed, alone, and unworthy.

I have represented and counseled rape victims, victims of childhood abuse, adults who grew up with abusive parents, adults in abusive or poorly-rooted marriages, adults who inexplicably lost parents or loved ones, and adults who had a parent or loved one abandon them. Their depression, bitterness, anxiety, and low self-esteem are real and intense. That human suffering – the desire to get out of pain, is at the root of the alcohol abuse.

Chris Prentiss, the founder of “Passages”, a premier addiction treatment center, says that “[a]lcohol and drugs are not the problems; they are what people are using to help themselves cope with the problems.” (“The Alcoholism and Addiction Cure”, Chris Prentiss).

According to Prentiss, “[a]lcohol is just a quick and easy way to change ordinary, everyday reality from unbearable to bearable. All it takes is a short trip to the liquor store and a few drinks. People who are dependent are merely using alcohol as a crutch to get through the day. Yet doctors and scientists are still treating "alcoholism" as if it is the problem, when it has nothing at all to do with the problem. They might as well be studying "scratchism" for people who have a chronic itch.” (“The Alcoholism and Addiction Cure”, Chris Prentiss).

According to Dr. Keith Ablow, all addictions have a “common denominator … addicts are turning away from underlying emotional pain, always rooted in their life stories.” (New York Post, August 19, 2008).

According to Dr. Ablow, “[a]ll too often … attempts to cure addictions neglect to acknowledge their psychological cause - the why that explains a person's determination to use one thing or another to try to run from unconscious conflicts, grief or low self-esteem. And without getting to the why, cures remain elusive.” (New York Post, August 19, 2008).

Dr. Adlow identifies what he calls “three truths about addiction (New York Post, August 19, 2008):

First, “[a]ddiction to anything - food or alcohol or an illicit drug or sex - is a symptom of an underlying psychological problem, not the whole of the problem. Insist on treatment that addresses the motivation for your behavior, not just the behavior itself.”

Second, “[t]he emotional fuel for addictions is more easily discovered than most people believe. You don't have to spend years in therapy to find the psychological key that unlocks real healing. But you do have to make that exploration a priority.”

Third, “[a]ddiction often masks underlying major depression or an anxiety disorder or attention-deficit disorder. Treating those conditions can have a very significant impact on your long-term well-being.”

In the book “Terry: My Daughter's Life-and-Death Struggle with Alcoholism”, former Senator George McGovern talks candidly and heart-wrenchingly about his daughter’s struggle with alcoholism. His daughter, Terry, died at age 31 when she froze to death after she passed out drunk, outside of a bar.

The book is very moving. One thing that was telling for me as I read the book was that Terry McGovern’s alcoholism morphed. Her abuse of and reliance on alcohol, caused her more problems and pain. That pain caused her to turn to alcohol to numb the pain – the pain caused by her alcohol abuse. It was a proverbial “vicious cycle.” I see this often with clients who are suffering from depression and anxiety. Unfortunately, these clients who are already in pain have added worry and depression after getting charged with a dwi.

I do not have all of the answers to this complex human issue. I do know however, that human suffering is the root cause of many dwi offenses. People who judge dwi defendants harshly and see only the offense, are myopic in their thinking. Many dwi defendants are merely people who have deeply-embedded pain that they are trying to medicate. Have comments? - Leave your thoughts by following the comments link below.

"Testilying" - NJ Police Officer Charged With Filing False Report and Lying Under Oath

2008-06-21T05:14:00.000-07:00

Frank Pagano, a 43 year old police sergeant in Pohatcong New Jersey, was indicted on charges that he filed a false police report and lied under oath. www.nj.gov/oag/newsreleases08/pr20080619a.html

The charges stem from Pagano’s stop of a car and subsequent search of the car. The charges allege that Pagano’s written report of the incident was false, and that he lied under oath to the grand jury and in the Superior Court during the defense motion challenging the constitutionality of the search. The charges allege that the cop’s testimony and report were in stark contrast to a police videotape of the incident. The cop’s testimony was alleged to have been tailored to justify his search of the defendant’s car.

I respect law enforcement. I have a wife and two kids, and the police protect my family. I am comforted knowing that police are on the job and buffering me and my family from crime and criminal elements.

I am troubled when a police officer twists the truth, embellishes, and outright lies to gain a conviction. There is a well-entrenched term used in the system to describe such conduct – “Testilying.” According to Wikipedia (wikipedia.org) “[t]estilying is police slang for the practice of giving false testimony against a defendant in a criminal trial, typically for the purpose of "making a stronger case" against someone they believe to be guilty, although it may also be for the purpose of framing an innocent defendant.” http://en.wikipedia.org/wiki/Testilying

Famed defense lawyer Alan Dershowitz accurately observed that “For anyone who has practiced criminal law … the disclosures about rampant police perjury cannot possibly come as a surprise. "Testilying" — as the police call it—has long been an open secret among prosecutors, defense lawyers, and judges.” http://en.wikipedia.org/wiki/Testilying

Testilying occurs in Municipal Courts. The local cozy nature of the system creates a comfortable environment for the handful of cops who are “testiliars.” Cops know that the local Judge is highly unlikely to rule that he is not credible. The Judge is appointed by the local council and Mayor. If the Judge finds a cop not credible, the cop will go cry to his Sergeant, the Sergeant will tell the Captain, the Captain will tell the Chief, and the Chief will go to the Mayor. What do you think will happen next? The Mayor will reach out to the Judge and well … you fill in the rest.

The independence of the Judiciary at the Municipal Court level is often illusory. Judges have a tough task because the cozy political environment tends to emasculate their independence.

Rats thrive in dirty environments. My wife and I were walking on the street in New York late one evening. Garbage was piled up on the street and the NYC rats were just loving it. Similarly, the political culture in Municipal Courts creates a perfect environment for testilying to occur and thrive. The cops are often protected by a bunch of “big daddy's” who will always step in and clear the way for them.

I respect the police and I support the police. I am not suggesting that all cops lie. Many police officers enter law enforcement as a calling – because they have a gifting and hearts to help others. Police officers risk their life and limb every day to protect. They deserve the utmost respect.

It is despicable and frustrating for me to witness (as I have over the years) police officers who embellish and lie to convict. The reaction from my clients is often the same, and to the effect that “OK, I know I am wrong, but why do they have to do that (lie).” The Municipal Court culture creates an environment of “no consequences” for testilying.

We are all imperfect. The great King David said, “I know my transgressions … [s]urely I was sinful at birth, sinful from the time my mother conceived me.” Psalm 51:3-5. King David’s son Solomon later asked rhetorically, “[w]ho can say, I have kept my heart pure; I am clean and without sin"? Proverbs 20:9. I have to believe that at some point and at some level, everyone will pay a price and will have to give account.

State v. Chun - NJ Supreme Court Alcotest Ruling

2008-03-24T08:51:00.000-07:00

On March 17, 2008, the New Jersey Supreme Court (the highest New Jersey Court) decided the case of State v. Jane H. Chun. The Chun-Defendants challenged the reliability of the “Alcotest”, a breath-testing machine that replaced the “Breathalyzer.” The New Jersey Supreme Court disagreed with the general defense thrust, and found that the technology is generally reliable. The Supreme Court relied in part, on the findings of Judge King, a retired Judge who was referred to as a "Special Master." The Court did however, impose a number of procedural safeguards.

I intentionally did not include my clients in the Chun litigation. My logic was this: a challenge to the general reliability of the machine would be unsuccessful, and the only benefit in the end would be to the State and not the defense. The benefit(s) to the State as I reasoned would be: 1. establishing the reliability of the machine, and 2. ironing out the machine quirks and defense issues. My reasoning was that the defense was better off operating in a state of ambiguity – in other words, the State needed the clarity, not the defense. I achieved great success in the Alcotest cases I intentionally kept at the lower court levels. I could have brought my clients into the fold of the Chun litigation, but believed that they would be better served by remaining in the lower courts. The success I had in Alcotest cases included an outright dismissal, suppression of Alcotest readings, and recently an acquittal after trial in a Union County Municipal Court.

The Chun litigation served to bolster the State’s use of the Alcotest, and clarified for the State, the defense challenges. My opinion is that the defense (i.e. the defendants) would have been in a better posture operating in a state of ambiguity because the burden of proof rests squarely on the State – the defense has no burden of proof.

This is not to say that there are no defenses to Alcotest cases. Through a careful reading of Chun, and a creative and bold application of the Court’s ruling, successful challenges are possible. I look forward to the challenges that lie ahead and remain committed to my representation of DWI defendants.

NJ DWI Laws Are Unfair & Counterproductive.

2008-02-28T08:06:00.000-08:00

Nearly every State allows for a work/conditional drivers’ licenses for people convicted of DWI, particularly for first-time offenders. New Jersey is one of only a few States that does not provide conditional licenses. The Judge must suspend (unconditionally) the license of anyone who is convicted of DWI for the prescribed statutory minimum period – (ninety-days to one year for a 1st offense, two-years for a 3rd, and ten-years for a 3rd). Further, there is a strict prohibition against plea-bargaining a DWI charge.

The strict and unforgiving DWI law(s) in New Jersey fail to serve the aim of deterrence and may hinder rehabilitation. Harsh penalties create havoc on lives that may already be in emotional turmoil that caused the drinking and driving in the first place. Innocent family members who are relying on the drivers are negatively affected. For many offenders, a DWI charge is a wake-up-call. The stress, shock, shame, and embarrassment of being arrested, handcuffed, and having to stand in front of a Judge is a sufficient deterrent for many offenders. For many, (particularly multiple offenders), there is some underlying psychological condition that is causing the drinking. In other words, many people facing a DWI charge are “self-medicating” with alcohol to get out of pain and/or to change their emotional state(s). I have represented people suffering from varied and real emotional trauma that underlie the DWI offense (e.g. rape and child-abuse victims, people who have suffered unexplained loss of loved ones, people who have been betrayed by spouses, etc.). Penalties that are excessively punitive do nothing to help these people. Rather, the harsh laws may very well exacerbate their underlying psychological distress.

There is a prohibition against plea-bargaining DWI cases. A plea bargain is an agreement between the prosecutor and defense whereby the defendant will plead guilty to a lesser offense. New Jersey lawmakers have, for reasons that defy logic and fair play, singled out DWI as an offense that cannot be plea-bargained. The thinking is that DWI is a serious offense – the often-used lightening-bolt language used is that DWI causes “carnage” on the roads. However, murderers, rapists, child-molesters, armed-robbers, and other sociopath offenders cause greater havoc to society. Why are their offenses not targeted like DWI? These defendants can plea-bargain and make deals, but DWI defendants cannot. I believe that the distinction and targeting is simply unfair.

The targeting of DWI offenses (by not allowing plea-bargains, and not allowing conditional licenses) defies equality and fundamental fairness. Harsh New Jersey DWI laws do little to make New Jersey a safer and better place to live. Rather, harsh and unforgiving DWI laws allow other more serious and cold-hearted offenders to get breaks creating an illogically unfair system of justice. New Jersey DWI laws fail to deter, they punish families, and they push people who are already in emotional pain into greater despair. New Jersey DWI Defense Lawyer Greggory M. Marootian, Esq.