Someone is stopped by police upon suspicion of drunk driving. The police want him/her to take a breath test. The driver refuses to consent to take a breathalyzer test, so the police give the driver a standard warning that indicates the judge has discretion whether to impose penalties based on that refusal.

This is not so. A driver faces mandatory minimum penalties for refusing to take the breath test, even if he has not been drinking! You just cannot refuse without penalty. A refuser actually faces a mandatory license suspension, fines, ignition locking devices and drivers’ school. Although the standard warning states the maximum repercussions for refusal, it does not state the minimum. If the minimum was stated, that the driver’s license must be suspended for at least seven months, etc. the driver may change his/her mind and consent to the test after all. By not taking the test the driver is guilty.

This very argument is being urged by the New Jersey Bar Association, who is filing an Amicus Curiae (Friend of the Court) brief on behalf of all drivers. This case is pending before the New Jersey Supreme Court in State v. O’Driscoll, A-7-12. The Bar Association is arguing that the current warnings should be changed to require the police to list the mandatory minimum penalties along with the maximum penalties if the driver continues his/her refusal to take the breath test. They are proposing that the warnings at present are just inadequate. I believe that the Supreme Court should accept this argument in the interest of true Justice for All.
-JDG

 
 
Very recently, two Bergen County attorneys were charged with ethics violations by having their female paralegal become Facebook friends with the Plaintiff who was suing their client. They found out personal facts not available to the general public and used it to discredit him in discovery.

Was this good investigation or unethical behavior?

This issue reminds me a of a case tried by my deceased Partner, Robert J. Carluccio way back in the sixties called Massiah v. United States 377US201 (1964), which was a precursor case to the famous "Miranda" rights case, Miranda v. Arizona 384US436 (1966). Bob took Massiah "in forma pauperis" (for free) all the way to the United States Supreme Court. In this case, Federal Agents planted a bugged snitch to befriend Massiah while he was awaiting trial for drug charges in order to get him to make incriminating statements and adminssions while they listened in. The Court held that this behavior violated his Sixth Amendment constitutional right to counsel, as they "interrogated" him without counsel present.

In both cases, the litigant was "tricked" by his adversary who used a third person to get them to reveal things about themselves without counsel being presnt to later be used against them. The trust is that to preserve the functional integrity of our adversarial system, it is vital that, once proceedings have been intiiated, attempts to circumvent the proctions afforded by counsel cannot be tolerated.

The Bergen County attorneys are presently fighting the ethics charges claiming that they did not direct the paralegal to facebook friend the plaintiff, they were unfamiliar with facebook privacy settings, and that they did not intend to use a ruse or subterfuse.

Use of social media will raise new ethics questions and problems which we never had to deal with before. It will be very interesting to see how this issue will develop from a legal perspective. - JDG
 

    Author

    Joseph D. Greco Jr. is the Managing Partner at the law firm of Carluccio, Greco & Marchese with over twenty five years of legal experience in Hudson County, New Jersey.

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