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Questions Answered by James A. Abate
3 Answers | Asked in DUI / DWI for New Jersey on
Q: Arrested for DUI

I was at a bar for a couple of hours, enough to get drunk. My car was double parked and when I get out I went to my car to stay warm while I waited for my girl to pick me up, meanwhile someone had called the cops saying I was driving drunk , but when the cops came I was sleeping .. they gave me DUI... Read more »

James A. Abate
James A. Abate answered on May 5, 2018

I recently took a similar case to trial and received a not guilty verdict. The police will claim that while you had not yet operated the vehicle, that you intended to do so. It is a question of fact. I am sorry that you do not have confidence in your attorney. Many people hire a lawyer based on... Read more »

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3 Answers | Asked in Criminal Law for New Jersey on
Q: What happens at a detention hearing ?
James A. Abate
James A. Abate answered on Apr 17, 2018

A defendant is held up to 48 hours while pre trial services evaluates its recommendations. At the hearing the recommendations are made and the judge will decide whether release conditions should be issued unless the prosecutor files a motion to seek remand. If so, a few days later their will be a... Read more »

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4 Answers | Asked in Criminal Law for New Jersey on
Q: I have a FRO by default and wanted to file a motion to vacate and then get my weapon that was seized back.

What is the best strategy to do this? Should I file a motion on my own or hire a lawyer? These fees to retain range from 1500-10000.. Which is very high for an order entered by default. What is best solution?

James A. Abate
James A. Abate answered on Apr 14, 2018

Mr. Boyer and Mr. Aalsberg have given you good advice. It may not be intentional. But your question indicates that you do not understand the seriousness of a FRO or the difficulty you are going to have getting it vacated. Spend for the best lawyer you can afford. The lawyer who quoted $1500 has... Read more »

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2 Answers | Asked in Criminal Law and Domestic Violence for New Jersey on
Q: If you’re falsley accuse you of having a tazer abd they didn’t find anything will the grand jury indict or convict you?

I just left out of court and they told me the next court date the grand jury had to decide if I’m going to get indicted & convicted. My son father made a false complaint on me saying I came to his home 12-13-17 with a tazer and which I didn’t and he told the prosecutor that he wanted to dismiss... Read more »

James A. Abate
James A. Abate answered on Apr 13, 2018

Impossible to predict what a grand jury will do. You should have a lawyer.

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2 Answers | Asked in Family Law, Domestic Violence and Criminal Law for New Jersey on
Q: I was arrested for allegedly threating to burn my ex's vehicle as well as cursing at her via text.

I never threatened her. I never said anything about her vehicle nor did I say anything relatively close to causing anyone harm. I did curse at her and call her a bad mother for going against the court ordered visitation that I had to see my son. Is this enough to have gotten me arrested? I now... Read more »

James A. Abate
James A. Abate answered on Apr 13, 2018

Three separate issues here. The first is the criminal charge and the criminal record. We do not know the evidence at this point. But if you did not text these statements, then it may just be precautionary by law enforcement. A good barometer is whether you were charged on a warrant (WENT TO... Read more »

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2 Answers | Asked in Criminal Law for New Jersey on
Q: Can you file an expungement order for offenses/violations that occured on separate occasions?
James A. Abate
James A. Abate answered on Mar 30, 2018

It would be best to have a formal consultation with a lawyer. Otherwise, the answer is maybe.

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2 Answers | Asked in Municipal Law and Criminal Law for New Jersey on
Q: Is a municipal ordinance for disorderly conduct considered a disorderly persons offense?
James A. Abate
James A. Abate answered on Mar 30, 2018

An ordinance is an ordinance. So disorderly person ordinance is an ordinance.

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2 Answers | Asked in DUI / DWI for New Jersey on
Q: Is the NJ step down law still in effect for DUI? Public defender told my brother it no longer exists.

He's charged with DUI, has previous one from 20 years ago. Online research tells me it counts as 1st offense since it's been more than 10 years because of the step down law. His public defender said that's not true anymore. I read the 2016 revised statute and it's still in there. Are there newer... Read more »

James A. Abate
James A. Abate answered on Mar 30, 2018

Step down would apply but does not help in this case. A second DWI makes him ineligible to hold a CDL for life. It does not matter if he was driving a personal vehicle. You need to fight this case as if his life depended on it, because he will never be able to drive a CDL ever again. Touch... Read more »

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2 Answers | Asked in Criminal Law for New Jersey on
Q: can i obtain a restraining order against my abuser if the innocent happened 6 years ago? also can i press charges?
James A. Abate
James A. Abate answered on Jan 18, 2018

It depends. Why did you wait 6 years? The second prong under State v. Silver is the urgent need to be protected. If it took so long to seek protection or contact the police that would indicate there is not an urgent need to be protected. If something new has occurred then there could be an... Read more »

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2 Answers | Asked in DUI / DWI and Family Law for New Jersey on
Q: What rights do I have in NJ as residentialparent when ex husband received a DUI, 2nd offense in four years?

My ex husband was arrested for a DUI yesterday. It involved a minor motor vehicle accident and he had his son in the car. We have one daughter together from when we were married, age 8. She was not with him at the time. He has numerous charges for which he has court dates related to this DUI... Read more »

James A. Abate
James A. Abate answered on Jan 12, 2018

This depends on the wording of your MSA. You can seek to alter the considerations of custody.

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2 Answers | Asked in Criminal Law, Employment Law and Civil Rights for New Jersey on
Q: Is there law suit for a person posting a police report on facebook? Threatening messages were made in the comments area.

I am a Crisis Intervention Teacher( Dean of discipline) at a New Jersey High School. A few months ago a shots were fired outside of the school. Students reported to me who the person doing the shooting was and a police report was made at the school with this information. Today I find out that the... Read more »

James A. Abate
James A. Abate answered on Dec 21, 2017

If the report was posted with the intent to Harass, possibly. But just the act of publishing a police report does not provide a cause of action.

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1 Answer | Asked in Child Custody and Domestic Violence for New Jersey on
Q: Is someone’s mental health or lack there of reason to get a restraining order against them? There’s a child involved

The mother of my son recently attempted suicide... I don’t think she’s taking her mental health treatment seriously, and she allows her mother to drink and watch our son while she drinks

James A. Abate
James A. Abate answered on Dec 21, 2017

Unless something has been done to you, a TRO is not appropriate. Involving Child Prevention and Permanency should be called if you suspect neglect or danger to a child.

2 Answers | Asked in DUI / DWI for New Jersey on
Q: Are the penalties worse if you get a DUI with kids in the car?
James A. Abate
James A. Abate answered on Dec 20, 2017

§ 2C:24-4. Endangering the Welfare of a Child

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make...
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2 Answers | Asked in Criminal Law for New Jersey on
Q: What are some results of a police officer lying on an affidavit This pertains to federal law
James A. Abate
James A. Abate answered on Dec 17, 2017

18 U.S. Code § 242 - Deprivation of rights under color of law

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3 Answers | Asked in Criminal Law for New Jersey on
Q: The same bus driver constantly refuses to stop and let people waiting in so i hit the door and it cracked by accident

Is this an offense. It is the same bus driver he never stops and lets people in even if we signal for him to stop. The bus has room for people hoever he still does not stop and let people in. I hit the door to let the bus driver know that i was mad i did not mean to break since i did not hit it... Read more »

James A. Abate
James A. Abate answered on Nov 27, 2017

That is criminal mischief.

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3 Answers | Asked in Criminal Law, Federal Crimes and Employment Law for New Jersey on
Q: 2C:52-11B(1) charges amended question. PLEASE ANSWER IF YOU CAN. THANK YOU!

I was charged with 2C:52-11B (1) I did not steal. I went shopping with two ex-friends, they went one direction I went the other. We met back at my car when the police ran up. Charging all 3 of us with shoplifting. My charge was amended to violation of municipal ordinance 271-1a Loitering. I am... Read more »

James A. Abate
James A. Abate answered on Nov 18, 2017

I thoroughly respect the opinion of Mr. Cheser. I would add that you should bring the specifics of your case to a lawyer and have them review the question and your record.

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3 Answers | Asked in Criminal Law, Family Law and Traffic Tickets for New Jersey on
Q: Harassment Charge. 2c:33-4

I filed for a restraining order that was accepted and policed charge my ex with 2c:33-4. In return my ex three days later went to law enforcement and had me charged with 2c:33-4 as well. I was never arrested for this allegation or contacted by police. I had no idea this charge was on my record till... Read more »

James A. Abate
James A. Abate answered on Nov 15, 2017

You would need to petition the Superior Court to expunge your arrest record. While you say "i was never arrested", the appearance of a charge is synonymous with an arrest.

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2 Answers | Asked in Criminal Law, Family Law, Personal Injury and Traffic Tickets for New Jersey on
Q: 2c:33-4 Harassment.

In 2009, I filed for a restraining order that was accepted by police against my ex girlfriend. She was charged with harassment as well. She went and reported harassment against myself. I went to the police station today and wanted to see if anything was on my record. It says I was charged with... Read more »

James A. Abate
James A. Abate answered on Nov 15, 2017

First you are confusing a charge with a conviction. If you were charged the record would still remain even if the charges were dismissed. Second you are confusing the criminal and TRO charges. There are different systems. The criminal case history is showing you were charged with a criminal... Read more »

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2 Answers | Asked in Criminal Law for New Jersey on
Q: what is the difference betweek possession of a weapon for an unlawful purpose and unlawful possession of a weapon?
James A. Abate
James A. Abate answered on Nov 8, 2017

Unlawful possession simply means you do not have the right to posses the weapon. Illegal gun. Possession with weapon with unlawful purpose means that the weapon (not limited to guns) with a specific intent to perform an unlawful act.

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2 Answers | Asked in Criminal Law, Communications Law and Federal Crimes for New Jersey on
Q: In New Jersey, what are the teen sexting laws? If I am 16 and my girlfriend is 18, can we send private sexual photos?

I thought about doing stuff by sharing private sexual photos with her and talking to her about sending them too, but I want to know what is legal first. If she is an adult sending them to me is that legal?

James A. Abate
James A. Abate answered on Nov 8, 2017

You both run the risk of being charged with possession of child pornography. In addition, it is a very bad idea to share nude or intimate pictures of yourself with anyone.

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