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Questions Answered by Michael A. Smolensky
3 Answers | Asked in Criminal Law for New Jersey on
Q: Why do I have a post indicted arraignment when I haven’t been indicted yet ?

October 2022 I was involved in a car accident. Hit 3 juveniles. Charges with 3 account of attempted murder and three accounts of agg assault. I was released on house arrest. But I haven’t been to court since being released. My court date if October 2023. I wasn’t indicted yet.

Michael A. Smolensky
Michael A. Smolensky
answered on Sep 23, 2023

Mistakes can certainly happen. Ordinarily, however, the Superior Court does not schedule the Arraignment until an indictment has been filed. Presumably you were either appointed an attorney through the Office of the Public Defender or you have retained private counsel. Therefore, either of them... View More

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1 Answer | Asked in Criminal Law and Civil Rights for New Jersey on
Q: If I am riding my motorcycle and someone tries to take my keys by force, am I allowed to use force to defend myself?

This is simply out of curiosity based on a video I saw today.

Michael A. Smolensky
Michael A. Smolensky
answered on Jul 27, 2023

New Jersey law recognizes defense of oneself as justification for conduct that would otherwise be considered criminal. One thing that many people seemingly fail to realize, however, is self-defense is not self-executing. This means that a person can be charged, for example, with assault even if he... View More

2 Answers | Asked in DUI / DWI for New Jersey on
Q: What does the word operate mean in statue 39:4-50?

Someone advised me that the NJ AG made it clear that “operate” means in forward motion. Which from my understanding would exclude parked vehicles and vehicles running but not in motion.

Michael A. Smolensky
Michael A. Smolensky
answered on Jul 25, 2023

Although this offense is referred to as "Driving While Intoxicated," the case law on the DWI statute's "operation" element is much broader than the common understanding of the word "driving." This charge is not categorically indefensible, but it is considerable... View More

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1 Answer | Asked in Traffic Tickets for New Jersey on
Q: How do you know if a ticket has points? Also what do you do if the officer doesn’t tell you the ticket has points.
Michael A. Smolensky
Michael A. Smolensky
answered on Jul 5, 2023

There are two point systems. One system applies to the Motor Vehicle Commission, and the other applies to Insurance Eligibility. Accumulating points with the Motor Vehicle Commission can result in surcharges and license suspensions. Additionally, the look back period for the MVC is three years. As... View More

1 Answer | Asked in Traffic Tickets for New Jersey on
Q: Will I receive a speeding ticket in the mail from a state trooper?

A state trooper followed me off the highway while I was speeding. He followed me for like 30 seconds & pulled off. Never pulled me over. My thing is if I was considerably speeding, wouldn’t he have pulled me over then and there?

Michael A. Smolensky
Michael A. Smolensky
answered on Jun 5, 2023

This is a good question. One might expect a reasonable trooper to conduct a stop, request credentials, verify the person’s identity, and decide whether to issue any tickets. But police have been known to mail the tickets to the person believed to be driving. So it is possible that tickets will be... View More

3 Answers | Asked in Traffic Tickets for New Jersey on
Q: Should I attend the virtual hearing myself or hire a lawyer?

The ticket was careless driving. I hit a railing and my friend was injured. Now I am contacting my insurance company. I don't know what this hearing is about. If I say something wrong at the hearing, will I take all the responsibility for this accident and then the insurance will not pay the... View More

Michael A. Smolensky
Michael A. Smolensky
answered on Feb 17, 2023

Calling an attorney to discuss your concerns is probably a good way to spend some time. It can help address concerns about an experience that is unfamiliar and which will be new. But I would hasten to add before making your choice of attorney, you ought to give this matter careful thought. The... View More

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2 Answers | Asked in Traffic Tickets for New Jersey on
Q: Is it ok to ask a prosecutor to get my tickets move to another district if I feel the town may be racist?

Officer saw my good record and pleasantly came over and gave me 3 tickets for speeding. Unlawful operation and not obeying. Signs . He basically said I was speeding 3 different ways. After he complimented me for having no points

Michael A. Smolensky
Michael A. Smolensky
answered on Jan 3, 2023

The judiciary takes racism and systemic racism seriously. Based on the description offered here, the officer complimented you, and otherwise acted pleasantly toward you. The issuance of three tickets will probably not persuade the municipal prosecutor of unconstitutional racial discrimination. To... View More

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2 Answers | Asked in Traffic Tickets and Car Accidents for New Jersey on
Q: warning for offense 39:4-32 pedestrian crossing roadway signals

if you receive a warning in new jersey for failing to stop for a pedestrian in a marked crosswalk will that increase your auto insurance rates. Not a ticket but a warning. I have a camera in my car and the video shows nothing except a cop waving to turn left. Can I contest this ?

Michael A. Smolensky
Michael A. Smolensky
answered on Nov 17, 2022

A ticket filed in the municipal court is required before direct and collateral consequences become an issue. If a police officer gives only a warning, then the court, motor vehicle commission, and insurance company should not find out about the encounter.

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2 Answers | Asked in Traffic Tickets for New Jersey on
Q: I received a ticket for reckless driving after I was caught speeding which I have to go to court for.

Should I get a lawyer? This is my first offense and I’m extremely lost and unsure it was the middle of the night no cars were on the road and I never wish to harm others this is the first time I got fines let alone pulled over and got a ticket.

Michael A. Smolensky
Michael A. Smolensky
answered on Nov 14, 2022

In addition to the penalties described by my colleague, a conviction for Reckless Driving involves serious collateral consequences. These include 5 insurance eligibility points, a 10-year ban on vanity plates, a lifetime ban on courtesy plates, and a 3-year prohibition against driving for a company... View More

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2 Answers | Asked in Traffic Tickets for New Jersey on
Q: If a police officer marks down the speed limit on the ticket then can I fight the speeding ticket since he can't prove?

I was regrettably doing 88mph in a 35mph school zone. Honest to God I didn't know I was in a school zone I thought the speed limit was 50 either way I was late for work and speeding. So the officer told me I was doing 88mph then comes to give me the ticket and I realized he marked it down and... View More

Michael A. Smolensky
Michael A. Smolensky
answered on Sep 29, 2022

There is also the possibility that the prosecutor will have the officer’s handwritten notes indicating that the officer already gave you a break when he issued the speeding ticket to you. If you are concerned, however, then meeting an attorney for a consultation might be something to consider... View More

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2 Answers | Asked in Traffic Tickets for New Jersey on
Q: Is there a legal distinction between the terms “roadway” and “highway?” Are they interchangeable?

For example if a section in this law refers only to “highways” does that law apply to all roadways? In regards to a pedestrian moving law.

Michael A. Smolensky
Michael A. Smolensky
answered on Sep 14, 2022

Good question! Interpreting a statute can include, but is not limited to, plain text, context with respect to the the text of other statutes, statutory structure, extrinsic evidence of legislative intent, canons of construction, and case law. This research aids in the determination of the meaning... View More

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1 Answer | Asked in Criminal Law, Family Law and Estate Planning for New Jersey on
Q: How does an inmate get a general power of attorney signed over

The form already filled out. Can I just get two witnesses inside to sign or how would I get something notarized while incarcerated

Michael A. Smolensky
Michael A. Smolensky
answered on Aug 5, 2022

Logistics will require coordination with prison/jail security. Generally speaking if one is serious about the execution of a power of attorney or any other estate planning documents, then one ought to seriously retain an attorney to draft and oversee the execution of the instruments.

1 Answer | Asked in DUI / DWI for New Jersey on
Q: Repost w/add’l info: Could a DUI which has been dismissed by the prosecutor be re-charged?

.

Michael A. Smolensky
Michael A. Smolensky
answered on Aug 4, 2022

Attorney General Guidelines for Municipal Prosecutors limit their discretion in plea negotiations on DWI charges. It is unlikely that the Municipal Prosecutor dismissed all charges but the reckless driving without very good reason.

2 Answers | Asked in Traffic Tickets for New Jersey on
Q: Do I still need to appear in court even though the ticket contradicts what the officer said?

I got pulled over for two traffic violations in NJ. The cop told me I needed to appear in online court for one, however both tickets say that I can plead guilty and pay online without going to court. When I payed online, both online tickets then said that "the matter has been resolved through... View More

Michael A. Smolensky
Michael A. Smolensky
answered on Jul 28, 2022

Ordinarily a defense attorney would advise against paying a ticket online. This is because paying the ticket has the legal effect of pleading guilty. And the monetary fine is not the only penalty one faces. Depending on the charge, one might also face license points with the Motor Vehicle... View More

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1 Answer | Asked in Traffic Tickets for New Jersey on
Q: What distance can you park from a private driveway? & Parking the front bumper of a car touching the rear bumper of a 2d

Can you park in front a private mail box All the above in Twp.of Maple Shade NJ.

Michael A. Smolensky
Michael A. Smolensky
answered on Jul 22, 2022

New Jersey law generally prohibits parking or standing a vehicle "in front of" a private driveway. Among other exceptions, however, a municipality may enact an ordinance to permit parking in front of private driveways. Beyond this, it seems that contacting a private attorney to inquire... View More

1 Answer | Asked in Traffic Tickets for New Jersey on
Q: Do I get points for a 39:4-138M
Michael A. Smolensky
Michael A. Smolensky
answered on Jul 8, 2022

The New Jersey Motor Vehicle Commision administers one of the point systems. Private insurance carriers administer the other system. Though subject to change, at present neither system imposes points for this offense.

2 Answers | Asked in Criminal Law for New Jersey on
Q: Can a 14 1/2 year old who gropes 12 year old multiple times against his will be held liable under this statute?

Specifically, can the 14 1/2 year old be convicted under the child endangerment stature?

Michael A. Smolensky
Michael A. Smolensky
answered on Jun 19, 2022

To answer this question, more information is required. An attorney, upon entering his or her appearance in court on a client's behalf, can demand and obtain the discovery. The answers to questions like this depend on the discovery provided by the State. This is preferable to speculating about... View More

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2 Answers | Asked in Criminal Law and Traffic Tickets for New Jersey on
Q: Charged with 39:3- 29A for the third time. What am i looking at legally
Michael A. Smolensky
Michael A. Smolensky
answered on Jun 12, 2022

A person charged under N.J.S.A. 39:3-29a faces fines and costs totaling $190, and possibly up to $440 if the person is a driver or operator of an omnibus. It is a good idea to speak on the telephone to a lawyer to review all the details.

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2 Answers | Asked in Traffic Tickets for New Jersey on
Q: Just curious, about hoe much is it to have a lawyer for a cell phone ticket in NJ a round about number …
Michael A. Smolensky
Michael A. Smolensky
answered on Jun 7, 2022

It depends on the attorney. Perhaps calling various attorneys on the telephone to inquire will help develop the desired information. Once this information has been acquired, then the individual can conduct a cost-benefit analysis to determine whether the benefit of retaining counsel outweighs the... View More

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3 Answers | Asked in Traffic Tickets for New Jersey on
Q: Cop gave me cell phone ticket but it was written in my spouse name(registered in spouse name) gave my license though

Car registered-spouse

Insured under me

Gave my license

Ticket written to my spouse who was not with me he put all of her information on ticket what do i do he did have body cam going

Michael A. Smolensky
Michael A. Smolensky
answered on Jun 1, 2022

If I am understanding this correctly, the officer wrote out the ticket to a third party. Here, the third party is the spouse of the vehicle operator. The ticket is a summons for that third party to appear in court. The third party can demand discovery and raise defenses (i.e. it wasn't me) to... View More

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