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Questions Answered by Michael A. Smolensky
2 Answers | Asked in Criminal Law for New Jersey on
Q: Is it illegal in New Jersey to get 25 years for drug induced homicide? I’m asking because the law states the max is 20
Michael A. Smolensky
Michael A. Smolensky
answered on Jan 23, 2024

Under New Jersey law, Strict Liability Drug Induced Death is a first degree crime, which ordinarily carries up to 20 years New Jersey State Prison. But a defendant who is extended term eligible would face 20 years to life. Therefore, a sentence of 25 years would not necessarily be illegal.

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1 Answer | Asked in DUI / DWI for New Jersey on
Q: SWIM got a DUI after NJSP were dispatched for a med check and saw paraphanalia on his lap when asleep in wawa parkin lot

He was never read his rights, he was not given a field sobriety test, no breathalyzer, nor was he impaired at all. The paraphanalia and CDS charges were both dropped by superior court due to the good samaritan law. At the time he was living in his vehicle and was not driving. The attorney he hired... View More

Michael A. Smolensky
Michael A. Smolensky
answered on Oct 6, 2023

More information is required to know the totality of circumstances and to identify any defenses available to this person. A charge of DWI can be defensible, but the defenses turn on the facts of the individual cases. If this friend is unhappy with the legal advice provided by his present attorney,... View More

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 Criminal Law for New Jersey on
Q: Generally speaking. What will an expungement cost for a 20 year old Harassment charge I pled guilty too? Thanks
Michael A. Smolensky
Michael A. Smolensky
answered on Nov 28, 2023

This is an excellent question. And I t seems to me the answer will require calling and meeting various attorneys to find out the answer.

One might ask about each attorney’s experience with expungements because this will presumably weigh in one’s decision to retain the attorney....
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1 Answer | Asked in Traffic Tickets and Civil Rights for New Jersey on
Q: How can my husband keep being charged with a suspended license when he paid the restoration fees and surcharges?

My husband grew up in New Jersey and left when he was 16 . He never obtained a driver's license in this state, but had a non drivers ID His wallet was stolen when he was 15 that had is SSN card and a state non drivers id. Upon his father's death he came back to his childhood home.... View More

Michael A. Smolensky
Michael A. Smolensky
answered on Jul 21, 2023

This is an important question, and the explanation I would like to offer is somewhat difficult to write here is all the necessary details. I would mention, however, that when anyone is issued a ticket a New Jersey, the Motor Vehicle Commission generates a license number for that person. To resolve... View More

2 Answers | Asked in Traffic Tickets for New Jersey on
Q: Does insurance rise with the ticket 39:3-4 - DRIVING OR PARKING UNREGISTERED MOTOR VEHICLE. Will The ticket be on record

I just bought a bike on Sunday… and was riding it in my streets to learn and get the hang of it. The bike had valid insurance, the title was signed I showed the officer the title as well. I literally told the officer that I recently got the bike and was not aware it needed to be registered before... View More

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

Although it might seem counterintuitive, the best way to find out whether and how a motor vehicle ticket will impact insurance rates is to call the insurance company.

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1 Answer | Asked in Traffic Tickets and Municipal Law for New Jersey on
Q: Is it not smart to plea online should I just wait for my court case

I got a fine for failure to move over for emergency vehicle

Michael A. Smolensky
Michael A. Smolensky
answered on May 9, 2023

It is advantageous to know the penalties one faces for any offense. A conviction for Failure to Pull Over for Emergency Vehicle carries fines, jail, license points, and insurance eligibility points. If this causes concern, then it seems to be a good idea to fight it in court. Along the way, you... View More

1 Answer | Asked in Criminal Law for New Jersey on
Q: I was convicted of a criminal crime in 2012 and sentence 2013 for probation for 2 years. can i get this expunged?

it has been 10 years since i have sentenced. i have cleaned up my life completely in the last 8 years.

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

It appears you might be eligible to petition the court for expungement, but more information is required to offer a legal opinion. Speaking to an expungement attorney about this on the telephone should help clarify any possible issues.

1 Answer | Asked in Criminal Law and Federal Crimes for New Jersey on
Q: a defendant is giving a title 35 does it have anything 2 do with giving info about another defendant in order 2 get fav?
Michael A. Smolensky
Michael A. Smolensky
answered on Jan 17, 2023

The form of this question is difficult to understand. A defendant can get a favorable plea agreement for a variety of reasons. Cooperating with authorities as an informant is only one of many. A defense attorney who can identify a meritorious pretrial motion can also negotiate a favorable plea deal... View More

2 Answers | Asked in Criminal Law and Employment Law for New Jersey on
Q: If convicted 15 years ago for CDS, will that show up on a criminal background check for NJ school employment?
Michael A. Smolensky
Michael A. Smolensky
answered on Oct 31, 2022

Generally speaking this will appear in any background check unless the defendant petitions for and is granted an order of expungement. But more information is required to answer this question under these circumstances. Contacting a criminal defense attorney to discuss this in greater detail is a... View More

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1 Answer | Asked in Criminal Law for New Jersey on
Q: If I have a third degree aggravated assault do I have to provide dna sample
Michael A. Smolensky
Michael A. Smolensky
answered on Oct 21, 2022

In New Jersey, yes. It’s in the plea form. A defendant must provide the sample and pay for the testing.

1 Answer | Asked in Car Accidents and Criminal Law for New Jersey on
Q: I woke up one night at approximately 5pm, I went outside to go to Walmart and my car was gone. I reported car stolen.

The police came back the next night accusing me of making false report because apparently my ex boyfriend was driving the car and had gotten into an accident. I allow him to use my car when he needs it but in this particular day I did not know that he had the car as I thought he was out of state.... View More

Michael A. Smolensky
Michael A. Smolensky
answered on Oct 11, 2022

This sounds important. But it is difficult to answer this question online because more information is necessary. If it is as important to you as it sounds, then you will want to contact a private attorney to discuss this in more detail.

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