What is the name of your state (only U.S. law)? New Jersey
My 23 yr old son was stopped for crossing a double yellow line due to a vehicle on the side of the road. ( MAY 2010 )
That is the reason he was told when he went to court, and NOT at the scene and he never received a summons for that.
The officer told him to get out of the car and as soon as he did the officer grabbed an Altoids box in his shirt pocket, opened it and found a small amount of pot.
In his report the officer stated that he smelled pot ( but never mentioned that at the scene ).
My son had a conditional discharge when he was 18 which he told the public defender, but the PD said that he would do what he could.
The Prosecutor offered a conditional discharge which my son accepted.
The Judge gave him about $1100. in fines and one year of probation and that after the year his record would be cleared.
That happened back in August of 2010.
My son had paid about $500. of his fines ( on the court imposed schedule )and went to his first Probation appointment in November of 2010.
They asked him some questions and then determined that he was NOT eligible for a second conditional discharge and that he would have to go back to court.
He was given a court date of January 12, 2011
When he went there the Prosecutor and the Public Defender was not there.
The Judge said that if he pleaded guilty that he would only impose a fine and that since he was working and a student that my son could ask the Prosecutor to not take his drivers license.
My son asked the Judge if he could talk with the Prosecutor first before pleading guilty and the Judge said that he could come back on January 19. 2011 when the Prosecutor and the Public Defender would both be there.
When he went back on the 19th, the Public Defender had about 15 cases and really did zero for my son and did not discuss the case or what transpired the week before.
The Prosecutor asked for a 90 days suspended sentence.
The Judge then imposed a fine of $175. and asked if a years probation should be imposed, and the Prosecutor agreed that based on my sons “failing the program” that it was a good idea!
All the while the Public Defender is sitting there, saying nothing, and actually was reading the next case to come up!
My questions:
1) the Conditional Discharge granted in August of 2010 was NOT vacated and the judge imposed new penalties.
Can the CD remain in place if my son was NOT entitled to it in the first place?
2) If my son was NOT entitled to the CD, then how can additional fines and penalties be added to something that can’t legally exist.
Does my son legally owe the initial fines or only the second fine of $175.
3) It would seem that he may be able to appeal for the ineffective assistance of counsel…..but then he may get a harsher sentence on retrial.
Would that be a bad strategy?
4) If a driver goes around an obstacle that makes it unsafe to stay in his lane of travel requiring him to cross a double line ( when there is no oncoming traffic ) does that justify a legal stop or can my son prevail that the stop was a mere pretense?
5) My feelings are that if my son can not improve his situation that he should leave the sentence stand, however if he can prevail on a post conviction relief then I would like to hire him an attorney to do so.
Thanks in advance.
My 23 yr old son was stopped for crossing a double yellow line due to a vehicle on the side of the road. ( MAY 2010 )
That is the reason he was told when he went to court, and NOT at the scene and he never received a summons for that.
The officer told him to get out of the car and as soon as he did the officer grabbed an Altoids box in his shirt pocket, opened it and found a small amount of pot.
In his report the officer stated that he smelled pot ( but never mentioned that at the scene ).
My son had a conditional discharge when he was 18 which he told the public defender, but the PD said that he would do what he could.
The Prosecutor offered a conditional discharge which my son accepted.
The Judge gave him about $1100. in fines and one year of probation and that after the year his record would be cleared.
That happened back in August of 2010.
My son had paid about $500. of his fines ( on the court imposed schedule )and went to his first Probation appointment in November of 2010.
They asked him some questions and then determined that he was NOT eligible for a second conditional discharge and that he would have to go back to court.
He was given a court date of January 12, 2011
When he went there the Prosecutor and the Public Defender was not there.
The Judge said that if he pleaded guilty that he would only impose a fine and that since he was working and a student that my son could ask the Prosecutor to not take his drivers license.
My son asked the Judge if he could talk with the Prosecutor first before pleading guilty and the Judge said that he could come back on January 19. 2011 when the Prosecutor and the Public Defender would both be there.
When he went back on the 19th, the Public Defender had about 15 cases and really did zero for my son and did not discuss the case or what transpired the week before.
The Prosecutor asked for a 90 days suspended sentence.
The Judge then imposed a fine of $175. and asked if a years probation should be imposed, and the Prosecutor agreed that based on my sons “failing the program” that it was a good idea!
All the while the Public Defender is sitting there, saying nothing, and actually was reading the next case to come up!
My questions:
1) the Conditional Discharge granted in August of 2010 was NOT vacated and the judge imposed new penalties.
Can the CD remain in place if my son was NOT entitled to it in the first place?
2) If my son was NOT entitled to the CD, then how can additional fines and penalties be added to something that can’t legally exist.
Does my son legally owe the initial fines or only the second fine of $175.
3) It would seem that he may be able to appeal for the ineffective assistance of counsel…..but then he may get a harsher sentence on retrial.
Would that be a bad strategy?
4) If a driver goes around an obstacle that makes it unsafe to stay in his lane of travel requiring him to cross a double line ( when there is no oncoming traffic ) does that justify a legal stop or can my son prevail that the stop was a mere pretense?
5) My feelings are that if my son can not improve his situation that he should leave the sentence stand, however if he can prevail on a post conviction relief then I would like to hire him an attorney to do so.
Thanks in advance.