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DUIs Involving Prescription Drugs Difficult to Prove wltx.com | Columbia, SC News, Weather and Sports |
October 17th, 2010 Edward Harrington Heyburn No comments

DUIs Involving Prescription Drugs Difficult to Prove wltx.com | Columbia, SC News, Weather and Sports |.

Previously, I have advised you of the legal implication of teens sexting. Unfortunately, criminal penalties are not the only consequences faced by sexting teens. Hope Witzel made a mistake and sent her boyfriend a nude picture. Her actions were met with an unforeseen response. She became the subject of threats and extreme peer bullying. The abuse became too great for this teen to bear and she took her life. Prior to her suicide, the teen reached out to a school counselor who, inexplicably was unable to alert Witzel’s parents. Now the school is looking at their culpability for failing to prevent this girl’s death.

Rutgers student jumps to his death while roommate and friend face criminal charges and possible wrongful death lawsuit
September 29th, 2010 Edward Harrington Heyburn No comments

The Huffington Post reported today that a freshman at Rutgers University jumped to his death after fellow students invaded his privacy. “Dharun Ravi, and fellow freshman Molly Wei have been charged with invasion of privacy for secretly leaving a camera in Clementi’s room and posting his sexual encounter on the web. Each faces up to five years in prison.” While many criminal actions have a civil counterpart, none have the type with such far reaching effects of the wrongful death act.
“The common law recognizes various causes of action relating to the right to privacy. One of those is the tort of intrusion on seclusion. “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other 95*95 for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts, 652B (1977). To be an actionable tort, an invasion of privacy need not be physical; it can also arise “by the use of the defendant’s senses * * * to oversee or overhear the plaintiff’s private affairs * * *.” Or “[i]t may be by some other form of investigation or examination into his private concerns * * *.” Id. cmt. b. To recover under this cause of action the plaintiff need not prove publication of any information. Ibid. In discussing section 652B, the Appellate Division declared, “The thrust of this aspect of the tort is * * * that a person’s private, personal affairs should not be pried into.”Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992)(citing Bisbee v. John C. Conover Agency, 186N.J. Super. 335, 340, 452A.2d 689 (1982)). Ironically, the family will have to prove that they gained a pecuniary benefit from the victim to recover under New Jersey law. “As this Court has said in an infant death case, “the pecuniary injury designated by the statute is nothing more than a deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased,” Cooper v. Shore Electric Co., 63N.J.L. 558, 567 (E. & A. 1899).See also McStay v. Pryzchocki, 7N.J. 456, 461 (1951).” Green v. Bitner, 85 N.J. 1 (1980). Sometimes the law does not work as we anticipate.
The victim’s family may find some sanctuary in New Jersey’s punitive damages law.An act to give rise to right to punitive damages must be actuated by
“(1) actual malice, which is nothing more or less than intentional wrongdoing an evil-minded act; or (2) an act accompanied by a wanton and wilful disregard of the rights of another. Clearly, each case must be governed by its own peculiar facts.” LaBruno v. Lawrence, 64N.J. Super. 570, 575 (App. Div. 1960) certif. denied 34 N.J. 323 (1961).
Hopefully, this tragic loss can be an example to both those contemplating suicide and those looking to out someone’s private life.
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On August 31, 2010, in an unpublished opinion, the Superior Court of New Jersey Appellate Division reversed a lower court conviction for DWI/DUI where the State failed to turn over historical data and repair logs for the police Alcotest. State of New Jersey v. Maricic. While these documents are not foundational documents necessary for the State to obtain a conviction, they are documents that would challenge the reliability of the Alcotest. This case begs the question of what happens when the State says that they do not have repair logs. For a long time, the State has been able to shirk its responsibility to turn over repair logs by denying that any such documents exist. Now that the appellate division says Defendants are entitled to such documents, the fight to show that the State fails to properly maintain repair logs in on!
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Categories: Driving While Intoxicated/Driving While Under the Influence, Municipal Court and Traffic Matters Tags:

The short answer is no! Some say New Jersey is a right to work state which really means a right to be fired state. Some employers cloak their discriminatory intent under this guise. When the cloak is peeled back, we can often see that their true reason for firing an employee violated the law. “To establish a prima facie case of discriminatory discharge, the plaintiff must prove:(1) that he or she is a member of a protected group;(2) that he or she was performing his job at a level that met his [or her] employer’s legitimate expectations;(3) that he or she was nevertheless fired; and (4) that the employer sought someone to perform the same work after he or she left.”- in McConnell v. State Farm Mut. Ins. Co., 1999 By way of example, if a law firm was run by three partners (two Jewish and one Protestant) and these partners fired a series of Catholic lawyers, the Catholic lawyers would have a cause of action for wrongful termination because someone’s religion is a protected category. Often, the employer will make false allegations like the employee stole a fee when the employerstrue intent is to discriminate against someone for their religous beliefs.

Libel and slander are terms used by the public interchangeably but have different meanings. They both fall under the action we call defamation. Libel is when someone defames another in writing while slander is when someonedefames you in spoken word. “At the heart of every action for libel or defamation is the threshold issue of whether the language used is reasonably susceptible of a defamatory meaning. It is well established that that question is one of law to be resolved by the court. Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 429-30 (App.Div. 1958). Likewise, the critical issue in this case whether the letter in question amounted to a statement of fact or an expression of opinion is a question of law for the court. Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 366 N.E.2d 1299, 1306, 397 N.Y.S.2d 943, 950, cert. den., 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). As a preliminary matter we therefore emphasize that the summary judgment procedure is particularly well suited to this sensitive area of First Amendment Law.” Kotlikoff v. The Community News, 89 N.J. 62 (1982).
Many times these issues arise in the workplace. For instance if your employer falsely accuses you of stealing money and tells your co-workers you stole money that would be slander. If they put the same comments in writing, it would be libel. If your employer said “in their opinion,” you are a thief, this would not be defamation. It is merely their opinion. If you have questions about defamation, please call me to discuss your rights and options.

When a person sues another person for injuries or damages, they may open up private details of their life for the public to see. Sometimes the concern for privacy will prevent a person from suing. New Jersey Courts will let someone file a complaint anonymously to prevent the public from learning their identity or personal details of their claim. Anonymous pleading is rare but permitted.
For instance, in Whalen v. Roe, 429 U.S. 589, 591, 97S.Ct. 869, 872, 51 L.Ed.2d 64, 68 (1977), a state statute was upheld that required a centralized computer file record of names and addresses of people who had obtained certain prescription drugs for which there was also an unlawful market. Cf. Doe v. City of New York, 15 F.3d 264 (2nd Cir.1994) (agency publicly disclosed the settlement terms of HIV infected plaintiff’s discrimination claim in accordance with New York City law despite a confidentiality clause in the settlement agreement; court determined that under the agreement plaintiff had a right to confidentiality in his HIV status, and it did not “automatically become a public record when he filed his claim with the Commission and entered into the Conciliation Agreement”); James v. Jacobson, 6 F.3d 233, 234-235 (4th Cir.1993) (plaintiffs allowed to proceed anonymously where they alleged that *503 their infertility doctor artificially inseminated plaintiff-wife with his own sperm rather than plaintiff-husband’s sperm); Doe v. Blue Cross & Blue Shield of Rhode Island, 794 F. Supp. 72 (D.R.I. 1992) (transsexual allowed to proceed anonymously against medical insurer in claim for reimbursement of sex change expenses); United States v. Westinghouse Electric Corp., 638 F.2d 570, 581-582 (3rd Cir.1980) (National Institute for Occupational Safety and Health permitted to obtain employee medical records so long as employees had prior notice and an opportunity to object).

Not Guilty – Mercer County Jury Exhonerates Hightstown Man of Aggravated Sexual Assault
August 13th, 2010 Edward Harrington Heyburn No comments

August 13, 2010 After a two (2) week trial, Edward Harrington Heyburn, Esq. convinced a Mercer County jury that a Hightstown man was not guilty of Aggravated Sexual Assault and related charges. It took the jury approximately four (4) hours of deliberation before it returned a not guilty verdict to each of the six (6) charges levied by the State. What the jury did not hear is that in 2009, a Monmouth County jury refused to indict Mr. Heyburns client for the same allegations that the alleged victim made in Roosevelt, New Jersey. Hon. Pedro Jimenez not only refused to tell the jury that the defendant was not indicted but allowed the State to introduce evidence of the unindicted charges to explain why the alleged victim did not report her story to the police for over a decade.
After the trial, Ed Heyburn said, It was clear that the alleged victim fabricated her story. She gave approximately seven different versions that were all inconsistent with each other. The New Jersey State Police which patrols Roosevelt, spearheaded the investigation. Trooper Jessica Baker conceded on the stand that Mr. Heyburns client maintained his innocence even after that State Police lied to him. Trooper Baker admitted that it is a common tactic for the New Jersey State Police to lie to suspects to gain a confession. She and Det. Rosica said they had DNA evidence from semen in his pants. They advised him that he had leftthe pants at the house after a sexualassault. Mr. Heyburns client, embraced by innocence, told the New Jersey State Police to test the pants because there is no way that his semen could be in the victims house.
On cross examination, Mr. Heyburn forced Trooper Jessica Baker to admit that the entire victim statement only lasted 20 minutes. Furthermore, despite the alleged victims accusations that the client ejaculated on her hand over 1,000 times, the New Jersey State Police never went to the scene where she said the abuse occurred. The State Police never looked for semen stains on the rug or a stuffed doll the mother kept from when the alleged victim was young.
In an effort to save their case, the State called Lynn Taska, Ph.D. Dr. Taska is a psycologist from Metuchen that testifies to explain why an “alleged” victim of sexual assault may give inconsistent statements and testify to facts that never occurred. Interestingly, Dr. Taska offered, on crossexamination, that a “real victim” of sexual assault may be raped by one person and blame a completely innocent person. This left the door open for the possibility that the State’s complaintant was raped but by someone other than Mr. Heyburn’s client.
The not guilty verdict was the first step in restoring Mr. Heyburns clients reputation.
This case is proof that justice can only be obtained when you hire a trial attorney who is ready, willing and able to defend you before a jury of your peers.

Categories: Criminal Matters Tags: False Accusations of Sexual Assault, Hon. Pedro Jimenez, Lynn Taska, Mercer County, New Jersey State Police, Not Guilty, Ph.D., sexual assault, Trooper Jessica Baker

In New Jersey, what acts are counted as shoplifting?
Taking away merchandise with the intention of paying less than the full price to the merchantHiding merchandise on your body or something you’re carrying with the intention of not paying for it.Removing, altering, or transferring a price tag with the intention of paying less than the full price to the merchant.Transferring merchandise from the container in which it’s displayed to another container with the intention of paying less than the full price to the merchant (for example, putting a small item inside a large item and only paying for the larger item)
Under-ringing with the intention of paying less than the full price to the merchant

Intention? How do I prove someone “intended” not to pay me?
There is a presumption in the law that if you find unpurchased merchandise hidden on someone or in their belongings, that he or she hid it deliberately and intends not to pay for it.
What are the penalties for shoplifting?

2nd Degree, if the full retail value of property is $75,000 or more; penalties are imprisonment of 5-10 years and fine up to $150,000
3rd Degree; if the full retail value is over $500but less than $75,000; penalties are imprisonment of 3-5 years and a fine up to $15,000
4th Degree; if the full retail value of of the property is between$200 and $500; penalties are imprisonment up to 18 mos. and a fine up to $10,000
DisorderlyPersonsOffense; if the full retail value of of the property is under $200; penalties include imprisonment up to 6 mos. and a fine up to $1,000

for a second offense, at least 15 days of community service
for a third or subsequent offense, up to 25 days of community service AND imprisonment for no less than 90 days