Richardson Law Legal Blog

Posted By Steven J. Richardson on July 26, 2010

Many clients come to me after having been sued by one or more of their creditors, and they are concerned that it is too late to do anything about that particular debt.   I would have to say, though, that in the vast majority of cases, a debtor can still wipe out that debt.   However, the situation can be different depending upon whether a judgment has already been entered.

Once you file for bankruptcy protection, creditors are barred from taking any action against you. If a judgment has yet to be entered, then that cannot happen without them asking the bankruptcy court first. In this situation, that creditor is treated just like any other unsecured creditor.

If  a judgment has already been entered, that may change things.  First of all, that judgment creates a lien on any real estate that you may own in New Jersey.  So, if you own real estate, the debt may have gone from an unsecured debt to a secured debt through a judgment lien. That is the bad news.

The good news is that in many cases, if you do not have a lot of equity in the property, the judgment lien can be avoided.  People in bankruptcy in New Jersey are allowed to keep assets that do not have a net value  over and above a fixed amount called an “exemption.”  Therefore, if the judgment lien is “sitting” on that equity, it “impairs” your ability to enjoy the benefit of that exemption.  This means that if you do not have any more equity in your house than you can legitimately exempt, you can “avoid” the judgment lien.  The problem comes in if you have more equity in your home than you can exempt, the judgment lien may stay in place.  You should bear in mind, though, that the “avoiding” of that lien requires an extra step in your bankruptcy for which many attorneys charge an extra fee.  Thus waiting until a judgment is entered could end up costing you more money to file bankruptcy.

Another angle of attack on the judgment lien is if you file bankruptcy within ninety (90) days of the date the judgment was entered. One reason people file bankruptcy is to prevent any one creditor from gaining an advantage (such as filing the first wage execution, bank levy or, in this case, judgment lien).  A fundamental principal of bankruptcy law is to treat creditors of the same class equally, and by obtaining a judgment lien ahead of other unsecured creditors, the judgment creditor has obtained an advantage.  This amounts to a “preference” under the bankruptcy code, and can be the basis of an objection.  But again, that is an additional step that you will need to take, which could end up costing you extra.

The obvious lesson here is that waiting too long to file bankruptcy can cause you headaches, from costing you more money to wipe out your debt to facing the possibility of having to pay off a lien.  Realistically speaking, most bankruptcy cases that are filed do not result in assets being sold because most debtors do not have assets over and above what they may exempt. But judgment liens can create a complication for you, so if the sharks are circling and the lawsuits are starting to pile up, it is time to talk to a bankruptcy attorney.  Don’t wait until it is too late!

Category: Bankruptcy, FAQ | No Comments »
Tags: Bankruptcy, discharge, judgment

Posted By Steven J. Richardson on July 22, 2010

I have written before about why it is a bad idea to break the traffic code “willfully” (such as to drive with full knowledge that your license is suspended or that you have no insurance),  by discussing the ruling of the New Jersey appellate court in the case of State v. Moran.  Basically, it is because you could have your license suspended for doing so.  Well, on July 13, 2010, the New Jersey Supreme Court issued a ruling on the appeal of that case.  The Justices set forth standards that judges are to use when deciding whether (and how long) to suspend someone’s driving privileges. The relevant law authorizes this punishment for any “willful” violation of the state’s motor vehicle laws. In addition to ruling that this law applies to situations involving enhanced recklessness, the justices required that sentencing judges weigh, evaluate and note  on the court record a number of factors before imposing a license suspension, including:

1) the nature and circumstances of the defendant’s conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage;

2) the defendant’s driving record, including the defendant’s age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions;

3) whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant’s driving record indicates that there is a substantial risk that he or she will commit another violation;

4) whether the character and attitude of the defendant indicates that he or she is likely or unlikely to
commit another violation;

5) whether the defendant’s conduct was the result of circumstances unlikely to recur;

6) whether a license suspension would cause excessive hardship to the defendant and/or dependents; and

7) the need for personal deterrence.

These are in addition to any other factors that the court may deem relevant.

In addition to these factors, the Court stated that comparisons to motor vehicle statutes that impose mandatory license suspensions also may be a useful guide in some cases. It is also not necessarily the number of the above considerations that apply, but the weight to be attributed to one or more of them.

My caution in my previous post still applies: don’t think you are safe from license suspension because the traffic statute you break does not include that as a penalty; if the court deems your violation to be “willful,” you could still lose your license.  The ability to drive in New Jersey is a privilege, not a right!

Category: News, Traffic Court | No Comments »
Tags: driver's license suspension, Traffic Court

Posted By Steven J. Richardson on July 19, 2010

The title of this post sounds funny, but it can cause problems for people that are arrested for drunk driving in New Jersey.  The breathalyzer used here is the Alcotest 7110, and it is a rather sophisticated machine.  After being given two (2) breath samples, it spits out a report that sets forth your Blood Alcohol Content (BAC).  Score over .08%, and you are presumably impaired by alcohol (i.e. guilty of drunk driving).  For the machine to work, you have to blow a minimum volume of air into the tube (1.5 liters) over a minimum period of time (4.5 seconds), and yield a “minimum flow rate” of 2.5 liters per minute.  The machine itself offers up to eleven (11) attempts to collect two acceptable breath samples.  After that, the police have the option of either terminating the process and resetting the machine for eleven (11) more tries, or charge you with refusal, which is a separate offense that carries essentially the same penalties as drunk driving!

When someone is arrested for drunk driving and taken to the police station, they are read the first  part of a standard statement saying that they do not have the right to refuse the breathalyzer either on the grounds of wanting an attorney present or their right against self-incrimination.  If the person does not respond, invokes their right to an attorney or against self-incrimination, or if the response is ambiguous, the police must read the second section of the statement, which reiterates that those rights do not apply, and that a clear answer must be given in the affirmative to avoid a charge of refusal.  But what if the person agrees unequivocally to give breath samples after being read the first section, but then is unable to give a sufficient sample, what happens then?

Well, fortunately New Jersey’s Appellate Court gave us the answer at the beginning of this month in the case of State v. Schmidt.  It ruled that before charging a person with refusal, the police should read the second part of the DWI standard statement in those circumstances where the defendant gives an initial, unqualified consent to submitting a breath sample and thereafter is unable or unwilling to provide an adequate sample for analysis.  Sometimes people try to “game the system” and look like they are cooperating and giving samples, but in reality are just trying to make it look like there is something wrong with the machine.

This does add an additional layer of protection by requiring the police to say, in effect, “stop fooling around or we will charge you with refusal,” but it is not the end of the story.  If you find yourself in that situation, bear two things in mind: 1) don’t try to be cute, they can still get you; and 2) if you have asthma, COPD, or some other disorder that may well interfere with your ability to give a proper sample, speak up! Let the police know that no matter what you do, it just isn’t going to work.  They can always try taking a blood sample, but at least you can try to avoid a refusal charge, which is never good.  As I have said many times on this site: the law does provide certain protections, but that does not mean you should not speak up for yourself and provide protections of your own.

Category: DWI/DUI, News, Traffic Court | 1 Comment »
Tags: breathalyzer, refusal

Posted By Steven J. Richardson on July 15, 2010

I had written in a previous post that when it came to getting a driver to understand that he or she is obligated to give breath samples when arrested for DWI, with no right to counsel or protection from self-incrimination, non-English speakers were out of luck.  The police had no duty to make sure that the driver understood the instruction.  Those that did not understand that they could not refuse, and refused, were charged.  This was based on a New Jersey appeals court decision in the case of State v. Marquez. Fortunately, this miscarriage of justice has been corrected.

The decision of the appellate court was appealed, and on July 12, 2010, the New Jersey Supreme Court ruled that a person who has been arrested for drunk driving has the right to be informed of the obligation to submit to a breath test in the language he or she speaks.  As a practical matter, the Attorney General and the Motor Vehicle Commission will be tasked with providing a means of having the warning language available in a wide variety of foreign languages spoken in New Jersey.  It only took a year, but at least justice was finally served.

The key thing to bear in mind is that if your English is not that strong, and you do not understand the often convoluted text of the standard warning police are required to read to those arrested for DWI, speak up. They are now under a duty to make sure you understand.  Tell them what your native language is and wait until they are able to provide you with either some one who can translate it for you verbally, or give you the text written in that language.  It’s the law!

Category: DWI/DUI, News, Traffic Court | 1 Comment »
Tags: refusal

Posted By Steven J. Richardson on July 12, 2010

It is fairly rare for jail time (incarceration) to be meted out as part of a traffic court sentence, but it does happen.  What is even rarer is where there is an accumulation of jail time for various offenses that adds up to a rather long stay.  How much time can you rack up?  Well, a recent decision by New Jersey’s Appellate Court answers that question.

In the case of State v. Federico the judges held that jail terms imposed as a result of multiple traffic ticket convictions arising out of a single incident may not exceed 180 days. The case here involved someone who was convicted of a third offense DWI, along with driving on the revoked list as a result of a prior DWI conviction.  Each of these offenses requires a jail term, and the total time exceeded 180 days.  In arriving at this decision, the Court noted that federal constitutional law would permit a sentence exceeding 180 days following the conviction for a variety of petty offenses stemming from the same incident. However, as a matter of long-standing policy, in the absence of the offer of a jury trial, 180 days of incarceration is the maximum permitted in our state for convictions of multiple petty offenses arising from the same incident.

One should bear in mind, however, that this is for traffic court offenses, not criminal matters such as shoplifting, assault, and the like.  These are considered disorderly, or petty disorderly conduct, charges, as opposed to traffic tickets.  Even so, it does give someone an idea of the maximum time he or she may face as a result of these types of violations.

Category: News, Traffic Court | No Comments »
Tags: jail time