New Jersey DWI Attorney John Menzel

Steps of Litigation


The Steps of Drunk Driving Litigation

Litigation has many steps. Going to court – even the municipal court on a drunk driving, breath test refusal, or other traffic ticket – can involve a long, sometimes complicated process involving many steps. No case will ever follow every possible path that the litigation could take. A lawyer can guide you through these steps and keep you informed about what is going on.

Every case will involve at least parts of the first three stages of the litigation — i.e., issuance of the summons and complaint, pretrial procedures, and trial. If one is either acquitted or chooses to accept the trial court’s verdict, the litigation ends.

If a defendant is unhappy with the verdict, there are two stages of appeal which every defendant has as a matter of right — i.e., to the New Jersey Superior Court, Law Division, and to the New Jersey Superior Court, Appellate Division.

In the Appellate Division, two or three judges review the decisions of the Law Division judge. If all Appellate Division judges agree, the losing party does not have the right to appeal further, but can ask the New Jersey Supreme Court for permission to appeal — i.e., a petition for certification. A petition for certification to the State Supreme Court may be granted or denied for any reason or no reason at all, and a denial does not imply a disposition on the case’s merits.

Once all appeals are exhausted with the New Jersey State courts system, the losing party may ask the U.S. Supreme Court for permission to appeal — i.e., a petition for certiorari. As with a petition for certification to the New Jersey State Supreme Court, such a petition may be granted or denied for any reason or no reason at all, and a denial does not imply a disposition on the case’s merits.

Once a defendant exhausts all appeals, he or she may seek post conviction relief, which focuses on any grave injustice that may have occurred in the course of the trial and appellate proceedings. Generally, one may not raise issues in post conviction relief that could have been raised on direct appeal. But certain issues go to the heart of due process and can be reviewed first by the trial court, then on appeal. Such issues often include whether a defendant received proper representation by an attorney, whether the defendant was advised of his or her right to an attorney or the right to appeal, or whether there were sufficient facts to support the conviction of an innocent defendant.

The following outline gives guidance on how far one might take their defense.

The Trial Level

I.

Issuance of Summons and Complaint.

II.

Pretrial Procedures.

  • Issuance of Summons and Complaint.
  • Arraignment in Municipal Court.
  • Plea: Guilty or Not Guilty.
  • Attorney’s Appearance.
  • Discovery
  • Pretrial Motions:
    • Suppress Evidence.
    • Exclude Admissions.
    • Discovery Issues.

III.
Trial:

  • State’s Case.
    • Direct examination of State’s witnesses.
    • Cross examination of State’s witnesses.
    • The State rests.
  • Motion to Acquit Defendant.
  • Defense Case.
    • Direct examination of defense witnesses.
    • Cross examination of defense witnesses.
    • The Defense rests.
  • Closing Arguments.
  • Verdict: Guilty or Not Guilty.
  • Motion for Stay of Execution of Sentence.

NOTE: Court rules usually prohibit plea bargaining of drunk driving and breath test refusal, marijuana possession, and drug paraphernalia charges.

IV.

Appeals to Superior Court, Law Division

  • Notice of Appeal (within 20 days of sentencing at trial).
  • Briefs filed with Appellate Court.
  • Oral Argument (if requested).
  • Verdict: Guilty or Not Guilty.
  • Motion for Stay of Execution of Sentence.

V.
Appeals to Superior Court, Appellate Division

  • Notice of Appeal (within 45 days of entry of judgment of conviction in Law Division).
  • Briefs filed with Appellate Court.
  • Oral Argument.
  • Opinion issued for either (a) affirmance, (b) reversal, or (c) vacation and remand.

VI.
Appeal or Petition to the New Jersey Supreme Court

  • Certification (e., by permission) if Appellate Division opinion is unanimous).
  • Appeal as of right if Appellate Division is divided.

VII.
Appeals Beyond the New Jersey Supreme Court

  • Petition for Certiorari to the S. Supreme Court.
  • Appeal to U.S. Supreme Court if certiorari is granted.

VIII.

Post Conviction Challenges to Conviction

In State Courts:

  • Petition for Post-Conviction Relief within five years of conviction, except under extraordinary circumstances.
  • Appeal to Superior Court, Law Division.
  • Appeal to Superior Court, Appellate Division.
  • Appeal or Petition to New Jersey Supreme Court.

In Federal Courts:

  • Petition for Writ of Habeas Corpus in Federal District Court within one year of exhaustion of State appeals and if defendant still faces custody (e., jail or IDRC).
  • Certification of Probable Cause to Appeal (unless already certified).
  • Appeal to Federal Circuit Court of Appeals.
  • Petition for Certiorari to the S. Supreme Court.

Appeal to U.S. Supreme Court if certiorari is granted.

John Menzel, J.D.

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