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Mr. Tumelty represented Helena Hendricks, who was charged with first degree murder in Atlantic County Superior Court. The defendant faced a number of additional charges, including armed robbery, conspiracy and possession of a handgun for an unlawful purpose. At the conclusion of a jury trial that lasted three weeks, the defendant was found "not guilty" of all charges.

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Breath test mistake could mean hard time in New Jersey

Cape May readers who have followed some previous discussions may recognize that errors by law enforcement, though they may be unintentional, can have a profound effect upon defendants if they are not detected and addressed by diligent defense counsel. A recent story from another state, though sad in its own right, illustrates quite clearly how an innocuous mistake can have dramatic significance to the accused.

The story involves a 52-year-old man who was charged with vehicular homicide after drifting across the fog line on a state highway and fatally running down a pedestrian walking along the shoulder. A police officer who responded to the scene administered a breath test. Somehow, the officer misread the breath test results and the man was charged with vehicular homicide while driving under the influence even though his actual preliminary breath test result was well below the legal limit at 0.016.

Fortunately for the defendant, the police officer’s mistake was discovered and the charge against the man was amended to vehicular homicide while driving with disregard for the safety of others. Even though the amended charge was still quite serious, the original charge could have led to significantly more jail time upon conviction.

Under New Jersey law, vehicular homicide charges can lead to a mandatory jail sentence upon conviction if the defendant is found to have been intoxicated at the time of the offense. A person imprisoned for a fatal drunk driving accident is not eligible for parole for at least three years.

Any New Jersey driver could have the same experience as the driver described in this story. Something as simple as a misplaced decimal point could mean the difference between a sentence appropriate to the offense and a harsh, undeserved punishment. Representation by an experienced defense attorney can help ensure that people charged with a crime are not made to suffer the consequences of law enforcement mistakes.

Source: The Olympian, “Man sentenced in fatal crash,” Jeremy Pawloski, Feb. 5, 2013

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