Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
www.njlaws.com

Wednesday, March 05, 2014

NJSA 39:3-3 Notification of change of residence;

NJSA 39:3-3 Notification of change of residence;    a.  A licensed operator shall notify the chief administrator of any change in residence within one week after the change is made.  Notice shall be in such form and shall contain such information as the chief administrator may require. 

39:4-126 Signaling before starting, turning or stopping

39:4-126   Signaling before starting, turning or stopping
    No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter  provided in the event any other traffic may be affected by such movement.

    A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.

    No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear.

    The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by an approved mechanical or electrical signal device, except that when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible, both to front and rear, the  signal shall be given by a device of a type which has been approved by the  division.

    When the signal is given by means of the hand and arm, the driver shall indicate his intention to stop or turn by extending the hand and arm from and beyond the left side of the vehicle in the following manner and such signals shall indicate as follows:

    (a) Left turn.--Hand and arm extended horizontally.

     (b) Right turn.--Hand and arm extended upward.

     (c) Stop or decrease speed.--Hand and arm extended downward.

What is duty of care on making a right turn? 39:4-115 Making right or left turn.

What is duty of care on making a right turn? 39:4-115  Making right or left turn.

 
39:4-115   The driver of a vehicle or the motorman of a streetcar: a. intending to turn to the right or left at an intersection where traffic is controlled by traffic control signals or by a traffic or police officer, shall proceed to make either turn with proper care to avoid accidents and, except as provided in b. below, only upon the "go" signal unless otherwise directed by a traffic or police officer, an official sign or special signal; or b. intending to turn right at an intersection where traffic is controlled by a traffic control signal shall, unless an official sign of the State, municipality, or county authority having jurisdiction over the intersection prohibits the same, proceed to make the turn upon a "stop" or "caution" signal with proper care to avoid accidents after coming to a full stop, observing traffic in all directions, yielding to other vehicular traffic traveling in a direction in which the turn will be made, and stopping and remaining stopped for pedestrians crossing the roadway within a marked crosswalk, or at an unmarked crosswalk, into which the driver is turning.  Both the approach for and the turn shall be made as close as practicable to the right-hand curb or edge of the roadway, unless such intersection is otherwise posted.

What is Careless driving ? 39:4-97

Saturday, January 25, 2014

New law finally establishes a Conditional Dismissal Program in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

New law finally establishes a Conditional Dismissal Program in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.
Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law took affect in January 2014. However, the law requires a defendant to plead guilty as a partial of the program.
“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,” Bateman said. “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.” This law also helps Police and Prosecutors since it requires a guilty plea, thus reducing the need for trials and officer testimony.
Under prior law, the only offenses eligible for a conditional discharge were certain drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.
“First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served,” Bateman added. “The legislation will also help courts efficiently adjudicate cases without costly logjams.”
Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involved:
               organized criminal or gang activity;
               a continuing criminal business or enterprise;
               a breach of the public trust by a public officer or employee;
               domestic violence;
               an offense against an elderly, disabled or minor person;
               an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;
               animal cruelty;
               or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code. [Although first offender drug defendants are eligible for Conditional Discharge]
       After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may, approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. 
      This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.
      Previously, the supervisory treatment programs for pre-trial intervention and conditional discharge allow the court to suspend proceedings against eligible defendants while the defendants participate in supervisory treatment.  Persons who are charged with indictable offenses (crimes of the first, second, third, or fourth degree) may be eligible for pretrial intervention (“PTI”) pursuant to N.J.S.2C:43-12 et seq.  Persons charged with certain disorderly persons or petty disorderly persons drug offenses may be eligible for conditional discharge pursuant to N.J.S.2C:36A-1.  If the defendant violates a term or condition of supervisory treatment, the court may enter a judgment of conviction or, where the defendant did not previously plead guilty and was not previously found guilty, resume the criminal proceedings.  If the defendant successfully completes the program, the criminal charges are dismissed.
      CONDITIONAL DISMISSAL PROGRAM. This law establishes a similar diversion program in municipal court to be known as the conditional dismissal program.  Under the provisions of the law, a defendant who is charged with a petty disorderly persons offense or disorderly persons offense may apply to enter into the conditional dismissal program, provided the defendant  has not been previously convicted of any offense or crime under any law of the United States, this State or any other state.  A defendant may make an application to the conditional dismissal program after a plea of guilty or a finding of guilt, but prior to the entry of judgment of conviction.
      FINGERPRINTING REQUIREMENT.  To allow sufficient time for verification of the defendant’s criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.
      CONDITIONAL DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to any person who has previously participated in conditional discharge, conditional dismissal, or PTI.  In addition, conditional dismissal will not be available if the offense for which the person is charged involved: organized criminal or gang activity; a continuing criminal business or enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against an elderly, disabled or minor person; an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; animal cruelty laws; or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code (drugs and drug paraphernalia). However, a person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.
      In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicant's participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.
      If the court approves a defendant’s participation in the conditional dismissal program over the municipal prosecutor’s objection, that order will, upon the request of the prosecutor, be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.
      PROGRAM REQUIREMENTS.  After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.  The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court.  In addition, a judge could extend the term for good cause.
      If a defendant who is participating in conditional dismissal is convicted of any offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant’s prior plea of guilty or prior finding of guilt.
      If, at the end of the term, the defendant has not been convicted of any subsequent offense or crime under any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.
      The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs.  A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.
      LIMITATION.  A conditional dismissal can only be granted once with respect to any defendant.
      CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT.  A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75.  The fee would be deposited in the newly created “Municipal Court Diversion Fund” established under the law. Monies in this new fund will be used to offset the cost of intake and monitoring services related to the conditional dismissal program.  If admitted into the program, the defendant would also be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.
      A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged.  Such assessment would be distributed in the same manner as a fine for the offense.
      A defendant would be advised of these financial conditions prior to seeking entry into the program.
      The law allows the defendant to apply for a waiver of the fee by reason of poverty.  The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).  Under the provisions of that enactment, the court has several options available if it finds that a person does not have the ability to pay a penalty in full or has failed to pay a previously imposed penalty.  The court may reduce, suspend, or modify the installment plan; order that credit be given against the amount owed for each day of confinement if the court finds that the person has served jail time for the default; revoke any unpaid portion of the penalty; order the person to perform community service in lieu of payment of the penalty; or impose any other alternative permitted by law.
      MUNICIPAL COURT DIVERSION FUND.  The law establishes a new dedicated, non-lapsing fund to be known as the "Municipal Court Diversion Fund," which will be administered by the Administrative Office of the Courts.  The fund will be the depository of the $75 application fee for the conditional dismissal program.  Monies in the fund will be used to offset the cost of intake and monitoring services for defendants under the conditional dismissal program.
      CONDITIONAL DISCHARGE. Currently, the conditional discharge statute, N.J.S.2C:36A-1, provides that the $75 fee, which is charged for this program, is used to defray the costs of juror compensation. However, this provision is outdated since these monies are no longer used to defray the costs of juror compensation, but instead are paid to the State Treasurer to for deposit in the General Fund. This law updates this section of law accordingly.
      Under the current provisions of the conditional discharge statute, a person is not eligible for conditional discharge if that person has committed a disorderly persons or petty disorderly persons drug offense under any law of the United States, this State or any other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a person who has participated in any supervisory treatment program or the conditional dismissal program established under the law will not be eligible for participation in the conditional discharge program.
      SUPERVISORY TREATMENT (PTI).  Similar to the conditional discharge statute, the PTI statute, N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to defray the costs of juror compensation. Since these monies are no longer used to defray the costs of juror compensation, the law updates this section of law accordingly.
      Under the current provisions of N.J.S.2C:43-12, PTI may only occur once and any person who has previously received PTI is not eligible for subsequent PTI. This law expands this provision by providing that a person who has participated in either conditional dismissal or conditional discharge will not be eligible for PTI.
      The law amends the conditional discharge and PTI statutes to provide that the court may allow the payment of the fees and other financial obligations in installments.
      EXPUNGEMENT. The law amends N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to allow for expungement of charges dismissed pursuant to conditional discharge or conditional dismissal six months after the entry of the order of dismissal. Currently, this section allows for expungement for a person who has had charges dismissed as a result of participation in a supervisory treatment program.

19 Top New Court Rules 2013
Rule 7:7-7 (i) Discovery Fees limited to OPRA rates
      (1) Standard Fees. The fee assessed for discovery embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. From time to time, as necessary, these rates may be revised pursuant to a schedule promulgated by the Administrative Director of the Courts. If the prosecutor can demonstrate that the actual costs for copying discovery exceed the foregoing rates, the prosecutor shall be permitted to charge a reasonable amount equal to the actual costs of copying. The actual copying costs shall be the costs of materials and supplies used to copy the discovery, but shall not include the costs of labor or other overhead expenses associated with making the copies, except as provided for in paragraph (i)(2) of this rule. Electronic records and non-printed materials shall be provided free of charge, but the prosecutor may charge for the actual costs of any needed supplies such as computer discs.

Rule 7:7-7 g …….. If any discoverable materials known to a party have not been supplied, the party obligated with providing that discovery shall also provide the opposing party with a listing of the materials that are missing and explain why they have not been supplied. ……

Rule 7:7-7 (h) Motions for Discovery. No motion for discovery shall be made unless the prosecutor and defendant have conferred and attempted to reach agreement on any discovery issues, including any issues pertaining to discovery provided through the use of CD, DVD, e-mail, internet or other electronic means.

Free email newsletter on cases and articles on Municipal Court VercammenLaw@Njlaws.com

Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817

Friday, November 22, 2013

new NJ Supreme Court appeal A-31-13 State v. James J. Revie (072600)

new NJ Supreme Court appeal A-31-13 State v. James J. Revie (072600)
Is a defendant who is convicted of a third offense of driving while intoxicated (DWI) more than ten years after his second DWI conviction entitled to a second step-down in sentencing under N.J.S.A. 39:4-50(a)(3) after having already received a step-down in sentencing on his second DWI conviction?
Certification granted:  10/24/13
Posted:  10/25/13 

New Supreme Court appeal A-41-13 State v. Julie Kuropchak (072718)

New Supreme Court appeal A-41-13 State v. Julie Kuropchak (072718) 
In this appeal challenging a conviction of driving while intoxicated, was it error to admit the documentary evidence and the Alcotest reults, and was the observational evidence sufficient to sustain the conviction?
Certification granted:  11/13/13

Tuesday, October 15, 2013

SUPREME COURT REFUSES TO REMOVE ALCOTEST MACHINES


SUPREME COURT REFUSES TO REMOVE ALCOTEST MACHINES
State v Chun M-1538/1539/1540 September Term 2012
072341
O R D E R
     This Court having previously issued its unanimous opinion
addressing the challenges raised by defendants to the scientific
reliability of the Alcotest 7110 MKIII-C (the Alcotest), see
State v. Chun, 194 N.J. 54 (2008), and the Court having issued,
along with its opinion, its implementing Order of March 17,
2008, see id. at 149-56,
     And defendants having moved, M-1538, for an Order in Aid of
Litigants’ Rights, see R. 1:10-3, contending that the State has
failed to comply with this Court’s March 17, 2008, Order,
principally by failing to create and maintain a centralized
statewide database, and asserting more specifically that the
database lacks integrity because it differs from the manner in
which data was previously stored on and available on CD-ROM, is
incomplete as to certain types of files and calibration cycles,
1
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is presented in a format different from the one noted in the
report of the Special Master, and is subject to the third-party
software developer’s fee,
     And defendants having requested that this Court deem the
State to have violated the March 17, 2008, Order and that this
Court therefore direct the State to redesign the database to
comply with defendants’ understanding of the meaning and intent
of this Court’s March 17, 2008, Order, and that this Court
further direct the State to ensure the integrity of the data in
the database and order other relief,
     And the State having responded to the factual assertions
concerning the integrity and operation of the centralized
statewide database raised by defendants through the affidavits
of Howard J. Baum, Ph.D., Director of the Office of Forensic
Sciences (OFS), a Division of the New Jersey State Police, and
of Ali M. Alaouie, Ph.D., an OFS research scientist charged with
oversight and monitoring of Alcotest data downloads and database
integrity,
     And the State having moved, M-1539, for an Order in Aid of
Litigant’s Rights, see R. 1:10-3, seeking to modify the Court’s
March 17, 2008, Order and to authorize the State to continue to
utilize the Alcotest with Firmware version 3.11, which was
evaluated during the proceedings that led to this Court’s March
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17, 2008, Opinion and Order,
     And the State having therefore requested that it be
relieved of further compliance with Paragraph 2 of this Court’s
Order of March 17, 2008, based on the State’s representation
that Firmware 3.13, which is the Alcotest software that was
created in conjunction with Draeger Safety Diagnostics, Inc.
(Draeger), the manufacturer and supplier of the Alcotest, in
compliance with Paragraph 2 of this Court’s March 17, 2008,
Order, would effectively render the previously created database
unusable and unworkable,
     And the State having represented to the Court that Draeger
has advised that the Alcotest will no longer be serviceable
after 2016 and that the State is now in the process of
evaluating alternate breath testing devices for implementation,
     And defendants also having moved, M-1540, for an Order in
Aid of Litigants’ Rights, see R. 1:10-3, contending that, absent
compliance with Paragraph 2 of this Court’s March 17, 2008,
Order, which directed that the specified software changes be
made “forthwith[,]the Alcotest is unsuitable for use in New
Jersey,
     And defendants having challenged the reliability of the
Alcotest 7110 utilizing Firmware version 3.11 both in general
and in particular through reiteration of and expansion upon
3
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arguments raised during the proceedings that led to this Court’s
March 17, 2008, Opinion and Order, including defendant’s
challenge to the Firmware’s utilization of the fuel cell drift
algorithm and the absence of implementation of software to
account for the demonstrated physiological differences that
impede the ability of women over the age of sixty to provide a
sufficient breath sample and that therefore raised the specter
of inappropriate charges being brought against such women for
refusal, see N.J.S.A. 39:4-50.4a,
     And defendants having therefore requested that this Court
declare that the Alcotest is not sufficiently scientifically
reliable to be utilized in any prosecution for driving under the
influence of alcohol,
     And amicus curiae New Jersey State Bar Association having
urged this Court to appoint a Special Master to engage in fact
finding and evaluation of the State’s compliance with this
Court’s March 17, 2008, Order and to oversee enforcement and
implementation of that Order in all respects,
     And the Court having considered the papers filed in support
of and in opposition to each of the motions, and the Court
having entertained the oral arguments of the parties and on
behalf of amicus concerning the motions,
     And the Court having concluded that the centralized
                                4
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statewide database is fully in compliance with this Court’s
Order of March 17, 2008, in all respects,
     And the Court having further concluded that defendants have
failed to demonstrate that the State has “willfully refused” to
comply with this Court’s March 17, 2008, Order, see Pasqua v.
Council, 186 N.J. 127, 141 n.2 (2006), and that the State has
demonstrated that in spite of its best efforts to do so, it does
not have the ability to comply with Paragraph 2 of the Order,
see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 392 (1995), because of the unanticipated but unavoidable
adverse impact of compliance that the implementation of Firmware
version 3.13 would have upon the continued viability of the
existing database,
     And the Court having further concluded that the Alcotest
7110, utilizing Firmware version 3.11, remains scientifically
reliable, and generates results that are admissible to prove a
per se violation of the statutory prohibitions on driving while
under the influence of alcohol, when those results are utilized
in strict compliance with Paragraphs 1, 3, 4, 5, 6 and the
associated worksheets attached to this Court’s March 17, 2008,
Order,
     And the Court having further concluded that although
Paragraph 1(A)(3) of this Court’s March 17, 2008, Order directed
                                5
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that certain AIR results be inadmissible in prosecutions of
women over the age of sixty for violations of the refusal
statute, see N.J.S.A. 39:4-50.4a, a further remedy is now
necessary to protect the equal protection rights of women
falling into that category,
     And for good cause appearing,
     1.  IT IS ORDERED that defendants’ motions for Orders in
Aid of Litigants’ Rights, M-1538, M-1540, are denied; and
     2.  IT IS ORDERED that the State’s motion, M-1539, for
relief from further compliance with Paragraph 2 of this Court’s
March 17, 2008, Order is granted; and
     3.  IT IS ORDERED that the State’s motion, M-1539, for
authorization to continue to utilize the Alcotest 7110 with
Firmware version 3.11, and to deem the results admissible in
accordance with this Court’s March 17, 2008, Order and
associated worksheets, with the exception of the provisions of
Paragraph 2 thereof, is granted; and
     4.  IT IS ORDERED that, in addition to the directive in
Paragraph 1(A)(3) of this Court’s March 17, 2008, Order,
concerning admissibility of Alcotest results for women over the
age of 60 in prosecutions for refusal, see N.J.S.A. 39:4-50.4a,
if the only evidence of refusal is the inadmissible AIR, such
women may not be charged with, prosecuted for, or convicted of
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that offense.

State v. William O’Driscoll (A-7-12; 070438)


State v. William O’Driscoll (A-7-12; 070438)
          The police officer’s errors in the reading of the
          standard statement informing defendant of the
          consequences of refusing to provide a breath sample
          were not material in light of the statutory purpose to
          inform motorists and impel compliance.  The officer’s
          misstatements could not have reasonably affected
          defendant’s choice to refuse to provide a breath
          sample, and do not require reversal of defendant’s
          conviction for refusal. 
9-18-13   

New law raises penalties for texting, cell phone use while driving


 New law raises penalties for texting, cell phone use while driving
Senate Bill No. 69 (2R) imposes increased fines for first, second and subsequent offenses of talking on a hand-held wireless telephone or texting a message with a hand-held wireless electronic communication device while driving.  Specifically, this bill increases the fines to $200 to $400 for a first offense, $400 to $600 for a second offense, and $600 to $800 for third or subsequent offenses.
      Under the provisions of this bill, all fines collected are to be paid to the State Treasurer for allocation to the Chief Administrator of the Motor Vehicle Commission (MVC) for use in the MVC’s public education program on this offense, which will include informing motorists of the dangers of texting while driving.
      These Assembly amendments change the distribution of the fines collected pursuant to this bill.  Under these amendments, 50 percent of the fines collected are to be paid to and divided equally between the county and municipality where the violation occurred, and 50 percent of the fines collected are to be paid to the State Treasurer for allocation to the MVC for use in the public education program.

39:3-37 Falsifying application, examination; punishment, revocation of registration, license

39:3-37    Falsifying application, examination; punishment, revocation of registration, license  
  A person who gives a fictitious name or address or makes any other intentional misstatement of a material fact in an application for registration of a motor vehicle , an application for a waiver pursuant to section 15 of P.L.1995, c.112 (C.39:8-55) of the emission standards requirement, or an application for a driver's license or in a preliminary application, examination or proceeding, or a person who knowingly sells, loans or gives an identification document to another person for the purpose of aiding that person to obtain a driver's license, registration certificate or waiver certificate for which that person is not qualified, shall be subject to a fine of not less than $200 or more than $500, or imprisonment for not more than six months or both, at the discretion of the court.  The director shall, upon proper evidence not limited to a conviction, revoke the registration of the motor vehicle or driver's license of a person who violates this section for a period of not less than six months or more than two years.  

Thursday, September 19, 2013

Shoplifting 2C:20-11

O R D E R State v Chun



 1 

 SUPREME COURT OF NEW JERSEY 
M-1538/1539/1540 September Term 2012 
072341    O R D E R    
STATE OF NEW JERSEY, 
Plaintiff, 
v. 
JANE H. CHUN, ET AL., 
Defendants. 
This Court having previously issued its unanimous opinion addressing the challenges raised by defendants to the scientific reliability of the Alcotest 7110 MKIII-C (the Alcotest), see State v. Chun, 194 N.J. 54 (2008), and the Court having issued, along with its opinion, its implementing Order of March 17, 2008, see id. at 149-56, 
And defendants having moved, M-1538, for an Order in Aid of Litigants’ Rights, see R. 1:10-3, contending that the State has failed to comply with this Court’s March 17, 2008, Order, principally by failing to create and maintain a centralized statewide database, and asserting more specifically that the database lacks integrity because it differs from the manner in which data was previously stored on and available on CD-ROM, is incomplete as to certain types of files and calibration cycles, 2 

is presented in a format different from the one noted in the report of the Special Master, and is subject to the third-party software developer’s fee, 
And defendants having requested that this Court deem the State to have violated the March 17, 2008, Order and that this Court therefore direct the State to redesign the database to comply with defendants’ understanding of the meaning and intent of this Court’s March 17, 2008, Order, and that this Court further direct the State to ensure the integrity of the data in the database and order other relief, 
And the State having responded to the factual assertions concerning the integrity and operation of the centralized statewide database raised by defendants through the affidavits of Howard J. Baum, Ph.D., Director of the Office of Forensic Sciences (OFS), a Division of the New Jersey State Police, and of Ali M. Alaouie, Ph.D., an OFS research scientist charged with oversight and monitoring of Alcotest data downloads and database integrity, 
And the State having moved, M-1539, for an Order in Aid of Litigant’s Rights, see R. 1:10-3, seeking to modify the Court’s March 17, 2008, Order and to authorize the State to continue to utilize the Alcotest with Firmware version 3.11, which was evaluated during the proceedings that led to this Court’s March 3 

17, 2008, Opinion and Order, 
And the State having therefore requested that it be relieved of further compliance with Paragraph 2 of this Court’s Order of March 17, 2008, based on the State’s representation that Firmware 3.13, which is the Alcotest software that was created in conjunction with Draeger Safety Diagnostics, Inc. (Draeger), the manufacturer and supplier of the Alcotest, in compliance with Paragraph 2 of this Court’s March 17, 2008, Order, would effectively render the previously created database unusable and unworkable, 
And the State having represented to the Court that Draeger has advised that the Alcotest will no longer be serviceable after 2016 and that the State is now in the process of evaluating alternate breath testing devices for implementation, 
And defendants also having moved, M-1540, for an Order in Aid of Litigants’ Rights, see R. 1:10-3, contending that, absent compliance with Paragraph 2 of this Court’s March 17, 2008, Order, which directed that the specified software changes be made “forthwith[,]” the Alcotest is unsuitable for use in New Jersey, 
And defendants having challenged the reliability of the Alcotest 7110 utilizing Firmware version 3.11 both in general and in particular through reiteration of and expansion upon 4 

arguments raised during the proceedings that led to this Court’s March 17, 2008, Opinion and Order, including defendant’s challenge to the Firmware’s utilization of the fuel cell drift algorithm and the absence of implementation of software to account for the demonstrated physiological differences that impede the ability of women over the age of sixty to provide a sufficient breath sample and that therefore raised the specter of inappropriate charges being brought against such women for refusal, see N.J.S.A. 39:4-50.4a, 
And defendants having therefore requested that this Court declare that the Alcotest is not sufficiently scientifically reliable to be utilized in any prosecution for driving under the influence of alcohol, 
And amicus curiae New Jersey State Bar Association having urged this Court to appoint a Special Master to engage in fact finding and evaluation of the State’s compliance with this Court’s March 17, 2008, Order and to oversee enforcement and implementation of that Order in all respects, 
And the Court having considered the papers filed in support of and in opposition to each of the motions, and the Court having entertained the oral arguments of the parties and on behalf of amicus concerning the motions, 
And the Court having concluded that the centralized 5 

statewide database is fully in compliance with this Court’s Order of March 17, 2008, in all respects, 
And the Court having further concluded that defendants have failed to demonstrate that the State has “willfully refused” to comply with this Court’s March 17, 2008, Order, see Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006), and that the State has demonstrated that in spite of its best efforts to do so, it does not have the ability to comply with Paragraph 2 of the Order, see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 392 (1995), because of the unanticipated but unavoidable adverse impact of compliance that the implementation of Firmware version 3.13 would have upon the continued viability of the existing database, 
And the Court having further concluded that the Alcotest 7110, utilizing Firmware version 3.11, remains scientifically reliable, and generates results that are admissible to prove a per se violation of the statutory prohibitions on driving while under the influence of alcohol, when those results are utilized in strict compliance with Paragraphs 1, 3, 4, 5, 6 and the associated worksheets attached to this Court’s March 17, 2008, Order, 
And the Court having further concluded that although Paragraph 1(A)(3) of this Court’s March 17, 2008, Order directed 6 

that certain AIR results be inadmissible in prosecutions of women over the age of sixty for violations of the refusal statute, see N.J.S.A. 39:4-50.4a, a further remedy is now necessary to protect the equal protection rights of women falling into that category, 
And for good cause appearing, 
1. IT IS ORDERED that defendants’ motions for Orders in Aid of Litigants’ Rights, M-1538, M-1540, are denied; and 
2. IT IS ORDERED that the State’s motion, M-1539, for relief from further compliance with Paragraph 2 of this Court’s March 17, 2008, Order is granted; and 
3. IT IS ORDERED that the State’s motion, M-1539, for authorization to continue to utilize the Alcotest 7110 with Firmware version 3.11, and to deem the results admissible in accordance with this Court’s March 17, 2008, Order and associated worksheets, with the exception of the provisions of Paragraph 2 thereof, is granted; and 
4. IT IS ORDERED that, in addition to the directive in Paragraph 1(A)(3) of this Court’s March 17, 2008, Order, concerning admissibility of Alcotest results for women over the age of 60 in prosecutions for refusal, see N.J.S.A. 39:4-50.4a, if the only evidence of refusal is the inadmissible AIR, such women may not be charged with, prosecuted for, or convicted of 7 

that offense. 
WITNESS, the Honorable Jaynee LaVecchia, Presiding Justice, at Trenton, this 18th day of September, 2013. 
CLERK OF THE SUPREME COURT 
ASSOCIATE JUSTICES LaVECCHIA, ALBIN, and PATTERSON and JUDGES CUFF and RODRḮGUEZ (both temporarily assigned) join in JUSTICE HOENS’s Order for the Court. CHIEF JUSTICE RABNER did not participate. 

Sunday, September 08, 2013

Handling Drug DWI and Serious Motor Vehicle Cases in Municipal Court Monday, October 21, 2013


Handling Drug DWI and Serious Motor Vehicle Cases in Municipal Court
 Monday, October 21, 2013
5:30PM-9:00PM
Law Center, New Brunswick

Speakers: Kenneth A. Vercammen, Esq., K. Vercammen & Associates (Edison)
William G. Brigiani, Esq., Brigiani & Cohen (East Brunswick)
William D. Feingold, Esq., Law Offices of William D. Feingold (Carteret)
Prosecutor- Metuchen
John Menzel, Esq., Law Offices of John Menzel (Point Pleasant)
Norma M. Murgado, Esq., Murgado & Carroll (Elizabeth)
Chief Prosecutor- Elizabeth
Assistant Prosecutor-Woodbridge
Joshua H. Reinitz, Esq., Iaculio Martino, LLC (Nutley)

Program Agenda

5:30 Welcome and Criminal Traffic Case Law Update (Kenneth A. Vercammen, Esq.)
 6:00 Procedure: What to expect on your day in court (Joshua H. Reinitz, Esq.)
Procedural issues; driving while suspended; probationary drivers
6:25 The Prosecutor’s Perspective: no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues (Norma M. Murgado, Esq.)
6:50 Expert arguments that may work, common errors by defense attorneys and prosecutors, how to impress the court staff and not annoy the prosecutor (William D. Feingold, Esq.)
7:15 BREAK
7:25 Recent court rules changes, defending drug cases and domestic violence cases (William G. Brigiani, Esq.)
7:55 Issues in DWI cases- DWI interview (10 min.); What defendant counsel does after the interview (10 min), Field Sobriety ad HGN (5 min.), Alcotest (15 min) (John Menzel, Esq.)
8:35 Point Counter Point on DWI
(John Menzel, Esq., Norma M. Murgado, Esq., and William D. Feingold, Esq. followed by panel interaction)

9:00 Adjourn
        **Speakers invite questions during the break and after the conclusion of the program

         This informative seminar on Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court. An authoritative panel of experienced attorneys will be joined by well-respected Municipal Prosecutors to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Includes sandwiches, dessert, a 400-page book, CD with sample forms, documents & checklists!
A special Q&A session: Ask the Experts

Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers' Division
$170.00 General Tuition     [call for reduced price for Young Lawyers and Municipal Court Section members]
Seminar # S-1507-OOF3

Location: New Jersey Law Center
One Constitution Square
New Brunswick, NJ 08901
732-214-8500


http://www.njlaws.com/book_for_sale.htm

NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar Association CustomerService@njicle.com

CAN'T ATTEND? Contact NJ ICLE for CD, book, Video