Friday, August 08, 2008

HANDLING DRUG, DWI & MOTOR VEHICLE VIOLATIONS IN MUNICIPAL COURT

HANDLING DRUG, DWI & MOTOR VEHICLE VIOLATIONS IN MUNICIPAL COURT
September 15, 2008 5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick

Speakers include:
HON. JOAN ROBINSON GROSS
Presiding Judge, Union County

KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Editor: “New Jersey Municipal Court Review”
2006 NJSBA Municipal Court Practitioner of the Year
Kenneth Vercammen & Associates (Edison)

WILLIAM G. BRIGIANI, ESQ.
Brigiani, Cohen, & Schneider (East Brunswick)

JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)

Dennis Driscoll
Municipal Prosecutor (Denville, Montville, Rockaway Township, Morris Plains & Netcong)
You’ll receive a CD containing over 2,000 pages of forms, discovery motions, briefs and orders, plus the 264 page Judge King Chun report, Chun opinion and Attorney General Guidelines
This practical program featured a top notch panel of experienced practitioners and a Municipal Court judge. They provide instructions on handling the more serious drug, DWI and traffic offenses someone id likely to confront and suggest effective strategies for handling the.
Includes

EFFECTIVE STRATEGIES & PRACTICE TIPS YOU CAN USE TO REPRESENT YOUR CLIENTS ACCUSED OF MORE SERIOUS DRUG & TRAFFIC OFFENSES INCLUDING…
• Lab reports in drug cases
• Driving while suspended and enhanced penalties
• Jurisdiction issues for serious motor vehicle accidents
• Increased refusal penalties
• Assault
• Defenses to no-insurance cases
• Drug recognition expert cross-examination
• How to impress the Court and not annoy the Court staff
• Forms, motions and demand letters
• Criminal case law developments during the past year
• Sentencing arguments in multiple offense cases
• What’s new on the Alcotest 7110 breath testing machine
• New laws and pending legislation
…and more

Presented in cooperation with the NJSBA Municipal Court Practice Section, NJSBA General Practice Section, and the NJSBA Young Lawyers Division

For registration costs and details, contact
New Jersey Institute for Continuing Legal Education
One Constitution Square, New Brunswick, New Jersey 08901-1520
732-249-5100
http://www.njicle.com/seminar.aspx?sid=362 732-249-5100
program: S1507d-14380

Friday, May 30, 2008




Criminal and Motor vehicle violations can cost you. If convicted of a criminal offense you could face Jail Time and loss of Job. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

Welcome to Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
Toll Free 1-800-NJLAWS7 (1-800-655-2977)
Criminal on Weekends 732-261-4005


Kenneth Vercammen is the Middlesex County Bar Municipal Court Attorney of the Year.


Driving While Suspended in New Jersey

Thousands of motorists in New Jersey are stopped for routine traffic violations then are surprised to be informed their license is suspended. Where the minimum costs would be over $1,261 in fines, surcharge and costs, motorists should be certain not to allow their license to become suspended. If charged, motorists may need an attorney with knowledge and skill in handling driving while suspended matters.

The violation of Driving While Suspended is set forth at NJSA 39:3-40. This section states, "no person to whom a drivers license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition." The statute also prohibits the operation of a motor vehicle whose registration has been revoked.

PENALTIES

Conviction under this statute brings the following penalties. Upon conviction of the first offense of fine of $500.00. The defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the DMV. Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for not more than 5 days. Upon conviction for the third offense a fine of $1000.00 and imprisonment in the county jail for 10 days. Additionally, the statute states, upon the conviction the court shall impose or extend a period of suspension not to exceed 6 months. Also, upon conviction the court shall impose a period of imprisonment for not less than 45 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in personal injury to another person.

If an individual violates this section while under suspension issued pursuant to 39:4-50, driving while under the influence of liquor or drugs and is convicted, they shall be fined $500.00 extra? and have their license suspended for an additional period not less than one year nor more than two years and may be in the county jail for not more than 90 days. The defendant will also be surcharged a mandatory $250.00 per year for 3 years.

Although most municipal court matters are considered minor by many citizens it is obvious from the possible penalties involved that this is a serious offense carrying the possibility of both stiff fines and incarceration.

There are two types of license suspension :

1. Court imposed suspension

2. Administrative / Division of Motor Vehicles suspension

The most common scenario reflects where that the driver, through a motor vehicle violation, failure to pay surcharge or a accumulated points has been placed on a suspended list maintained by the New Jersey Division of Motor Vehicles (Division of Motor Vehicles), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state.

If the driver is aware that they are on the suspended list and acknowledged they were suspended to the police officer there is little room for defense However, more often than not the driver claims that they were unaware of their placement on the suspension list.

The scenario that will often be presented by the driver is that he/she was stopped by police for an unrelated motor vehicle violation. In the process of the police encounter they were informed by the officer that their license has been suspended and they were issued an additional summons for Driving While Suspended. Over the past decade several New Jersey cases have crafted the current position on the driving while suspended issue that often confronts many municipal courts throughout the state.

THE STATE MUST SHOW DUE PROCESS AND ADEQUATE NOTICE

The first and foremost is that of adequate notice of the suspension. In Parsekian v. Cresse, 75 N.J. Super. 405 (App Div. 1962), the court ruled that it was incumbent upon the Director of the State Division of Motor Vehicles to provide fair and adequate notice to the licensed driver of the proposed suspension of their license. The court recognized that the Director could not arbitrarily suspend the license of a driver without providing both notice and enunciating specific reasons as to why the license was being suspended.

A later case, State v. Wenof, 102 N.J. Super. (Law Div. 1968), both reinforced and advanced the earlier Parsekian decision. Wenof represents the substantive foundation upon which all subsequent cases involving the notice issue have been based. In Wenof, the court again recognized the importance of adequate notice of suspension. The court related, "there is always a risk that notice may not reach the intended person, but this is not the test for legal sufficiency. The test is rather, whether the notice was reasonably calculated to reach the intended parties." Id at 375. In Wenof, the Division of Motor Vehicles sent to a written notice of proposed suspension (for failure to satisfy a summons) by regular mail. The Division of Motor Vehicles thereafter sent an order of suspension by ordinary mail. The notices were mailed to the defendant's last address. By failing to leave a forwarding address informing the Division of Motor Vehicles where he could be reached by mail, the court stated "he should not be heard to complain of lack of due process He had it." The court found the defendant guilty.

In State v. Hammond 116 N.J. Super. 244 (Cty. Ct. 1971) a notice of scheduled suspension and order of suspension for failure to appear for motor vehicle violations was mailed to defendant, but was returned undelivered to Division of Motor Vehicles by postal authorities. The defendant was charged with misstatement of fact in an application for registration of a motor vehicle (39:3-37) and application for a registration certificate during suspension (39:3-34). The defendant thereafter applied for and obtained a New Jersey registration certificate for vehicle.

While in State v. Wenof supra the defendant was found guilty that case was distinguished in Hammond. In Hammond there was insufficient evidence of any notice to Hammond of a possible revocation of his registration certificate. Therefore, there is no adequate proof to indicate that due process was satisfied in this case. Hammond, 116 N.J. Super. at 248.

NOTICE BY IN-COURT SUSPENSION

If the driver is on the suspension list because he was suspended in a Courtroom for a prior violation, grounds to defend are very limited. The most common violations which carry mandatory suspensions on first offense by the Municipal Courts are for driving while intoxicated (first offense 6-12 months), driving while suspended (up to 6 months), driving without insurance (1 year), possession of Marijuana or paraphernalia (6 months-2 years). A Municipal Court also has the power to suspend a driver's license for driving while suspended, reckless driving, excessive speeding, leaving the scene of an accident or even where the judge finds a person guilty of such a willful violation of the subtitle as shall in the court's discretion, justify such revocation (39:5-31).

If the driver's license was suspended by a court, the state in a subsequent Driving While Suspended needs to introduce into evidence only a certified abstract from the Division of Motor Vehicles. It is not necessary for the state to demonstrate that notice was received by the defendant. The defense may still challenge the suspension by introducing evidence that the prior in-court suspension was improper. Examples include defendant not notified to be in court and the court then acting without the defendant being present. Possibly, the prior suspension could be attached in the original court as being illegal and/or unconstitutional. This is permitted under State v. Laurick. 120 NJ 1 (1990)

NOTICE BY Division of Motor Vehicles

Where the driver was suspended by the Division of Motor Vehicles, the state must introduce

Notice of scheduled suspension.
Proof of mailing notice.
Order of suspension.
Proof of mailing order.
Certified motor vehicle abstract.
A certified abstract alone is not sufficient to convict if the defendant was suspended only by the Division of Motor Vehicles.

If the order of suspension was mailed on December 1, 1991 and the Driving While Suspended offense took place December 2, 1991, a good defense is that the Order did not reach his house until after the ticket for Driving While Suspended.

Many suspensions today are because people forgot to pay an insurance surcharge. Every insurance surcharge bill serves as a notice of suspension. Indigency is not a defense for failure to pay a surcharge.

DEFENSES

A valid suspension of a driver's license cannot be effectuated in the absence of a written notice to the license at his last known address, reciting the fact that the suspension will take place and the date of commencement of the suspension. State v. Kindler 191 N.J. Super. 358,360 (Law Div 1983). Failure to appear for a summons is not a substitute for the written notice required by the statute, Id at 361. The court also noted that it's research does not statutory revealing authority for the Municipal Judge to suspend driving privileges. Id at 362

Motorists suspended for any reason remains suspended until they pay a $50.00 Division of Motor Vehicles restoration fee. According to the harsh decision in State v. Zalta 217 N.J. Super. 142 (Law Div. 1987) even if a prior court imposed suspension is over 6 months on DWI, the suspension continues until actual restoration of the license.

Plea bargaining is permitted in Driving While Suspended matters. Many court adhere to the language of State v. Somma 215 N.J. Super. 142 (Law Div 1986) where the court determined that the failure to pay the $50.00 fee for restoration of the suspended driver's license does not extend the period of suspension. Many times individuals are told by a court their license is suspended for a certain number of months, but they are usually not told they must pay a restoration fee to actually get their license back. Individuals who pay a surcharge late will have their licenses suspended initially for the failure to pay. Even after the surcharge is paid they remain suspended until the $30.00 restoration fee is paid. Often, "plea" bargaining" or " alternative dispositions" can be worked out to avoid the harsh consequences of Driving While Suspended and the equitable rationale of State v. Somma is followed.

Few courts inform a driver charged with Driving While Suspended that the penalty is anything more than a $500.00 fine plus up to six months loss of license. Most courts do not warn a defendant if he pleads guilty he will have to pay Division of Motor Vehicles insurance surcharges or face other new penalties.

Few drivers are aware of the new provisions of NJAC 11:3-34, operative date April 1, 1991, which allows insurance companies to charge additional surcharge to drivers. These new insurance company surcharges are in a addition to Division of Motor Vehicles surcharges and fines. Several non MTF insurance companies have already received approval to charge between $37.00 and $218.00 for each point a driver accumulates. For Driving While Suspended pursuant to 2C N.J.R. 576 a driver is given 9 Automobile Eligibility Points.

Hundreds of drivers in 1992 with be in for a rude awakening when they discover they were dropped by their personal carrier, sent to the MTF and have to pay substantial additional "carrier" surcharges on top of Division of Motor Vehicles surcharges.

Given the difficult economic times and high cost of insurance, many drivers simply can't afford to both drive to work and pay for insurance. These drivers will often get caught driving without insurance. The mandatory suspension for this violation will be putting hundreds of drivers on the ever increasing suspension list.

PARKING ADJUDICATION ACT OFFENDER

"Scofflaws" who took their parking tickets and threw them away or forgot to pay tickets will now have these licenses eventually suspended under the Parking Offense Adjudication Act. (NJSA 39:4-139.2). If a person fails to appear or pay for a ticket, the court may give notice to the vehicle owner that the failure to appear or pay will result in suspension of driver's license. Pursuant to NJSA 39:4-139.10(b) the judge or the Division of Motor Vehicles may now suspend the driver's license of on owner license or operator who has not answered or appeared in response to a failure to appear notice or has not paid or otherwise satisfied outstanding parking from penalties.

CONTESTING PROPOSED ADMINISTRATIVE SUSPENSIONS

The DMV, prior to suspending a license, or taking specific actionagainst a driver must mail a notice to the driver informing them of the proposed suspension or other action. The proposed action to be taken against any licensee by the DMV becomes effective on the date set forth on the notice except when otherwise specified, unless the licenses or his/her attorney shall make a request, in writing, for a hearing within 25 days from the date of notice. New Jersey Administrative Code (NJAC)13:19-1.2.

NJAC 13:19-1.2 requires the request for a hearing to set forth all disputed facts, legal issues and arguments. Under NJAC 13:19-1.2, the DMV may either deny the request for a hearing, require a prehearing conference with a DMV employee, or transmit of the matter to the Office of Administrative Law for a hearing pursuant to NJAC 1:1.

The DMV employee who conducts the prehearing is referred to as a driver improvement specialist. Often a resolution of the proposed administrative action is reached between the DMV and the licensee (ie- reduce suspension period -ex 180 days to 100 days).

If the license except the resolution of the proposed administrative action, the license is to have abandoned any further opportunity to be heard

NJAC 13:19-1.8(c).

If the parties cannot reach a resolution, the matter should be submitted to the office of Administrative Law for a hearing NJAC 13:19-1.8(d)

ENHANCED PENALTIES

As set forth previously, the Driving While Suspended calls for mandatory enhanced penalties on conviction second and third offense. What counts as an offense? Both the Division of Motor Vehicles and a court can suspend a driver for driving while suspended.

In State vs. Conte, 245 NJ Super. 629 (Law Div. 1990) the court examined a case where a defendant driver had two prior administrative suspensions by the DMV pursuant to NJSA 39:5-30 and NJAC 13:19-10.8. The driver had no prior court imposed convictions.

NJSA 39:3-40 provides for penalties upon conviction. In a well reasoned opinion by Judge Robert Longhi, on trial de novo, the court stated:

The word conviction is not defined in the statute. Black's Law Dictionary defines conviction as "the final judgment in a verdict or finding of guilty..." Black's Law Dictionary (6 ed. 1990) at 333. NJSA 2C:44-4(a) defines "prior conviction of an offense" as "an adjudication by a court of competent jurisdiction that the defendant committed an offense constitutes a prior conviction," Emphasis supplied. Conviction has also been defined as " the confession of the accused in open court or the verdict returned by the jury which ascertains and publishes the fact of guilt." Tucker vs. Tucker, 101 NJ Eq. 72, 73, 137 A. 40 (Ch. 1927).

The motor vehicle statute, NJSA 39:3-40, is quasi-criminal and penal in nature and must be strictly construed against the State. State vs. Churchdale-Leasing Inc., 115 N.J. 83, 102, 557 A. 2d 277 (1989). The word conviction, as it is used in NJSA 39:3-40, refers only to a plea or a finding of guilty in a court of competent jurisdiction and not an order of suspension entered by the DMV as the result of an administrative proceeding. The two prior suspensions are not convictions and defendant must be viewed as a first offender under the statute.

State vs. Conte, 245 N.J. Super. at 631

The sentence imposed was reversed and the matter remanded for sentencing as a first offender.

Updated statute in 2002:

NJSA 39:3-40 Penalties for driving while license suspended, etc.

39:3-40. No person to whom a driver's license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked, or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal, suspension, revocation, or prohibition.

No person whose motor vehicle registration has been revoked shall operate or permit the operation of such motor vehicle during the period of such revocation.

Except as provided in subsection i. of this section, a person violating this section shall be subject to the following penalties:

a.Upon conviction for a first offense, a fine of $500.00 and, if that offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

b.Upon conviction for a second offense, a fine of $750.00, imprisonment in the county jail for not more than five days and, if the second offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and that second offense occurs within five years of a conviction for that same offense, revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

c.Upon conviction for a third offense or subsequent offense, a fine of $1,000.00, imprisonment in the county jail for 10 days and, if the third offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and that third offense occurs within five years of a conviction for the same offense, revocation of the violator's motor vehicle registration privilege in accordance with the provisions of sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5);

d.Upon conviction, the court shall impose or extend a period of suspension not to exceed six months;

e.Upon conviction, the court shall impose a period of imprisonment for not less than 45 days or more than 180 days, if while operating a vehicle in violation of this section a person is involved in an accident resulting in bodily injury to another person;

f. (1) Notwithstanding subsections a. through e., any person violating this section while under suspension issued pursuant to section 2 of P.L.1972, c.197 (C.39:6B-2), upon conviction, shall be fined $500.00, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year nor more than two years, and may be imprisoned in the county jail for not more than 90 days.

(2)Notwithstanding the provisions of subsections a. through e. of this section and paragraph (1) of this subsection, any person violating this section under suspension issued pursuant to R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a) or P.L.1982, c.85 (C.39:5-30a et seq.), shall be fined $500, shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, and shall be imprisoned in the county jail for not less than 10 days or more than 90 days.

(3)Notwithstanding the provisions of subsections a. through e. of this section and paragraphs (1) and (2) of this subsection, a person shall have his license to operate a motor vehicle suspended for an additional period of not less than one year or more than two years, which period shall commence upon the completion of any prison sentence imposed upon that person, shall be fined $500 and shall be imprisoned for a period of 60 to 90 days for a first offense, imprisoned for a period of 120 to 150 days for a second offense, and imprisoned for 180 days for a third or subsequent offense, for operating a motor vehicle while in violation of paragraph (2) of this subsection while:

(a)on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b)driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c)driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of this paragraph.

It shall not be relevant to the imposition of sentence pursuant to subparagraph (a) or (b) of this paragraph that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session;

g.In addition to the other applicable penalties provided under this section, a person violating this section whose license has been suspended pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35) or the regulations adopted thereunder, shall be fined $3,000. The court shall waive the fine upon proof that the person has paid the total surcharge imposed pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35) or the regulations adopted thereunder. Notwithstanding the provisions of R.S.39:5-41, the fine imposed pursuant to this subsection shall be collected by the Division of Motor Vehicles pursuant to section 6 of P.L.1983, c.65 (C.17:29A-35), and distributed as provided in that section, and the court shall file a copy of the judgment of conviction with the director and with the Clerk of the Superior Court who shall enter the following information upon the record of docketed judgments: the name of the person as judgment debtor; the Division of Motor Vehicles as judgment creditor; the amount of the fine; and the date of the order. These entries shall have the same force and effect as any civil judgment docketed in the Superior Court;

h.A person who owns or leases a motor vehicle and permits another to operate the motor vehicle commits a violation and is subject to suspension of his license to operate a motor vehicle and to revocation of registration pursuant to sections 2 through 6 of P.L.1995, c.286 (C.39:3-40.1 through C.39:3-40.5) if the person:

(1)Knows that the operator's license to operate a motor vehicle has been suspended for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a); or

(2)Knows that the operator's license to operate a motor vehicle is suspended and that the operator has been convicted, within the past five years, of operating a vehicle while the person's license was suspended or revoked;

i.If the violator's driver's license to operate a motor vehicle has been suspended pursuant to section 9 of P.L.1985, c.14 (C.39:4-139.10), the violator shall be subject to a maximum fine of $100 upon proof that the violator has satisfied the parking ticket or tickets that were the subject of the Order of Suspension.

Amended 1941, c.344; 1945, c.222, s.2; 1947, c.25; 1964, c.9; 1968, c.323, s.10; 1981, c.38, s.1; 1982, c.45, s.2; 1983, c.90, s.1; 1986, c.38; 1992, c.203; 1994, c.64, s.2; 1995, c.286, s.1; 1999, c.185, s.3; 1999, c.423, s.3; 2001, c.213, s.1.

39:3-40.1. Revocation of registration certificate, plates 2. a. Any motor vehicle registration certificate and registration plates shall be revoked if a person is convicted of violating the provisions of:

(1)subsection a. of R.S.39:3-40 for operating a motor vehicle during a period when that violator's driver's license has been suspended for a violation of R.S.39:4-50;

(2)subsection b. or c. of R.S.39:3-40 for operating a motor vehicle during a period when that violator's driver's license has been suspended within a five-year period; or

(3)R.S.39:4-50 for a second or subsequent offense, if such revocation is ordered by the court as authorized under that section.

This revocation of registration certificate and registration plates shall apply to all passenger automobiles and motorcycles owned or leased by the violator and registered under the provisions of R.S.39:3-4 and all noncommercial trucks owned or leased by the violator and registered under the provisions of section 2 of P.L.1968, c.439 (C.39:3-8.1), including those passenger automobiles, motorcycles and noncommercial trucks registered or leased jointly in the name of the violator and the other owner of record.

b.At the time of conviction, the court shall notify each violator that the person's passenger automobile, motorcycle, and noncommercial truck registrations are revoked. Notwithstanding the provisions of R.S.39:5-35, the violator shall surrender the registration certificate and registration plates of all passenger automobiles, motorcycles, and noncommercial truck registrations subject to revocation under the provisions of this section within 48 hours of the court's notice. The surrender shall be at a place and in a manner prescribed by the Director of the Division of Motor Vehicles pursuant to rule and regulation. The court also shall notify the violator that a failure to surrender that vehicle registration certificate and registration plates shall result in the impoundment of the vehicle in accordance with the provisions of section 4 of P.L.1995, c.286 (C.39:3-40.3) and the seizure of said registration certificate and registration plates. The revocation authorized under the provisions of this subsection shall remain in effect for the period during which the violator's license to operate a motor vehicle is suspended and shall be enforced so as to prohibit the violator from registering or leasing any other vehicle, however acquired, during that period.

c.If the violator subject to the penalties set forth in subsections a. and b. of this section for conviction of violating the provisions of R.S.39:3-40 was operating a motor vehicle owned or leased by another person and that other owner or lessee permitted that operation with knowledge that the violator's driver's license was suspended, the court shall suspend the person's license to operate a motor vehicle and revoke the registration certificate and registration plates for that vehicle for a period of not more than six months. Notwithstanding the provisions of R.S.39:3-35, the owner or lessee shall surrender the registration certificate and registration plates of that vehicle within 48 hours of the court's notice of revocation. The surrender shall be at a place and in a manner prescribed by the Director of the Division of Motor Vehicles pursuant to rule and regulation. The court also shall notify the owner or lessee that a failure to surrender the revoked registration certificate and registration plates shall result in the impoundment of the vehicle in accordance with the provisions of section 4 of P.L.1995, c.286 (C.39:3-40.3) and the seizure of said registration certificate and registration plates. Nothing in this subsection shall be construed to limit the court from finding that owner or lessee guilty of violating R.S.39:3-39 or any other such statute concerning the operation of a motor vehicle by an unlicensed driver.

L.1995,c.286,s.2; amended 2000, c.83, s.2.

N.J.S.A. 39:3-40 Driving While Suspended

Offense 39:3-40 driving while license suspended- general provision 1st Offense - $500 fine, and - driver's license suspension not to exceed 6 months -9 car insurance eligibility points for each violation $750 DMV surcharges

2nd Offense - $750 fine, and - driver's license suspension not to exceed 6 months, and - imprisonment 1- 5 days, -9 car insurance eligibility points for each violation $750 DMV surcharges and - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1000 fine, and - driver's license suspension not to exceed 6 months, and - imprisonment for 10 days, -9 car insurance eligibility points for each violation $750 DMV surcharges and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1)

Note: For all offenses under this statute that involve an accident resulting in personal injury to another, the court is required to impose a period of imprisonment for not less than 45 days, or more than 180 days. N.J.S.A. 39:3-40(e). If the accident results in the death of another person, then the defendant shall be guilty of a crime of the third degree and the defendant's driver's license shall be suspended for an additional period of one year. If the accident results in serious bodily injury to another person, then the defendant shall be guilty of a crime of the fourth degree and the defendant's driver's license shall be suspended for an additional period of one year.

Offense 39:3-40 (f) (1) [no insurance suspensions] driving while license suspended due to conviction for N.J.S.A. 39:6B-2 (driving without insurance) 1st Offense - $1000 fine, and - driver's license suspension not less than 12 months, nor more than 30 months, and - may impose incarceration not to exceed 90 days $750 DMV surcharges -9 car insurance eligibility points for each violation

2nd Offense - $1250 fine, and - driver's license suspension of not less than 12 months nor more than 30 months, and - may impose period of incarceration of not more than 90 days, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 2nd offense occurs within 5 years of a conviction for 39:3-40, then revocation of registration certificate for period driver's license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1500 fine, and - driver's license suspension of not less than 12 months nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1) Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed "notwithstanding" the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(3), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart.

Offense 39:3-40 (f) (2) [DWI suspensions] driving while license suspended due to conviction for: - 39:4-50 (driving while intoxicated), or - 39:4-50.4a (refusal to submit to chemical test), or - 39:5-30a to -30e (habitual offender) 1st Offense - $1000 fine, and -driver's license suspension of not less than 12 months, nor more than 30 months, and -incarceration of not less than 10 days, nor more than 90 days, and -revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

2nd Offense -$1250 fine, and - driver's license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, and - revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

3rd or Subsequent Offense - $1500 fine, and - driver's license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, and - revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed "notwithstanding" the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(30), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart.

Offense 39:3-40 (f) (3) [School Zone suspensions] driving while license suspended due to conviction for N.J.S.A. 39:4-50 or 39:4-50.4a, while driving in a school zone, or driving through a school crossing 1st Offense - $1000 fine, and - driver's license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 60 days nor more than 90 days $750 DMV surcharges -9 car insurance eligibility points for each violation

2nd Offense - $1250 fine, and - driver's license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 120 days nor more than 150 days - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation

3rd or Subsequent Offense - $1500 fine, and - driver's license suspension for not less than 12 months, nor more than 24 months, plus may impose additional suspension not to exceed 6 months - incarceration for 180 days, and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of violator's registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1) Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed "notwithstanding" the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(3), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart.

Offense 39:3-40 (g) [Surcharge Suspensions] driving while license suspended for failure to pay surcharges under N.J.S.A. 17:29A-35 1st Offense - $500 fine, and - driver's license suspension not to exceed 6 months, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed -9 car insurance eligibility points for each violation

2nd Offense - $750 fine, and - driver's license suspension not to exceed 6 months, and - imprisonment not more than 5 days, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed, $750 DMV surcharges -9 car insurance eligibility points for each violation and

- if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1)

3rd or Subsequent Offense - $1000 fine, and - driver's license suspension not to exceed 6 months, and - imprisonment for 10 days, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed $750 DMV surcharges -9 car insurance eligibility points for each violation

- if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period driver's license is suspended (see N.J.S.A. 39:3-40.1)

Speak with an experienced attorney to determine possible rights, defenses and mitigating factors.

CONCLUSION

A person is not automatically guilty of driving while suspended simply because the Division of Motor Vehicles claims they are suspended. The defense of a person charged with driving while suspended is not impossible. There are a number of viable defense and arguments which can be pursued to achieve a successful result. Speak with an attorney experienced in Municipal Court practice.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.

4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.

5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.

6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.

8. You must wait 5-10 years to expunge a first offense. 2C:52-3

9. You could be put on Probation.

10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30.

11. You may be required to do Community Service.

12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction.

14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

15. You lose the presumption against incarceration in future cases. 2C:44-1

16. You may lose your right to vote.

The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.

Jail for Crimes and Disorderly Conduct:

If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms.

NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years;

(2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years;

(3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years;

(4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months.

2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed:

a. (1) $200,000.00 when the conviction is of a crime of the first degree;

(2) $150,000.00 when the conviction is of a crime of the second degree;

b. (1) $15,000.00 when the conviction is of a crime of the third degree;

(2) $10,000.00 when the conviction is of a crime of the fourth degree;

c. $1,000.00, when the conviction is of a disorderly persons offense;

d. $500.00, when the conviction is of a petty disorderly persons offense;

If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500



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Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association.

Criminal and Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal motor vehicle violations.

When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule an appointment if you need experienced legal representation in a traffic/municipal court matter.

Our website www.benotguilty.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations. Providing 21+ years of excellent service to clients. Kenneth Vercammen has been a trial attorney for more than 20 years. You want to have an experienced attorney.


Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.










© Kenneth Vercammen & Associates, P.C.

Last Revised May 29, 2008



Thursday, May 22, 2008

Hot Topics in Municipal Court Practice- Forms available

NJSBA Annual Meeting
Trump Taj Mahal Casino Resort

Hot Topics in Municipal Court Practice
Thursday, May 22 2008 

8am - 9:30 am Diamond A

Could not attend? Need forms?
Send email to Kenvnjlaws@verizon.net and advise which form you would like. The form will be sent to you within 2 days, or fax us your email address 732-572-0030 fax

Name ___________________

Email ___________________
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.
Speakers: 
Paris P. Eliades, Esq. 
Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq.

Kenneth Vercammen & Associates,
Edison
Past Chair Municipal Court Section
2005 NJSBA Municipal Court Attorney
of the Year
Editor- NJ Municipal Court Law Review

CD with forms and Materials
provided to all attendees!
02 Lt of rep only.doc
02 DISC.doc
02a DISC to DMV.doc
02d Disc_Complainant.doc
03D Retainer-MUN COURT.doc
04 Hearing notice.doc
100 Cross Exam Q-DWI.doc
AG Guidelines binding.doc
Appeal Fee Bill to Client.doc
atty_guidelines_0505.pdf
Bail reduce Mt.doc
Brief post convict vacate plea.doc
Conditional Discharge Pet Cl.doc
constructive poss.doc
Court cannot handle discovery.doc
Crim interview aba.doc
crim- Specific defenses.doc
Defense Affidavit to Client.doc
DISC to Client from Prosecutor.doc
DUI Motions non disc- jury.doc
DWI- Blood defense brief.doc
DWI- expert letter.doc
DWS Fine reduced parking ticket.doc
Expungement recommend.doc
MIRANDA br.doc
More disc br.doc
Mt for Civil Reservation.doc
Mt forSlap.doc
Mt to be Relieved.doc
Mt- Dismiss No disc mun Pros.doc
Mun Ct Interview.doc
MVC_ DMV - Follow-up Hearing.doc
MVC_ DMV points for Atom.doc
No discovery dismiss Brief.doc
No Show in Court.doc
OBJ TO LAB CERT.doc
OPRA Brief Crim.doc
Order mark try or dismiss.doc
Order to be Relieved.doc
Pros- missing abstract.doc
Refusal Brief wrong statement.doc
Storm Cert priv pros.doc
Sup-Miranda.doc
SUPPRESSION MT.doc
SUPPRESSION BRIEF.doc
Chun discovery brief
www.BeNotGuilty.com

Can’t attend? Need forms?
Send email to Kenvnjlaws@verizon.net and the materials will be sent to you within 2 days, or fax us your email address 732-572-0030 fax

Name ___________________

Email ___________________

Saturday, May 10, 2008

Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)

Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
NJSBA Annual Meeting and Convention.

NJSBA Annual Meeting and Convention Annual Meeting and Convention 2008 Trump Taj Mahal Casino Resort in Atlantic City May 21 - 23. The NJ State Bar Association will hold its 2008 Annual Meeting and Convention at the Trump Taj Mahal Casino Resort, right on the Atlantic City Boardwalk. A favorite location for the NJSBA's annual conference, the boardwalk offers the Atlantic City seaside right outside the doors of the resort. Attend from May 21-22 for education, top speakers and networking with the top legal professionals in the state and your fellow NJSBA members.

Hot Topics in Municipal Court Practice Thursday, May 22 (8 - 9:30 a.m.)
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)

Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Transitional & Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)
An overview of the top 25 municipal court cases of the year and interactive discussion of the most current topics in municipal court.

Speakers: Paris P. Eliades, Esq. - Daggett Kraemer Eliades Kovach & Ursin, Sparta
Kenneth A. Vercammen, Esq. - Kenneth Vercammen & Associates, Edison

http://www.njsba.com/calendar_events/index.cfm?fuseaction=annual_mtg#207

Alcotest Update - State v. Chun
Municipal Court Practice Section NJ Institute for Continuing Legal Education (Municipal Court Practice Track)

Thursday, May 22 (1 - 2:30 p.m.)

Trial Attorney Certification: 1.5 criminal credits pending
NY CLE (Non-transitional): 1.5 professional practice credits
PA CLE: 1.5 substantive credits pending ($8 fee payable to ICLE)

An analysis of the recent Chun discussion and the documentation required in order to admit the Alcotest 7110 into evidence.

Speaker: Jeffrey E. Gold, Esq. Vice Chair, Municipal Court Practice Section Gold & Farrow, PC, Cherry Hill

Saturday, March 01, 2008

Brief to Dismiss DWI Summons Based on Police Failure to comply with NJ Attorney General Guideline on DWI /Refusal to give the defendant a copy of th

Brief to Dismiss DWI Summons Based on Police Failure to comply with NJ Attorney General Guideline on DWI /Refusal to give the defendant a copy of the Alcohol Influence Report upon arrest

The mandatory guidelines established by our Attorney General were not followed in this case. The "ATTORNEY GENERAL GUIDELINE: PROSECUTION OF DWI & REFUSAL VIOLATIONS" of January 24, 2005 requires the arresting police officer to give the defendant a copy of the Alcohol Influence Report. The police violated this new AG Guideline.



The Attorney General issued the following Guideline to all Prosecutors and Police on January 24, 2005:



TO: ALL COUNTY PROSECUTORS

ALL MUNICIPAL PROSECUTORS

FROM: PETER C. HARVEY, ATTORNEY GENERAL

SUBJECT: ATTORNEY GENERAL GUIDELINE:

PROSECUTION OF DWI & REFUSAL VIOLATIONS

DATE: January 24, 2005



Section 3 of P.L. 2004, chapter 8, 1 included a provision that the Attorney General shall promulgate guidelines concerning the prosecution of DWI and DWI refusal violations. The Legislative purpose for these Guidelines is “to promote the uniform enforcement of [the DWI and refusal statutes.]”



Therefore, pursuant to P.L. 2004, c.8, §3, and the authority granted to the Attorney General of the State of New Jersey by the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., and N.J.S.A. 2B:12-27, the following Guidelines are issued to All County and Municipal Prosecutors for the Prosecution of DWI and Refusal Violations.


These Guidelines replace all previously issued memoranda from the Division of Criminal Justice or the Attorney General, regarding the Standard (Refusal) Statements for DWI refusal,

CDL/DWI refusal and OVWI refusal. Please inform all of the police departments and law enforcement agencies in your county.

These Guidelines do not, however, replace or rescind any Attorney General Law Enforcement Directives issued regarding DWI or DWI related subjects. E.g., Attorney General........



On page 20 of the Attorney General Guideline, the defendant shall be given a copy of the Alcohol Influence Report. The police violated the Attorney General Guideline, and failed to provide the defendant, after processing, with the Alcohol Influence Report.


Guideline- Page 19:

Fulfilling the Statutory Requirements for Implied Consent by Law Enforcement

While at the law enforcement facility, the defendant should also be continuously observed. In addition, during the observation period, and prior to the administration of any chemical breath testing, the provisions of N.J.S.A. 39:4-50.2, N.J.S.A. 39:3-10.24a through e, or N.J.S.A. 12:7-55, regarding implied consent, must have been followed.

Those statutory provisions are:

#1 The police or law enforcement officer “shall inform the person
tested of his[/her] rights” to be furnished with a copy of the record
of any chemical breath tests administered. [This was not done in this case.]
This first provision is designed to inform the defendant that a record of any chemical breath tests administered will be made and that the defendant is entitled to receive a copy of that record. N.J.S.A. 39:4-50.2(b); N.J.S.A. 39:3-10.24b; N.J.S.A. 12:7-55b. That record, pursuant to

N.J.A.C. 13:51-3.6(a)2, is the “Alcohol Influence Report Form, Breathalyzer Check List.”

N.J.A.C. 13:51 Appendix. With the introduction of the Alcotest® 7110 MKIII-C, a printed record, in the form of an Alcohol Influence Report, will be automatically printed by the...



Guideline- Page 20:

Alcotest® 7110 MKIII-C. N.J.A.C. 13:51-3.6(c)2.

Following the administration of any breath tests, regardless of the results obtained, and the normal processing of a defendant, the defendant should be given a copy of the Alcohol Influence Report.



#2 The person “shall be permitted to have such samples taken and
chemical tests of his[/her] breath, urine or blood made by a person
or physician of his own selection.”


This second provision is designed to inform the defendant of his/her statutory right to obtain an independent test of their own breath, blood or urine. N.J.S.A. 39:4-50.2(c); N.J.S.A. 39:3-10.24c; N.J.S.A. 12:7-55c. State v. Jalkiewicz, 303 N.J. Super. 430, 432, 434, 435 (App. Div. 1997), questioning State v. Broadley, 281 N.J. Super. 230 (Law Div. 1992), certif. den. 135 N.J. 468 (1994); State v. Hicks, 228 N.J. Super. 541, 544 (App. Div. 1988), certif. den. 127 N.J. 324 (1990); State v. Ettore, 228 N.J. Super. at 30-1.





Guideline- Page 18: The need to obtain chemical breath test evidence, in a prompt manner, due to the speed with which alcohol is dissipated by the body is also discussed.



Guideline- Page 19: Breath samples are a nontestimonial form of evidence. State v. Macuk, 57 N.J. 1, 14 (1970). Accordingly, a defendant

does not have a Fifth Amendment right to consult with an attorney

before taking the test, nor does a defendant have a right to have an

attorney present when the test is performed. State v. Leavitt, 107

N.J. 534, 536, 540 (1987); see also, Macuk, supra, 57 N.J. at 16,

(holding that police officers are not required to give defendants

Miranda warnings prior to administration of [a B]reathalyzer test

because "fundamental reason for the Miranda rules is just not

present"). Additionally, because breath sample evidence "is

evanescent and may disappear in a few hours," State v. Dyal, 97

N.J. 229, 239 (1984), police must administer the [B]reathalyzer test

within a reasonable time after the arrest in order to obtain an

accurate reading. Leavitt, supra, 107 N.J. at 541; see also, State v.

Pandoli, 109 N.J. Super. 1, 4 (App. Div. 1970) (noting "rapidity

with which the passage of time and physiological processes tend to

eliminate evidence of ingested alcohol in the system"); State v.

Corrado, 184 N.J. Super. 561, 568 (App. Div. 1982) (holding

one-hour delay in consenting to take [a B]reathalyzer test violated

Implied Consent Law).

State v. Widmaier, 157 N.J. at 487-8.

The Defense has filed this motion to Dismiss the DWI and refusal Summons Based on Police Failure to comply with NJ Attorney General Guideline on DWI and Refusal. The police failed to abide by this mandatory instruction. Therefore, violation of an Attorney General guideline should result in dismissal.



NJSA 39:4-50.3. sets forth the Method of analyses; approval of techniques; certification of analysts; reports; forms in DWI cases in New Jersey"

"Chemical analyses of the arrested person's breath, to be considered valid under the provisions of this act, shall have been performed according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General. The Attorney General is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to make certifications of such individuals, which certifications shall be subject to termination or revocation at the discretion of the Attorney General. The Attorney General shall prescribe a uniform form for reports of such chemical analysis of breath to be used by law enforcement officers and others acting in accordance with the provisions of this act. Such forms shall be sequentially numbered. Each chief of police, in the case of forms distributed to law enforcement officers and others in his municipality, or the other officer, board, or official having charge or control of the police department where there is no chief, and the Director of the Division of Motor Vehicles and the Superintendent of State Police, in the case of such forms distributed to law enforcement officers and other personnel in their divisions, shall be responsible for the furnishing and proper disposition of such uniform forms. Each such responsible party shall prepare or cause to be prepared such records and reports relating to such uniform forms and their disposition in such manner and at such times as the Attorney General shall prescribe."

Therefore, if a Police officer fails to follow the methods and forms of the Attorney General, any breath test is invalid.



The Appellate Division recently court recognized that all Police Officers are bound by Attorney General Guidelines.

See In the Matter of William Carroll, 339 N.J. Super. 429 (App. Div. 2001) for a discussion of AG Guidelines and their enforceability. Judge [now Justice] Wallace wrote:

"In this regard we note that the Attorney General is the chief law enforcement officer of this State. N.J.S.A. 52: 17B s-98. The Legislature has authorized the Attorney General to provide for "uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State." Ibid. Consistent with this authority, the Attorney General has issued guidelines concerning the appropriate application of the criminal laws.

Our Supreme Court has acknowledged the validity of various guidelines issued by the Attorney General. See generally State v Brimage, 153 N.J. 1, 24-25 (1998) (the Attorney General was instructed to reevaluate and issue new plea offer guidelines to assist all counties in consistently applying the Comprehensive Drug Reform Act of 1997); Doe v. Poritz, 142 N.J. 1, 109-111 (1995)(holding constitutional, as modified, Attorney General's Guidelines for implementation of convicted sex offender registration and community notification statutes); Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 192 (1993) (Court cites with approval the Attorney General's Law Enforcement Drug Screening Guidelines); State v. Lagares, 127 N.J. 20, 32 (1992) (Court requires the Attorney General to issue guidelines which will assist prosecutors in rendering uniform decisions concerning enhanced drug testing)."

If a police officer fails to follow Attorney General's Guidelines on DWI and does not give the defendant a copy of the Alcohol Influence Report Form, then the DWI and/or refusal should be dismissed or reading suppressed.

Middlesex County Bar Association 3rd Annual Awards Dinner

Middlesex County Bar Association 3rd Annual Awards Dinner
On March 19, 2008, the Middlesex County Bar Association will hold its third annual awards dinner at Sunny Palace Restaurant on Route 18 South in East Brunswick. Awards will be given to bar members in the following areas: Pro Bono; Non-Litigation; Civil Trial Practice; Criminal Trial Practice; and Municipal Court Practice.

The guest speaker will be Hon. Travis L. Francis, AJSC.
The MCBA will pay tribute to these bar members for their significant contributions to their respective practice areas.
The following awards will be given:

-Pro Bono Attorney-of-the Year Henry Gurshman
-Civil Trial Practitioner-of-the-Year John Gorman
-Criminal Trial Attorney-of-the-Year Jim Nolan & Nicole Albert
-Municipal Court Practitioner-of-the-Year Kenneth Vercammen
-Young Lawyer of the Year Kimberly Yonta Aronow
-Transactional Attorney of the Year Michael Schaff

The purpose of the Awards is to recognize attorneys practicing in Middlesex County and adjacent municipalities who devote a significant portion of their law practice to their respective practice areas and exhibit one or more of the following:

- Leadership in the potential candidate’s field of practice;
- Significant, tangible contributions to the Bar, such as participation in educational panels, Bar committees, etc, pertaining to non-litigation issues;
- Contributions to the community and/or charitable endeavors;
- A record promoting participation and involvement in the MCBA and collegiality within the Association; and
- A reputation for personal and professional integrity.

The evening will commence with a cocktail hour (cash bar) at 6:00 p.m. and dinner will be served at 7:00 p.m. The cost to attend is $35 for MCBA Young Lawyers, $40 for MCBA Members and $45 for all others, in advance.
For additional information, contact the Bar Office at (732) 828-3433, ext. 102.
More details at http://www.mcbalaw.com/cde.cfm?event=186648

Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816

Notice of Claim must be served on correct Public Entity or Personal Injury case dismissed

Leidy v. County of Ocean 02-28-08
A-4127-06T2

In dismissing plaintiff's personal injury action against a public entity (County of Monmouth), the Court held that where the actual tortfeasor's identity has not been actively obscured and plaintiff has not been thwarted in his or her own diligent efforts to determine the responsible party, then plaintiff's misidentification does not constitute an "extraordinary circumstance" warranting relaxation of the Tort Claims Act 90- day time constraint, N.J.S.A. 59:8-8.

Prompt inspection of the area within a reasonable time following plaintiff's motorcycle accident would have led to identification of the County of Monmouth as the party responsible for maintaining the portion of the roadway, bordering Ocean County, where the incident occurred. Moreover, the delay in notice, occasioned by the lack of any reasonable efforts by plaintiff in the interim 90 days to ascertain ownership of the roadway, likely prejudiced defendant in its efforts to investigate the accident scene which, due to time and weather, may have changed.

Monday, February 04, 2008

Mark Champion v. David W. Dunfee, Jr. v. Kristi Kakoda

01-31-08 A-3167-06T2

We hold that a guest passenger who neither owns nor
controls the motor vehicle, who enjoys no special relationship
to, and has not substantially encouraged the wrongful behavior
of, the actual tortfeasor, owes no affirmative duty to a fellow
passenger to prevent a visibly intoxicated driver from driving
his own automobile.