Defenses to Speeding and Radar in Edison and Central NJ

Edison, NJ 08817
(732) 572-0500  http://www.njlaws.com/speed_law_nj.html?id=859&a=
39:4-98, 39:4-99 Speeding and Radar
 by Kenneth Vercammen, Esq. Edison, NJ 732-572-0500   Kenneth Vercammen's Law office represents persons charged with speeding more than 15 miles over the speed limit an other serious traffic violations throughout New Jersey.

It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt.

In every charge of a speeding violation, the complaint or summons must specify (l) the speed at which the defendant is alleged to have driven, (2) the speed which is prima facie unlawful, and (3) the time and place of the alleged violation.

A sign showing a speed limit is merely notice of the law or an ordinance or regulation prohibiting a greater speed. The sign itself does not set the speed limit. There can be no conviction for violation of the edict of a posted sign, but only for violation of the statute, ordinance, or regulation having the force of law. There are many unauthorized signs in the state which may serve as a warning but have no effect in creating an offense. Radar

Speed-measuring radar in various forms has been accepted since State v. Dantonio, l8 N.J. 570 (l955), where the N.J. Supreme Court held it is not essential that the court determine the precise speed at which the vehicle was being operated when the alleged offense occurred, and that the operator of the vehicle must be adjudged guilty if the evidence established, beyond a reasonable doubt, that the drive exceeded the statutory speed limit.

It is not necessary for the trial court to make a particular finding as to the precise speed in excess of the speed limit at which the defendant was traveling at the time of the violation. State v. Bookbinder, 82 N.J. Super. l79, l83 (App. Div. l964).

However, if the defendant is found guilty, the trial court should determine the quantum of excess was so many miles per hour in exercising its discretion as to the penalty to be imposed within the statutory limitation. The precise speed a motorist was traveling thus is material only on the question as to the penalty to be imposed, not on the question of guilt or innocence.

State v. Readding, l69 N.J. Super. 238 (Law Div. l978), restated the general rule that in order for the radar speedometer reading to be admissible into evidence, it should be established that: (l) the device is scientifically reliable; (2) the particular speedometer used in the case being tried is accurate; (3) the operator is qualified; and (4) the device was operated properly in the case being tried. How Radar Operates

In State v. Wojtkowiak, l70 N.J. Super. 44 (Law Div. l979), revd on other grounds, l74 N.J. Super. 460, Judge Wells examined in detail the K-55 Radar, and his conclusions were incorporated by the Appellate Division. This case should be read and reread for a detailed explanation of Radar by a Court.

The traffic radar method speed detection measurement depends upon the Doppler effect. Simply stated a radio wave which strikes a moving object is reflected from that object at different frequency from that of the incident wave. A radar which transmits waves and receives reflected waves can determine their frequency difference and calculate the speed of the object which produced the reflective wave.

Courts have accepted as scientifically reliable MPH Industries K-55 Traffic Radar -- the primary system employed for the purpose of measuring the speed of motor vehicles in New Jersey.

In State v. Wojtkowiak, l74 N.J. Super, 460 (App. Div. l980), the appeals court held in all future cases the state should adduce evidence at the municipal court level as to (l) the specific training and extent of experience of the officer operating the radar, (2) the calibration of the machine was checked by at least two external tuning forks both singly and in combination, and (3) the calibration of the speedometer of the patrol car in cases where the K-55 is operating in the moving mode.

Defenses to Leaving the Scene of an Accident Penalties 39:4-129 in Edison and Central Jersey

Leaving the Scene of an Accident Penalties
39:4-129. Action in case of accident [Leaving the scene]2053 Woodbridge Ave.
Edison, NJ 08817 http://www.njlaws.com/careless_reckless_driving.htm
Leaving the Scene of an Accident Penalties
39:4-129. Action in case of accident [Leaving the scene]
if injury- loss of dl for one year minimum
if property damage- (b)  The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or
other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto
as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the
requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary. Any
person who shall violate this subsection shall be fined not less than $200 nor more than $400, or be imprisoned for a period of not more
than 30 days, or both, for the first offense, and for a subsequent offense, shall be fined not less than $400 nor more than $600, or be
imprisoned for a period of not less than 30 days nor more than 90 days or both.

   In addition, a person who violates this subsection shall, for a first offense, forfeit the right to operate a motor vehicle in this State for a
period of six months from the date of conviction, and for a period of one year from the date of conviction for any subsequent offense.

Rights upon arrest in Edison and Central NJ

Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
http://njlaws.com/arrest_criminal_violation.html?id=6&a=
Rights Upon Arrest 1. Tell The Police Officer or Detective that you wish to talk to your Lawyer. Repeat this request to every officer who speaks to you.
2. Identify yourself, if asked. If the incident is related to a motor vehicle, produce your license, registration, and insurance card.
3. Beyond identifying yourself, give no other information. Answer NO other questions. SIGN NOTHING. If you are asked any other questions, reply politely, "I would rather not discuss it".
4. Call your lawyer at the first opportunity.
NOTE: If you are arrested for Drunk Driving in New Jersey, you must give breath samples before you call your Lawyer. You are not required to do field sobriety tests such as walking a straight line, Remember: Even a fish would not get caught if they kept their mouth closed. OJ remained silent and is playing golf today. [Copyright 1985-1986 Alan Marain]

The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda has not been fully complied with. State v Yough 49 NJ 587, 600-601 (1967), State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988).

Defense of School bus violation 39:4-128.1. in Edison and Central Jersey

Kenneth Vercammen, Esq.
732-572-0500    2053 Woodbridge Ave. Edison, NJ 08817
    39:4-128.1. School buses stopped for children; duty of motorists; duty of bus driver; violations; revocation of license
http://www.njlaws.com/passing_school_bus.html?id=701&a=
1. On highways having roadways not divided by safety islands or physical traffic separation installations, the driver of a vehicle approaching or overtaking a bus, which is being used solely for the transportation of children to or from school or a summer day camp or any school connected activity and which has stopped for the purpose of receiving or discharging any child, shall stop such vehicle not less than 25 feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of such highway and until a flashing red light is no longer exhibited by the bus; provided, such bus is designated as a school bus by one sign on the front and one sign on the rear, with each letter on such signs at least four inches in height.

On highways having dual or multiple roadways separated by safety islands or physical traffic separation installations, the driver of avehicle overtaking a school bus, which has stopped for the purpose of receiving or discharging any child, shall stop such vehicle not less than 25 feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of the highway and until a flashing red light is no longer exhibited by the bus.

On highways having dual or multiple roadways separated by safety islands or physical traffic separation installations, the driver of a vehicle on another roadway approaching a school bus, which has stopped for the purpose of receiving or discharging any child, shall reduce the speed of his vehicle to not more than 10 miles per hour and shall not resume normal speed until the vehicle has passed the bus and has passed any child who may have alighted there from or be about to enter said bus.

For purposes of this section, "highway" means the entire width between the boundary lines of every way whether publicly or privately maintained when any part thereof is open to the public for purposes of vehicular travel.

Whenever a school bus is parked at the curb for the purpose of receiving children directly from a school or a summer day camp or any school connected activity or discharging children to enter a school, or a summer day camp or any school connected activity, which is located on the same side of the street as that on which the bus is parked, drivers of vehicles shall be permitted to pass said bus without stopping, but at a speed not in excess of 10 miles per hour.

The driver of a bus which is being used solely for the transportation of children to or from school or a summer day camp or any school connected activity shall continue to exhibit a flashing red light and shall not start his bus until every child who may have alighted there from shall have reached a place of safety.

Defense of Shoplifting Charges in Edison

Kenneth Vercammen 732-572-0500  Shoplifting Charges, Defenses and Jail terms by Kenneth Vercammen, Esq. Edison, NJ  Shoplifting shall consist of any one or more of the following acts:
(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.

(2) For any person purposely to conceal upon his person or otherwise any merchandise offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the processes, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof.

(3) For any person purposely to alter, transfer or remove any label, price tag or marking indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment and to attempt to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of all or some part of the value thereof.

(4) For any person purposely to transfer any merchandise displayed, held, stored or offered for sale by any store or other retail merchandise establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the retail value thereof.

(5) For any person purposely to underling with the intention of depriving the merchant of the full retail value thereof.

(6) For any person purposely to remove a shopping cart from the premises of a store or other retail mercantile establishment without the consent of the merchant given at the time of such removal with the intention of permanently depriving the merchant of the possession, use or benefit of such cart.

c. Gradation. (1) Shoplifting constitutes a crime of the second degree under subsection b. of this section if the full retail value of the merchandise is $75,000.00 or more.

(2) Shoplifting constitutes a crime of the third degree under subsection b. of this section if the full retail value of the merchandise exceeds $500.00 but is less than $75,000.00.

(3) Shoplifting constitutes a crime of the fourth degree under subsection b. of this section if the full retail value of the merchandise is at least $200.00 but does not exceed $500.00.

(4) Shoplifting is a disorderly persons offense under subsection b. of this section if the full retail value of the merchandise is less than $200.00. Additionally, notwithstanding the term of imprisonment provided in N.J.S.2C:43-6 or 2C:43-8, any person convicted of a shoplifting offense shall be sentenced to perform community service as follows: for a first offense, at least ten days of community service; for a second offense, at least 15 days of community service; and for a third or subsequent offense, a maximum of 25 days of community service and any person convicted of a third or subsequent shoplifting offense shall serve a minimum term of imprisonment of not less than 90 days.
d. Presumptions. Any person purposely concealing unpurchased merchandise of any store or other retail mercantile establishment, either on the premises or outside the premises of such store or other retail mercantile establishment, shall be prima facie presumed to have so concealed such merchandise with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof, and the finding of such merchandise concealed upon the person or among the belongings of such person shall be prima facie evidence of purposeful concealment; and if such person conceals, or causes to be concealed, such merchandise upon the person or among the belongings of another, the finding of the same shall also be prima facie evidence of willful concealment on the part of the person so concealing such merchandise.

(2)"Store or other retail mercantile establishment" means a place where merchandise is displayed, held, stored or sold or offered to the public for sale;
(3)"Merchandise" means any goods, chattels, foodstuffs or wares of any type and description, regardless of the value thereof;
(4)"Merchant" means any owner or operator of any store or other retail mercantile establishment, or any agent, servant, employee, lessee, consignee, officer, director, franchisee or independent contractor of such owner or proprietor; The Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.

ROBERT J. FOEHNER, Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION, DOCKET NO. A-1971-11T3

« Citation
Data

ROBERT J. FOEHNER,

Appellant,

v.

NEW JERSEY MOTOR VEHICLE

COMMISSION,

DOCKET NO. A-1971-11T3

October 24, 2012

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Argued October 9, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the New Jersey Motor Vehicle Commission.

Linda E. Mallozzi argued the cause for appellant.

Elaine C. Schwartz, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Jennifer R. Budd, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Robert J. Foehner appeals from the Motor Vehicle Commission's (MVC) denial of an administrative hearing before imposing a 3,650-day suspension of his driver's license due to a fourth conviction for an alcohol-related offense. Because the applicable statutes and published opinions clearly support the MVC's action as a matter of law, we affirm the suspension.

The pertinent facts and procedural history are uncomplicated. On September 21, 2011 appellant was convicted of driving under the influence in the State of Arizona. Pursuant to the Interstate Driver License Compact, N.J.S.A. 39:5D-3, the MVC suspended appellant's New Jersey driving privileges because the Arizona DUI constituted appellant's fourth alcohol-related conviction. The 3,650-day suspension was issued pursuant to N.J.S.A. 39:4-50(a)(3), which requires that upon a third or subsequent DUI, a driver "shall . . . forfeit his right to operate a motor vehicle" in New Jersey "for 10 years."

The MVC asserts that appellant was convicted of his first DUI on May 28, 1986, his second on November 2, 1990, his third on December 19, 1992, and the fourth on September 21, 2011. The first three offenses occurred in New Jersey; the fourth occurred in Arizona.

As a result, on October 19, 2011, the MVC sent a suspension notice to appellant indicating that his driving privileges were scheduled to be suspended for 3,650 days because of the Arizona conviction. Printed on the second page of the notice, which included the forty most recent motor vehicle records for appellant, was a portion of appellant's driving history dating from August 17, 1992 to October 18, 2011.

Because of the incomplete information provided by the MVC, appellant requested a hearing on the proposed suspension stating, in part, "[t]here is no basis for the proposed suspension. Mr. Foehner's abstract establishes disputed material facts which support the objection to the suspension."

In a letter dated November 29, 2011, the MVC denied the hearing request and ordered the suspension, effective January 3, 2012. The MVC took the position that appellant's the hearing request did not identify any disputed material facts or legal issues, as required, but merely "indicates that you desire a hearing and your driving record does not warrant a 3,650 suspension term."

Appellant filed a Notice of Appeal on December 28, 2011 and request for a stay of the sanction pending appeal. Appellant also requested that the MVC stay the suspension pending resolution of the appeal. The MVC rejected appellant's request for a stay. We denied the stay.

On appeal, appellant notes that the driving history provided with the notice of suspension contained only one prior alcohol-related motor vehicle offense dating back to December 19, 1992. He argues that, as a matter of procedural due process, he is entitled to an agency hearing to evaluate the legal and factual bases for the imposition of a 3,650-day suspension given the lack of "necessary information upon which the appellant might discern or determine the basis for the agency's decision". We disagree.

Our scope of review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citation omitted); see alsoBrady v. Bd. of Review, 152 N.J. 197, 210 (1997).

N.J.A.C. 13:19-1.2 sets forth the requirements pertaining to administrative hearing requests. A hearing request must "specify all disputed material facts which the licensee or his or her attorney intends to raise at such hearing." N.J.A.C. 13:19-1.2(d). It must also "set forth all legal issues" intended to be raised, as well as "all arguments on those issues which the licensee wishes the [MVC] to consider."Ibid. Hearing requests are denied for failure to comply with these requirements. N.J.A.C. 13:19-1.2(e). However, no such hearing is required if a State agency is "required by any law to . . . suspend . . . a license . . . without exercising any discretion in the manner" either on the basis of a court's judgment in the matter or by law. N.J.S.A. 52:14B-11; see N.J.A.C. 13:19-1.13(d); see also State of New Jersey, Div. of Motor Vehicles v. Pepe, 379 N.J. Super. 411, 419 (App. Div. 2005) (no hearing required when there exists no disputed facts or law).

Here, appellant has failed to identify any disputed material facts. He does not contest that he has been convicted of DUI on four occasions, nor does he raise any legal issues to be addressed by the MVC. Rather, the appellant merely contends that the MVC did not provide him with proof of all four of his DUI convictions when it initially issued the suspension notice.¹

S

ince no disputed issues of material fact existed, and no legal issues were raised, no evidentiary hearing was required before the mandatory suspension was imposed. Pepe, supra, 379 N.J. Super. at 419.

Affirmed.

1 It appears that the MVC sent appellant's counsel appellant's Certified Driver's Abstract on February 7, 2012, following her request for this document.

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