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. 

39:4-96. Reckless driving; punishment

39:4-96.     Reckless driving; punishment  
   A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving and be punished by imprisonment in the county or municipal jail for a period of not more than 60 days, or by a fine of not less than $50.00 or more than $200.00, or both. 

   On a second or subsequent conviction he shall be punished by imprisonment for not more than three months, or by a fine of not less than $100 or more than $500, or both.  

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.njicle.com/viewprogram.aspx?catid=2115&progid=8056 .

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

39:3-40 Jail if someone injured while driving while license suspended

39:3-40  Jail if someone injured while driving while license suspended
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; 

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 subsections i. and j. 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 at least one but 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 and imprisonment in the county jail for 10 days. If the third or a subsequent offense involves the operation of a motor vehicle during a period when the violator's driver's license is suspended and the third or subsequent 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) In addition to any penalty imposed under the provisions of subsections a. through e. of this section, 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)In addition to any penalty imposed under 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)In addition to any penalty imposed under 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.(Deleted by amendment, P.L.2009, c.224);

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 or reciprocity privilege 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 or reciprocity privilege 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.

In any case where a person who owns or leases a motor vehicle knows that the operator's license or reciprocity privilege of the person he permits to operate the motor vehicle is suspended or revoked for any violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), the person also shall be subject to the following penalties: for a first or second offense, a fine of $1,000, imprisonment for not more than 15 days, or both; and for a third or subsequent offense, a fine of $1,000, imprisonment for not more than 15 days, or both, and forfeiture of the right to operate a motor vehicle over the highways of this State for a period of 90 days;

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) or for failure to comply with a time payment order, the violator shall be subject to a maximum fine of $100 upon proof that the violator has paid all fines and other assessments related to the parking violation that were the subject of the Order of Suspension, or if the violator makes sufficient payments to become current with respect to payment obligations under the time payment order;

j.If a person is convicted for a second or subsequent violation of this section and the second or subsequent offense involves a motor vehicle moving violation, the term of imprisonment for the second or subsequent offense shall be 10 days longer than the term of imprisonment imposed for the previous offense.

For the purposes of this subsection, a "motor vehicle moving violation" means any violation of the motor vehicle laws of this State for which motor vehicle points are assessed by the chief administrator pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5).