Robertson DL suspension should not be stayed after conviction unless fin...

DL suspension should not be stayed after conviction unless findings of fact.  State v Robertson 438 N.J.Super.47 (App. Div. 2014)
 In this appeal from a DWI conviction, the court rejects defendant's argument that the Alcotest results should have been excluded because he was denied discovery of certain repair records, which were created by the Alcotest's manufacturer, and certain downloaded data, which the State routinely erases. The court concludes the records were not discoverable under Rule 7:7-7, nor did they constitute Brady material.
 The court also addressed the unexplained decisions of both the municipal court and the Law Division to stay defendant's license suspension pending appeal. The court instructs trial courts that any stay of a license suspension after a DWI conviction should be supported by adequate findings of fact and conclusions of law, and should comply with standards governing the grant of a stay pending appeal set forth in Garden State Equality v. Doe, 216 N.J. 314, 320 (2013).

Campbell DWI statute and Alcotest not unconstitutional. State v. Campbell

DWI statute and Alcotest not unconstitutional. State v. Campbell 436 N.J. Super. 264 (App. Div. 2014)
Defendant's prosecution was based upon an Alcotest reading of his blood alcohol content ("BAC") above the per se level of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing the admission of Alcotest BAC results when the prerequisites for such admissibility are shown by "clear-and-convincing" proof, coupled with the statute's conclusively incriminating treatment of a BAC at or above .08, improperly combine to relieve the State of its constitutional burden of proving a driver's guilt by the more rigorous standard of proof "beyond a reasonable doubt."
The Court rejects defendant's claim of unconstitutionality. The argument fails to distinguish the State's threshold burden of establishing the Alcotest's evidential admissibility from the State's ultimate burden at trail of establishing defendant's guilt of a per se offense beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC results has been denied, a defendant can still present competing evidence or arguments at trial to persuade the court that the testing procedures were flawed and that his guilt has not been proven by the more stringent reasonable doubt standard.

39:3-29.8(f) Improper Reproduction of I.D. cards

39:3-29.8(f)  Improper Reproduction of I.D. cards
It shall be unlawful for any person:

f. To photograph, photostat, duplicate, or in any way reproduce any identification card or facsimile thereof in such a manner that it could be mistaken for a valid identification card, or to display or have in his possession any such photograph, photostat, duplicate, reproduction, or facsimile unless authorized by the provisions of this act;

 Fine $0-$1000

Plus possible jail 39:3-29.10 states

     Any person who violates any of the provisions of this act is a disorderly person. Imprisonment up to 6 months 2C:43-3; 2C:43-8

39:3-29.8(e) Utilization of ID card for forbidden acts

39:3-29.8(e) Utilization of ID card for forbidden acts

 

It shall be unlawful for any person:

e. To do any act forbidden or fail to perform any act required by this act in reference to identification cards;

Penalty Fine $0-$1000

39:3-29.10 states

     Any person who violates any of the provisions of this act is a disorderly person. Imprisonment up to 6 months 2C:43-3; 2C:43-8

Testifying in a Municipal Court Case

Testifying in a Municipal Court Case

Compiled by KENNETH A. VERCAMMEN, Esq. of Edison from various sources

         Courts, Police and Prosecutors have an increased commitment to addressing the needs of litigants. You may be unfamiliar with court procedures and have fears and uncertainties about what is expected or required of being a litigant. This article, compiled from suggestions of prosecutor’s offices, provides a brief explanation of what to expect in court.

         Under the New Jersey Court Rules, a New Jersey Attorney can negotiate with the Prosecutor to attempt to reduce penalties. However, the Prosecutor is not required to offer a plea bargain. The person charged is not required to accept a plea bargain. Therefore, the case will be scheduled for a trial. The decision on whether of not to testify at trial is solely the defendant’s. That decision cannot be made by the attorney.

         Preparing for Court.

         You are reminded that every time you go to Court or come to your attorney’s office, you should bring your entire file with all documents and letters you have, plus everything received from our office, the Court, police, or DMV/MVC applicable to your case. In addition to bringing your file, on the day of court we recommend that you bring a magazine or some light reading because the courts often take recesses and delays often occur. Many courts will not let you operate a cell phone in the courtroom.

            You must be promptly present in court and prepared to proceed at that time. Please call the court or your attorney approximately 24 hours before this hearing to confirm that the court has not adjourned your hearing.

                                                        

            When you arrive, please check in. Hearing times are often delayed. If by chance, I or the attorney in my office handling the hearing is not at the hearing room when you arrive, please do not panic. We will soon arrive to handle the case. We often travel from another court. Do not call the law office if you do not see the attorney right away unless there is an emergency. Usually we will go to speak directly with the Prosecutor or Court Clerk prior to going into the courtroom. Please sit in the courtroom/hearing room close to the front row until we arrive. Do not wait in the lobby or outside. In municipal court/traffic cases/criminal , do not speak with the Prosecutor, wait for your attorney to arrive. Do not leave the court and go home until instructed by our office. Fines are expected to be paid the day of court. If you will have to pay court costs or a fine, bring a checkbook or cash. Most towns and state agencies still do not accept credit cards.

        

COURTROOM PROCEEDINGS AT TRIAL:

     One of the fundamental rules in a criminal case is that both the prosecution and defense have an opportunity to question the litigant. There are specific rules of evidence, which must be followed by the court. At times, these rules may seem unnecessary or frustrating but they are directed toward one goal- to determine the truth in the case. Some guidelines for you to remember:

GUIDELINES FOR MUNICIPAL COURT:

     1. Prior to testifying, try to prepare yourself by recalling the incident in your mind, but do not memorize your testimony.

     2. You are sworn to tell the truth. Tell it by answering accurately about what you know.

     3. Listen carefully to the questions asked and think before speaking. If you do not understand the question, ask that it be repeated or explained. Do not look for assistance from the attorney when you are on the stand. If you need help, ask the Judge.

     4. Speak clearly and loudly.

     5. Answer only the question asked, directly and simply. Do not volunteer information.

     6. Do not guess or speculate. If you do not know the answer, be sure to say so.  If you give an estimate, make sure everyone understands you are estimating.

     7. Do not answer if there is an objection.

     8. Do not lose your temper. Upon cross-examination, remain calm and composed.

          

     9. Always be courteous, even if the attorney questioning you appears to be discourteous. Being polite makes a good impression on the court and jury. Do not try to be "smart" or evasive.

    10. Be serious in and around the courtroom. Avoid joking.

    11. Neat appearance and proper dress are important.

    12. If the question is about distance or time and your answer is only an estimate, be sure to say that it is only an estimate.

  

    13. Leave the stand with confidence, knowing that you have presented the truth to the best of your ability.       

 Fears/Threats

    If you have any fears about your involvement in your case, contact your own town's local police department. On extremely rare occasions, you may receive a threat. If you are threatened, immediately contact your law enforcement agency to get immediate assistance.

SUBPOENA

     A Subpoena is a Court Order directing you to be present at the time and place stated. You may receive your subpoena by mail or in person. When you receive a subpoena to appear in court, you are required by law to attend. Be sure to bring the subpoena to court.

WHERE DO I GO?       

     You will find that most court notices and subpoenas will request that you report to the Court on the date set for your appearance.

GET COMFORTABLE

    Get a good night's rest. Dress conservatively. Your normal business attire is probably about right.  Be early. Give yourself a few minutes to experience the room in which you are about to testify. It is going to be a strange environment for you, so walk around. Get used to the lighting, the acoustics, and the distance your voice might have to travel.

JUST THE FACTS

         Leave your impressions from film, television and other folklore at home.  In the real world, the attorney seeking your testimony wants from you but one thing; the facts. What you saw. What you said. What you did.

         In limited circumstances, what you heard. Unless you are asked to do so, do not draw conclusions. Unless you were called as an expert witness, keep your opinions for another day.

 RULES TO REMEMBER

         Rule 1.  If you are asked what time it is, give the time.  Don't offer instructions on how to build a watch.

        Listen to the question, answer that question, then wait for the next one.  When they run out of questions, your testimony is over.

         Don't answer a question you think was asked, should be asked, or want to be asked.   And take your time.  As with baseball and other matters of importance, there is no clock.  Your testimony is very important, that's why you were called in the first place. There is no hurry. As in golf, there are no prizes for speed, just accuracy.       

        Rule 2.  If you do not understand a question, respond by saying "I do not understand the question.''  Have counsel rephrase the question, explain or define any word that you don't understand.

         That's what you mean by ''I do not understand the question.'' It's not impolite. You are not comparing education. You just don't understand the question. If counsel cannot rephrase the question so you can understand and adequately respond, that's not your problem. Being a witness is hard enough.

        Rule 3.  If you knew the answer some time ago, but do not recall at the moment, say ''I do not recall'' Not everyone can remember which shoes they wore the second Tuesday of last month. There is no disgrace in failing to recall certain details, especially when they are remote in time.

       Your testimony is very important, that's why you were called in the first place.

         Rule 4.  If you are asked a question, and you do not know the answer, say ''I Do not know.''

         Too many witnesses think they have to know, or are expected to know the answer to practically everything asked of them while on the stand. No one can be expected to know everything. If you seem to, your entire testimony may appear rehearsed and unconvincing. When you don't know, you don't know. SAY SO..

Such a reply is entirely appropriate.

             Rule 5.  Tell the truth.

You saw what you saw. You did what you did. If someone else has a different version of these events, well, someone else has a different version of these events. In the end, the judge or jury will sort it all out.  

            Rule 6.  Be yourself.

         As you would converse with a friend or neighbor, speak in your own words and use your own vocabulary. Answer the questions as naturally as you can. You don't want to sound like an actor delivering memorized lines.

         There is no getting around it; while giving testimony, you are on stage.  Everyone in the room, especially trial counsel, is watching you testify. They not only listen to your word, but also watch how you present them. You must be as relaxed and natural as possible. Body language is a powerful communication tool. Use it properly.

              Speak up. What you say will be taken down by a tape recorder, sometimes later transcribed onto a printed page. This is called ''making a record.''  Consider two limitations in this process;

         1. Your testimony has to be verbal. It is difficult to transcribe a nod of the head or shrug of the shoulders. Don't spread your hands apart and claim ''About this much.''  If the answer is ''two and one half feet,'' say so.

         2. Only one person can speak at a time. Pace your responses so as to avoid ''talking over'' the attorney asking the questions.

HELP YOURSELF

         Give straight, direct and specific answers whenever possible.  Depending upon the question being asked, try and avoid needless qualifiers like ''In my opinion,'' ''I guess,'' ''I think,'' and ''I believe'' JUST THE FACTS. Any reservations displayed on direct examination will come back to you on cross.

         If the answer is ''yes'', ''blue'' or ''I don't know,'' SAY SO.

Don't guess, exaggerate, or speak in broad, sweeping terms. Try not to generalize, and do not explain anything unless specifically instructed to do so.

         If you make a mistake, or give the wrong answer, STOP.. As soon as you realize you have given the wrong information, or left something out, STOP. Tell the attorney you made a mistake, say ''I made a mistake. May I correct myself.'' Clear the record then and there. It is much better than to have the opposing attorney question you about it later on cross examination.

         If there is an objection, or if the judge or another attorney interrupts your testimony; FREEZE. Do not say another word until instructed to do so.  The lawyers will argue out the problem on the spot. Wait until told to proceed.

         There is no need to ''squeeze in'' an answer during this process.  Let the lawyers work it out, that's what they do.

HELP THE COURT

         Some attorneys or prosecutors lose their manners right after the bar exam. Some have the personality of a briefcase. For others, this would be an improvement. Do your best anyway, and try to be polite. If you have a bad temper, leave it in the elevator.

         Do not engage in a battle of wits. You can't win. It's not because you don't get to ask questions. You are gathered for the purpose of finding the truth, not to judge who can best exchange sarcastic remarks.

Careless driving, Reckless driving

Careless driving, Reckless driving, leaving the scene, failure to report

39:4-96.     Reckless driving; punishment 

    39:4-96.  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. 

More info at http://www.njlaws.com/reckless_driving.html

5 points

      A Municipal Court also has the power to suspend a driver's license for reckless driving, excessive speeding, or where the judge finds a person guilty of such a willful violation as shall in the court's discretion, justify such revocation (NJSA 39:5-31).

         State v. Moran  202 NJ 311 (2010) The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law. 

            39:4-97.     Careless driving 

    39:4-97.  A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving. 

39:4-129.    Action in case of accident  [Leaving the scene]

http://www.njlaws.com/leaving_the_scene.html

    39:4-129.  (a)  The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene 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 $500 nor more than $1,000 or be imprisoned for a period of 180 days, or both, for the first offense, and for a subsequent offense shall be fined not less than $1,000 nor more than $2,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section. 

   In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State. 

   (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. 

   (c)  The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person. 

   In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection. 

   (d)  The driver of any vehicle which knowingly collides with or is knowingly involved in an accident with any vehicle or other property which is unattended resulting in any damage to such vehicle or other property shall immediately stop and shall then and there locate and notify the operator or owner of such vehicle or other property of the name and address of the driver and owner of the vehicle striking the unattended vehicle or other property or, in the event an unattended vehicle is struck and the driver or owner thereof cannot be immediately located, shall attach securely in a conspicuous place in or on such vehicle a written notice giving the name and

address of the driver and owner of the vehicle doing the striking or, in the event other property is struck and the owner thereof cannot be immediately located, shall notify the nearest office of the local police department or of the county police of the county or of the State Police and in addition shall notify the owner of the property as soon as the owner can be identified and located. Any person who violates this subsection shall be punished as provided in subsection (b) of this section. 

   (e)  The driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property shall be presumed to have knowledge that he was involved in such accident, and such presumption shall be rebuttable in nature.

   For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident. 

39:4-130.    Immediate notice of accident; written report  [Failure to report]

    39:4-130.  The driver of a vehicle or street car involved in an accident resulting in injury to or death of any person, or damage to property of any one person in excess of $500.00 shall by the quickest means of communication give notice of such accident to the local police department or to the nearest office of the county police of the county or of the State Police, and in addition shall within 10 days after such accident forward a written report of such accident to the division on forms furnished by it.  Such written reports shall contain sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved and such information as may be necessary to enable the director to determine whether the requirements for the deposit of security required by law are inapplicable by reason of the existence of insurance or other circumstances.  The director may rely upon the accuracy of the information contained in any such report, unless he has reason to believe that the report is erroneous. The division may require operators involved in accidents to file supplemental reports of accidents upon forms furnished by it when in the opinion of the division, the original report is insufficient.  The reports shall be without prejudice, shall be for the information of the division, and shall not be open to public inspection.  The fact that the reports have been so made shall be admissible in evidence solely to prove a compliance with this section, but no report or any part thereof or statement contained therein shall be admissible in evidence for any other purpose in any proceeding or action arising out of the accident. 

   Whenever the driver of a vehicle is physically incapable of giving immediate notice or making a written report of an accident as

required in this section and there was another occupant in the vehicle at the time of the accident capable of giving notice or making a

report, such occupant shall make or cause to be made said notice or report not made by the driver. 

   Whenever the driver is physically incapable of making a written report of an accident as required by this section and such driver is

not the owner of the vehicle, then the owner of the vehicle involved in such accident shall make such report not made by the driver. 

   A written report of an accident shall not be required by this section if a law enforcement officer submits a written report of the

accident to the division pursuant to R.S. 39:4-131. 

   Any person who knowingly violates this section shall be fined not less than $30 or more than $100. 

   The director may revoke or suspend the operator's license privilege and registration privilege of a person who violates this section. 

   For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of

personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident. 

   Amended 1951, c.23,s.72; 1953,c.187; 1967,c.189,s.2; 1983,c.193,s.1; 1994,c.183,s.2.