STATE OF NEW JERSEY VS. WILLIAM REHMANN, JR. A-3291-09T3

STATE OF NEW JERSEY VS. WILLIAM REHMANN, JR.

A-3291-09T3 ______________________________

Submitted February 3, 2011 - Decided

Before Judges Cuff, Fisher and Simonelli.

On appeal from the Superior Court of New

Jersey, Law Division, Atlantic County,

Municipal Appeal No. 0073-09.

Law Offices of Joseph A. Levin, attorneys

for appellant (Joseph A. Levin, on the

brief).

Theodore F.L. Housel, Atlantic County

Prosecutor, attorney for respondent (Jack J.

Lipari, Assistant Prosecutor, of counsel and

on the brief).

The opinion of the court was delivered by

FISHER, J.A.D.

In this appeal, defendant argues the Confrontation Clause

of the Sixth Amendment was violated when the State, in

attempting to prove his blood alcohol content, relied upon the

APPROVED FOR PUBLICATION

April 29, 2011

APPELLATE DIVISION

April 29, 2011

2 A-3291-09T3

testimony of an expert who supervised but did not actually

perform the test on defendant's blood sample. We reject this

argument and affirm.

Following a motor vehicle accident, in which defendant

sustained personal injuries, defendant was issued summonses for

driving while under the influence of alcohol (DWI), N.J.S.A.

39:4-50, reckless driving, N.J.S.A. 39:4-96, careless driving,

N.J.S.A. 39:4-97, and failure to wear a seatbelt, N.J.S.A. 39:3-

76.2(f). At trial in municipal court, the State called Mark W.

Maxwell, a forensic scientist, to testify about defendant's

blood alcohol content (BAC). Maxwell testified that he did not

actually perform the test but instead observed another chemist,

Major Mitchell, examine defendant's blood sample with a gas

chromatograph; Mitchell was being retrained and required

supervision. Maxwell signed the laboratory report, certifying

the accuracy of the testing.

Defendant also argued, on the basis of his own expert's

testimony, that there was no scientific support for Maxwell's

application of a standard deviation of only five percent to the

results obtained from the gas chromatograph, which placed

defendant's BAC at .081, and above the legal limit. Defendant's

expert, the former Chief Forensic Scientist for the New Jersey

State Police Forensic Laboratories, testified that a deviation

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figure between nine and ten percent should have been applied,

and if so, the result would place defendant's BAC below the

legal limit.

The municipal judge rejected defendant's argument that the

State's failure to call Mitchell violated the Confrontation

Clause. He also rejected the testimony of defendant's expert

and convicted defendant of a per se DWI violation, N.J.S.A.

39:4-50. As a third time offender, defendant was sentenced to a

180-day jail term; the municipal judge also imposed a ten-year

suspension of his operator's license and registration, a $1006

fine, and other financial penalties. The other summonses were

dismissed.

Defendant appealed to the Law Division. Judge Robert

Neustadter rejected all of defendant's arguments, including the

claim of a violation of the Confrontation Clause, in finding

defendant guilty of DWI; he imposed the same jail sentence and

other penalties as had the municipal judge.

Defendant appealed to this court, presenting the following

arguments:

I. THE TRIAL COURT COMMITTED REVERSIBLE

ERROR BY ADMITTING TESTIMONY AND THE LAB

REPORT INTO EVIDENCE THROUGH A CHEMIST THAT

DID NOT PERFORM THE TESTING, AS THE ADMISSION

OF SUCH EVIDENCE VIOLATED DEFENDANT'S

SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES

UNDER THE UNITED STATES CONSTITUTION, AS

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WELL AS DEFENDANT'S CONCOMITANT RIGHTS UNDER

THE NEW JERSEY CONSTITUTION.

II. THE TRIAL COURT ERRED, IN ACCEPTING THE

STATE'S PROFFERED EVIDENCE REGARDING THE

DEVIATION IN TESTING, THEREBY RULING THAT

SUFFICIENT EVIDENCE EXISTED TO PROVE A PER

SE VIOLATION OF DRIVING WHILE INTOXICATED

UNDER N.J.S.A. 39:4-50a(2).

We find insufficient merit in Point II to warrant discussion in

a written opinion. R. 2:11-3(e)(2). We also reject Point I for

the following reasons.

We start with the fundamental premise that the

Confrontation Clause contained in the Sixth Amendment, which

applies to the states by way of the Fourteenth Amendment,1

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him." The Supreme Court of the United States has held

that the Confrontation Clause bars the admission of

"[t]estimonial statements of witnesses absent from trial" except

"where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine."

Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369,

158 L. Ed. 2d 177, 197 (2004).

1Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L.

Ed. 2d 923, 927-28 (1965). In light of the disposition of this

appeal, we need not consider whether our state constitution's

Confrontation Clause, N.J. Const. art. I, ¶ 10, should be

interpreted more expansively than its federal counterpart.

5 A-3291-09T3

The use of laboratory certificates was soon examined in the

wake of Crawford's limitation on the use of out-of-court

statements. In Melendez-Diaz v. Massachusetts, 557 U.S. __, 129

S. Ct. 2527, 174 L. Ed. 2d 314 (2009), the Court considered

whether the Confrontation Clause permitted, over defendant's

objection, the admission of "affidavits reporting the results of

forensic analysis[,] which showed that material seized by the

police and connected to the defendant was cocaine." Id. at __,

129 S. Ct. at 2530, 174 L. Ed. 2d at 319.2 The Court held that

the certificates of analysis in question were testimonial

because they constitute "solemn declaration[s] or affirmation[s]

made for the purpose of establishing or proving some fact." Id.

at __, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. As a result,

the Court concluded that "[t]he Sixth Amendment does not permit

the prosecution to prove its case via ex parte out-of-court

affidavits." Id. at __, 129 S. Ct. at 2542, 174 L. Ed. 2d at

332.

Melendez-Diaz has had no significant impact on prosecutions

in this State. Prior to Melendez-Diaz, we recognized the

accused's right to confront the author of a BAC certificate.

2Specifically, the Court considered a Massachusetts statute that

permitted the admission of "certificates of analysis" as "prima

facie evidence of the composition, quality, and the net weight

of the narcotic analyzed." Id. at __, 129 S. Ct. at 2531, 174

L. Ed. 2d 320 (quoting Mass. Gen. Laws, ch. 111, § 13).

6 A-3291-09T3

See State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007);

State v. Berezansky, 386 N.J. Super. 84, 89 (App. Div. 2006).

And in 1987, the Legislature enacted a procedure that requires

pretrial notice, and consent, before a laboratory certificate

may be used at trial, N.J.S.A. 2C:35-19. The Supreme Court

recognized that its holding in Melendez-Diaz would not adversely

effect such procedures. Id. at __ n.3, 129 S. Ct. at 2534 n.3,

174 L. Ed. 2d at 323 n.3. But new difficulties, not previously

experienced by our courts, have followed in Melendez-Diaz's

wake, in particular the constitutional sufficiency of a witness

being called to testify about the laboratory results reached by

another.

In 2010, the Supreme Court of New Mexico twice examined

this "surrogate witness" problem. In State v. Bullcoming, 226

P.3d 1, 6 (N.M. 2010), the Court considered the admission of

testimony from one state analyst as to the results of a gas

chromatography examination performed by another analyst, who was

on unpaid leave. Because, in the court's view, the examination

involved no "independent judgment" or "particular methodology,"

and just warranted the operator to transcribe the results from

the gas chromatograph machine, it determined that any qualified

analyst could testify as to its results; in essence, the court

determined that the analyst on leave "was a mere scrivener, and

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[d]efendant's true 'accuser' was the gas chromatograph machine

which detected the presence of alcohol in [d]efendant's blood,

assessed [d]efendant's BAC, and generated a computer print-out

listing its results." Id. at 8-9. As a result, the court

concluded that the witness could provide the machine's results

because the information itself is not subject "to the

constraints of the Confrontation Clause" and is something that

experts in the field reasonably rely upon. Id. at 10. The

Supreme Court of the United States granted certiorari to review

that determination, Bullcoming v. New Mexico, __ U.S. __, 131 S.

Ct. 62, 177 L. Ed. 2d 1152 (2010), but has not yet ruled.

On the same day it decided Bullcoming, the Supreme Court of

New Mexico found a violation of the Confrontation Clause in a

slightly different circumstance in State v. Aragon, 225 P.3d

1280 (N.M. 2010). The facts in Aragon reveal that police

executed a search warrant and seized two clear plastic bags

containing whitish, crystal substances. Id. at 1282. At trial,

the prosecution called Eric Young, a chemist, who analyzed one

bag, to testify not only about the contents of that bag but also

the contents of the second bag, which was examined by another

chemist, Andrea Champagne. Ibid. Over objection, the trial

court admitted Champagne's report into evidence and allowed

Young to testify about Champagne's findings. Id. at 1282-83.

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Relying on Melendez-Diaz, the court held that Champagne's report

was testimonial, and its admission without Champagne's testimony

would "open[] wide the door to avoidance of cross-examination."

Id. at 1287 (quoting Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.

Ct. 477, 481, 87 L. Ed. 645, 650 (1943)). The Aragon Court also

determined that Young's testimony about Champagne's findings was

barred by the Confrontation Clause, holding that "[e]xperts and

their opinions are not fungible when the testifying expert has

not formed an independent conclusion from the underlying facts

or data, but merely restates the hearsay opinion of a nontestifying

expert." Id. at 1291.

Our courts have yet to consider this surrogate-witness

problem. After careful consideration, we have no hesitation in

agreeing with Aragon that experts and their opinions are not

fungible; to hold otherwise would make a mockery of the

Confrontation Clause. We thus agree with the argument that the

Confrontation Clause is not satisfied by calling just anyone to

the stand to testify about laboratory tests or other scientific

results. A "straw man" will not do. The State must provide a

witness who has made an independent determination as to the

results offered.3 The right of cross-examination must be

3See United States v. Darden, 656 F. Supp. 2d 560, 561 (D. Md.

2009) (holding the right of confrontation was not violated by

(continued)

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meaningful and is not satisfied when the State calls a witness

whose knowledge is limited to the four corners of the laboratory

certification produced and executed by another.4

(continued)

the testimony of a supervising toxicologist instead of the

testimony of the lab technicians who actually conducted the

tests on the blood); Vann v. State, 229 P.3d 197, 199-200

(Alaska App. 2010) (finding no violation where the lab

technician testified as to all five samples but only tested

three because she interpreted the data from other samples, and

the conclusions were her own); Smith v. State, 28 So.3d 838,

853, 855 (Fla. 2009) (finding no violation even though the State

failed to present the biologists who performed the DNA tests

because the testifying supervisor "formulated her own

conclusions from the raw data"); Reddick v. State, 679 S.E. 2d

380, 382 (Ga. App. 2009) (finding no violation despite the fact

that the testifying expert performed only one of two tests

because she reviewed both tests, came to her own independent

conclusion, and was entitled to base her opinion on data

collected by others); People v. Johnson, 940 N.E.2d 264, 266-70

(Ill. App. 2010) (finding no violation even though the

testifying expert did not conduct the tests because she based

her opinion on an independent review of the file).

4Our disposition of this appeal does not require a determination

of whether, as held in Bullcoming, it is the gas chromatograph

machine that is defendant's true accuser, and we, thus, need not

determine whether the results obtained from such a machine are

not constrained by the Confrontation Clause so long as someone

with expertise as to its operation is called to testify. In

State v. Chun, 194 N.J. 54, 146-47, cert. denied, __ U.S. __,

129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Court found

insufficient for confrontation purposes the notion that the raw

data generated by a diagnostic machine is the statement of the

machine and not its operator. The Court's consideration of that

notion, however, was rendered in the context of determining the

admissibility of the results of the Alcotest, which, "reports a

present, and not a past, piece of information or data" in the

circumstance where "nothing that the operator does can influence

the machine's evaluation of the information or its report of the

data." Id. at 147. The record here does not permit a

(continued)

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Here, the State called Maxwell to prove defendant's BAC.

Although Mitchell, and not Maxwell, operated the gas

chromatograph in examining defendant's blood sample, Maxwell

testified that he supervised the test. He claimed he had

personal knowledge of the equipment and the manner in which the

tests were performed and that he drew his own conclusions from

the information provided by the gas chromatograph. Indeed,

Maxwell executed the laboratory certification, thereby swearing

that it "fairly and accurately documents the type and results of

the analysis performed," that he is "the person responsible for

the analysis and the conclusions set forth in the" report, that

"the equipment used to perform the . . . analysis . . . was

functioning properly," and that the "test procedures used are

accurate, reliable, objective in nature, and performed on a

routine basis within the laboratory." In addition, Maxwell

testified that he observed Mitchell conduct the tests and was

with him "every step of the way" as if he performed the tests

himself because Mitchell was being retrained and, consequently,

was not allowed to test the samples by himself. The records

simultaneously created during the testing supported Maxwell's

assertions; Mitchell's initials appear next to the word

(continued)

determination as to whether a similar conclusion may be reached

about the gas chromatograph and its operation.

11 A-3291-09T3

"operator," and Maxwell's initials appear in the lower right

hand corner of each page, memorializing that he observed "the

physical movement of the sample into the vial." These records

further demonstrate that the testing was a joint effort.

Because he was the author of the laboratory certificate and

because he supervised another's operation of the gas

chromatograph, Maxwell was the appropriate person to be called

to testify about the results of the testing of defendant's blood

sample.

We lastly conclude that the State was not required to

produce Mitchell in addition to Maxwell to satisfy defendant's

confrontation rights. "[I]t is not the case, that anyone whose

testimony may be relevant in establishing . . . authenticity of

the sample, or accuracy of the testing device, must appear in

person as part of the prosecution's case." Melendez-Diaz,

supra, 557 U.S. at __ n.1, 129 S. Ct. at 2532 n.1, 174 L. Ed. 2d

at 322 n.1. Maxwell was able to thoroughly respond to all

questions posed about the testing and the meaning and

significance of the results obtained. The State was not

obligated to call Mitchell.

For all these reasons, we reject defendant's argument that

the Confrontation Clause was violated in these circumstances.

Affirmed.

Procedures Governing the Private Collection of Municipal Court Debt March 31, 2011

Administrative Office of the Courts

GLENN A. GRANT, J.A.D. Acting Administrative Director of the Courts

www.njcourts.com • Phone: 609-984-0275 • Fax: 609-984-6968

To:

From: Subj: Date:

Municipal Court Judges Municipal Court Directors Municipal Court Administrators

Glenn A. Grant, J.A.D. Procedures Governing the Private Collection of Municipal Court Debt March 31, 2011

On January 16, 2010, L. 2009, c. 233 was signed into law. Among other provisions, the law authorizes the governing body of a municipality or the governing body of a county having a central municipal court to enter into a contract with a private collection agency or firm for the purpose of collecting outstanding municipal court debt. Pursuant to the legislation, an administrative fee, not to exceed 22% of the amount collected, is to be paid to the private collection agency or firm to pay for the cost of collection. The law further provides that the use of private collection agencies for these purposes shall be governed by rules and procedures adopted by the Supreme Court.

I am pleased to attach a copy of the Supreme Court Procedures Governing the Private Collection of Municipal Court Debt Under L. 2009, c. 233. This document, which codifies the procedures for using private collection agencies to collect outstanding municipal court debt, was approved by the Supreme Court at its March 8, 2011 Administrative Conference and is intended to standardize practices. In addition to specifying the procedures to be followed by municipal courts, the document provides guidance for participating municipalities and private collection agencies and firms. The document also outlines procedures to be followed by the Administrative Office of the Courts.

Of particular importance is that municipalities must receive approval from this office prior to entering into a contract with a private collection agency or firm (see Procedure 6.1). Additionally, only cases in which the court has exhausted all of its enforcement remedies are eligible for collection. As defined in Procedure 6.2, a court has exhausted its enforcement remedies when a defendant is delinquent on a time payment order and his/her case has been in one of the following statuses for a minimum of one year: the defendant’s driver’s license has been suspended, the defendant’s vehicle registration has been suspended, or a warrant has been issued for the defendant’s arrest.

Please feel free to forward a copy of these procedures to your governing body. For convenience, an electronic copy is available to municipal leaders and the public through the Judiciary’s Internet site, which can be accessed at www.njcourtsonline.com. It has also been posted on the Judiciary’s Infonet site (on the Municipal Court Services home page), which is available to court staff.

Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037

If you have any questions regarding these procedures, please contact Debra Jenkins, Assistant Director for Municipal Court Services at 609-984-8241.

enclosure

cc:

Chief Justice Stuart Rabner Assignment Judges Presiding Judges-Municipal Courts Steven D. Bonville, Chief of Staff AOC Directors and Assistant Directors Robert W. Smith, Director

Debra Jenkins, Assistant Director Trial Court Administrators Municipal Division Managers Daniel Smith, Chief

Steven A. Somogyi, Chief Carol A. Welsch, Assistant Chief Gurpreet M. Singh, Special Assistant

Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037

G.A.G.

SUPREME COURT PROCEDURES GOVERNING THE PRIVATE COLLECTION OF MUNICIPAL COURT DEBT UNDER L. 2009, C. 233

Promulgated March 31, 2011

Table of contents________________________________________

Preface 1. 2. 3.

4.

5. 6. 7. Appendix A. 1..

Purpose Definitions

Process Overview

Obtaining Administrative Director of the Court’s Authorization to Utilize a Private Collection Agency

Responsibilities of the Administrative Office of the Court (AOC) Responsibilities of the Municipality/Municipal Court Responsibilities of Counties with a Central Municipal Court

Guidelines for Contracting with a Private Collection Agency 1.1 General

1.2 Subcontractors 1.3 Reporting 1.4 Insurance 1.5 Access to Judiciary Data

L. 2009, c. 233

Preface

The New Jersey Judiciary, Municipal Court Services Division, is releasing procedures and guidelines for implementing L. 2009, c. 233, Private Collection of Municipal Court Debt.

The law permits the governing body of the municipality or county to authorize the assessment of a fee by a private collection agency or firm, not to exceed 22% of the amount collected, to be paid by the defendant to the private collection agency for the purpose of paying for the cost of collection. The new law also authorizes the Administrative Director of the Courts to contract with a private agency or firm to collect any outstanding monies payable to the Superior Court, the Tax Court, or the municipal courts.

The law clarifies that the only municipal court cases that may be sent to a private collection agency are those where the municipal court has made a final determination of guilt, the municipal court has exhausted all judicial enforcement remedies, and the Administrative Director of the Courts has authorized private collection.

Further, the law provides that the use of private collection agencies shall be governed by rules and procedures adopted by the Supreme Court.

Appendix B.

1.0

2.0

SUPREME COURT PROCEDURES GOVERNING THE PRIVATE COLLECTION OF MUNICIPAL COURT DEBT UNDER L. 2009, C. 233 [Procedures Promulgated March 31, 2011]

Purpose

1.1 Herein are procedures for the private collection of municipal court debt in order to implement the provisions of L. 2009, c. 233 (“the statute”), as set forth in appendix B, which authorizes municipalities and counties with a central municipal court to contract with private collection agencies to collect outstanding municipal court debt.

1.2 These procedures provide guidance to municipalities, counties, municipal courts and private collection agencies consistent with the provisions of the statute.

Definitions

2.1 “ACS” means the Automated Complaint System, which is a computer system operated by the New Jersey Judiciary to track all the non-traffic complaints filed in New Jersey’s municipal courts.

2.2 “Adjudicated case” means a case in which the court has made a final determination of guilt (for example, a finding of guilty, an acceptance of a guilty plea).

2.3 “Administrative fee” means the fee authorized by the municipality or county, not to exceed 22% of the amount collected, to be assessed by a private collection agency to pay for the costs of collection as authorized by N.J.S.A. 40:48-5a and N.J.S.A. 40:23-6.53.

2.4 “AOC” means the New Jersey Administrative Office of the Courts.

2.5 “ATS” means the Automated Traffic System, which is a computer system operated by the New Jersey Judiciary to track all the traffic complaints filed in New Jersey’s municipal courts.

2.6 “Blanket surety bond” for the purposes of these procedures means broad insurance covering a number of projects or employees which protects the insured against financial loss.

2.7 “Central municipal court” means a municipal court established by county ordinance pursuant to N.J.S.A. 2B:12-1(e), which adjudicates cases filed by agents of the county health department, members of the county police department and force, or county park police system, or such other cases within its jurisdiction referred by the vicinage Assignment Judge pursuant to the Rules of Court.

2.8 “Civil judgment form” for the purposes of these procedures means a document for use by the municipal court in filing a civil judgment against the debtor in Superior Court for the debtor’s failure to pay debt.

2.9 “COLL” means a four digit code in the New Jersey Judiciary’s ATS and ACS systems indicating that a defendant’s case is in collection status.

2.10 “Delinquent time payment” means a situation in which a defendant has failed to comply with a court-ordered time payment plan (see time payment).

2.11 “FTP/SFTP” means ‘File Transfer Protocol/Secure File Transfer Protocol’, a standard communications protocol that allows two separate entities or agencies to exchange files electronically in a uniform and trusted manner.

2.12 “Municipal court” means an inferior court of limited jurisdiction established pursuant to N.J.S.A. 2B:12-1.

2.13 “New Jersey Judiciary” means the judicial branch of State government, which is constitutionally entrusted with the administration of all courts within the State of New Jersey, including, but not limited to, the municipal courts.

2.14 "Outstanding monies" means delinquent fees, fines, costs, surcharges, and other penalties or assessments imposed by a municipal court that are owed after a final determination of guilt by the municipal court.

2.15 “Page Center” means an electronic reporting software program used by the New Jersey Judiciary that contains municipal court reports and notices.

2.16 “Private collection agency” for the purposes of these procedures means any private agency or firm that engages in the collection of any debts, or

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which regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another.

2.17 “Time payment” means a payment schedule approved by the court whereby the defendant agrees to pay the money owed to the court in installments over a court-approved period of time.

3.0 Process Overview

3.1 Municipal courts shall attempt to make collections of outstanding monies via “all judicial enforcement remedies permitted by law or court rule.” N.J.S.A. 2B:19-6(a).

3.2 After exhausting these remedies, a municipality or county may request authorization from the Administrative Director of the Courts to collect unpaid outstanding monies by entering into a contract with a private collection agency.

3.3 The authorization of the Administrative Director of the Courts shall be contingent upon the municipality or county demonstrating to the Administrative Director of the Court’s satisfaction that the municipality or county shall adhere to the procedures set forth in this document.

3.4 Upon receipt of authorization from the Administrative Director of the Courts to do so, the municipality or county may contract with a private collection agency in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., and its applicable regulations.

3.5 Prior to implementation of the contract, the municipality or county shall send to the Administrative Director of the Courts a copy of the contract with the private collection agency, which sets forth, among other provisions, the amount of the administrative fee to paid by the debtor, and any documents proposed to be used as part of the services performed by the private collection agency.

3.6 The municipality or county may authorize the assessment of a fee, not to exceed 22% of the amount collected, to be assessed by the private collection agency to pay for the costs of collection.

3.7 The private collection agency shall instruct the debtor to make all payments, including the administrative fee, directly to the municipal court.

3.8 The municipal court shall forward all private collection agency administrative fees processed during the previous month to the private collection agency.

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This process will be carried out through the provisions detailed below.

4.0 Obtaining Administrative Director of the Court’s Authorization to Utilize a Private Collection Agency

4.1 Municipalities or counties shall submit a request for the Administrative Director of the Courts’ authorization to the following address: Administrative Office of the Courts; Municipal Court Services Division; PO Box 986; Trenton, New Jersey 08625-0037.

4.2 Requests shall provide information and documentation demonstrating that the municipal court has exhausted all judicial enforcement remedies permitted by law or court rule and shall contain a specific request for authorization to utilize the services of a private collection agency for the purposes of collecting unpaid monies.

4.3 The municipality or county shall demonstrate to the Administrative Director of the Courts’ satisfaction that it shall adhere to the Guidelines contained in Appendix A.

4.4 The Administrative Director of the Courts shall respond to the municipality’s or county’s request in one of the following manners:

4.4.1 4.4.2 4.4.3

Provide authorization to enter into a contract with a private collection agency; or

Request further information from the municipality or county in order to make a determination; or

Deny the municipality’s or county’s request to enter into a contract with a private agency.

5.0 Responsibilities of the Administrative Office of the Courts (AOC)

5.1 The AOC shall provide timely review of all requests for authorization to use a private collection agency.

5.2 The AOC shall generate regularly scheduled files (daily and weekly) to be placed on a File Transfer Protocol (FTP) computer server for private collection agencies to access and download to their computer systems. The files shall contain information on the cases being forward to the private collection agency for collection.

5.3 The AOC shall generate regularly scheduled reports (daily and weekly) to be available on Page Center, which the municipal court can send to the

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private collection agency. The report shall contain information on the cases being forward to the private collection agency for collection.

5.4 The AOC may conduct an evaluation of any or all of the cases provided to the private collection agency pursuant to the contract between the private collection agency and the municipality or county.

6.0 Responsibilities of the Municipality/Municipal Court

6.1 Prerequisites for municipality entering into contract with private collection agency:

The following requirements must be met in order for the governing body of a municipality to enter into contract with a private collection agency to collect delinquent fees, fines, costs, surcharges and other penalties or assessments imposed by a municipal court:

a) There has been a final determination of guilt by the municipal court;

b) The municipal court has exhausted all judicial enforcement remedies permitted by law or court rule; and

c) The municipality has obtained the authorization of the Administrative Director of the Courts to collect the outstanding monies through a private collection agency.

6.2 Exhaustion of all judicial enforcement remedies

A municipal court is deemed to have exhausted all of its enforcement remedies when a defendant is delinquent on a time payment and the defendant’s case has been in one of the following statuses for a minimum of one year:

a) The defendant’s driver’s license has been suspended; or b) The defendant’s vehicle registration has been suspended; or c) Awarranthasbeenissuedfordefendant’sarrest.

6.3 Upon receipt of authorization from the Administrative Director of the Courts to contract with a private collection agency, the municipality may contract with a private collection agency in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., and its applicable regulations.

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6.4 Prior to implementing the provisions of the contract, the municipal court judge and representatives from the municipality and the private collection agency shall meet to discuss the implementation of procedures, clarification of billing and other processes relating to the contract. This meeting shall take place within 30 days of signing the contract, unless otherwise agreed upon by the parties.

6.5 All written notices, letters and telephone scripts to be used by the private collection agency shall be approved by the municipal court judge prior to their use.

6.6 When the municipality satisfies the prerequisites set forth in Section 6.1, above, the municipal court shall send a final notice to the defendant indicating that the case will be transferred to a collection agency if the matter is not satisfactorily addressed within 30 days.

6.7 If the matter has not been addressed to the court’s satisfaction within the 30 day period, the municipal court may forward the case to the private collection agency.

6.8 Once a case has been transferred to the private collection agency for collection, it will be considered in “collection account status” (as indicated by “COLL” in the New Jersey Judiciary’s state computer system).

6.9 The municipality may authorize the assessment of an administrative fee, not to exceed 22% of the amount collected, by the private collection agency to pay for the costs of collection.

6.10 The municipal court shall forward all administrative fees processed during the previous month to the private collection agency on a monthly basis.

7.0 Responsibilities of Counties with a Central Municipal Court

7.1 Prerequisites for a county with a central municipal court entering into contract with a private collection agency:

The following requirements must be met in order for the governing body of a county to enter into contract with a private collection agency to collect delinquent fees, fines, costs, surcharges and other penalties or assessments imposed by a central municipal court:

a) There has been a final determination of guilt by the central municipal court; and

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b) The central municipal court has exhausted all judicial enforcement rules permitted by law or court rule.

7.2 Exhaustion of all judicial enforcement remedies

A central municipal court is deemed to have exhausted all of its enforcement remedies when a defendant is delinquent on a time payment and the defendant’s case has been in one of the following statuses for a minimum of one year:

a) The defendant’s driver’s license has been suspended; or b) The defendant’s vehicle registration has been suspended; or c) Awarranthasbeenissuedfordefendant’sarrest.

7.3 If the county has satisfied the prerequisites set forth in Section 7.1, above, the county may contract with a private collection agency in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., and its applicable regulations.

7.4 Prior to implementing the provisions of the contract, the central municipal court judge and representatives from the county and the private collection agency shall meet to discuss the implementation of procedures, clarification of billing and other processes relating to the contract. This meeting shall take place within 30 days of signing the contract, unless otherwise agreed upon by the parties.

7.5 All written notices, letters and telephone scripts to be used by the private collection agency shall be approved by the central municipal court judge prior to their use.

7.6 When the county satisfies the prerequisites set forth in Section 7.1, above, the central municipal court shall send a final notice to the defendant indicating that the case will be transferred to a collection agency if the matter is not satisfactorily addressed within 30 days.

7.7 If the matter has not been addressed to the court’s satisfaction within the 30 day period, the central municipal court may forward the case to the private collection agency.

7.8 Once a case has been transferred to the private collection agency for collection, it will be considered in “collection account status” (as indicated by “COLL” in the New Jersey Judiciary’s state computer system).

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7.9 The county may authorize the assessment of an administrative fee, not to exceed 22% of the amount collected, by the private collection agency to pay for the costs of collection.

7.10 The central municipal court shall forward all administrative fees processed during the previous month to the private collection agency on a monthly basis.

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APPENDIX A 1.0 Guidelines for Contracting with a Private Collection Agency

In contracting with a private collection agency, the municipality or county shall ensure that the private collection agency adheres to the following guidelines.

1.1 General

1.1.1

1.1.2

1.1.3

1.1.4

1.1.5 1.1.6 1.1.7

The private collection agency shall comply with all applicable federal, state and local laws and New Jersey court rules, including, but not limited to, the Federal Fair Debt Collection Practices Act, 15, U.S.C.A. §§1692 – 1692p.

The private collection agency shall ensure the confidentiality of all records received from the AOC or the municipal court. These records are the property of the Judiciary and may not be used by the private collection agency for any other purpose.

The private collection agency shall allow employees of the municipal court and the AOC secure access to municipal court collection accounts on the private collection agency’s computer systems.

The private collection agency shall provide to the municipal court all manuals, handbooks and documentation for the specified system services and websites. The private collection agency shall also be required to provide accessories and supplies as may be necessary.

All system services and websites developed in response to these regulations shall be available for demonstration at the municipal court prior to the start of debt collection.

The private collection agency shall institute collection activities in accordance with these regulations on all debts received from the municipal court.

The private collection agency or any of its employees may not be a creditor, an officer or an employee of the municipality or county that contracts with the private collection agency.

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1.1.8 1.1.9

1.1.10 1.1.11 1.1.12 1.1.13

1.1.14 1.1.15

1.1.16

The private collection agency and its personnel may not, in any way, represent themselves as employees of the municipality, county, State, municipal court or the New Jersey Judiciary.

The private collection agency shall be responsible for training its staff in the relevant law governing collection agencies, the due process remedies available to debtors, and these procedures and guidelines, so that its staff can converse knowledgeably with debtors about their accounts.

Upon learning that a debtor is deceased, the private collection agency shall notify the municipal court and shall immediately cease all collection efforts with respect to that debtor.

The private collection agency shall complete and submit to the municipal court a civil judgment form for every case returned uncollected.

The private collection agency may not undertake any litigation in regard to its collection activities under its contract with the municipality or county.

The private collection agency shall accept electronic files from the AOC on behalf of the municipal court or reports from the municipal court identifying cases selected for collection. The private collection agency shall be responsible for converting AOC supplied information or report data from the municipal court to the private collection agency’s computer system.

The private collection agency shall instruct the debtor to make all payments, including the administrative fee, directly to the municipal court.

The private collection agency shall maintain individual records by the debtor’s name, driver’s license number and social security number, where available. Records shall contain notations for both correspondence and telephone contact. Correspondence shall be stored electronically and the municipal court shall have secure access to the correspondence.

The private collection agency shall have the ability to obtain the most recent addresses of persons who owe money from outstanding time payment orders. The municipality or county and the private collection agency shall negotiate the specifics of this in the contract.

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1.1.17 The private collection agency shall retain appropriate records of all payments and case status information reported by the municipal court in order to provide a clear audit trail for the municipal court and to settle disputes that may arise from processing and collection activities.

1.1.18 The private collection agency shall discontinue all collection activities immediately upon notification that the debtor’s account is paid in full.

1.1.19 Termination or suspension of the contract shall be done in accordance with the provisions contained in the contract established with the private collection agency.

1.1.20 Upon termination or suspension of the contract, the private collection agency shall provide the AOC with a timely report of the final status of all current collection cases.

1.2 Subcontractors

1.2.1

1.2.2

1.2.3

1.2.4

The private collection agency may contract with a third party subcontractor to perform collection services under the negotiated contract between the municipality or county and the private collection agency.

Subcontracting of any work by the private collection agency shall not relieve the private collection agency of its full obligations under contract. The private collection agency shall notify and receive the approval of the municipality or county before hiring any subcontractor for work specified in the contract.

The subcontractor shall comply with all applicable federal, state and local laws, New Jersey court rules and procedures, including, but not limited to, the Federal Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 – 1692p. which apply to the contract.

The subcontractor or any of its employees may not be a creditor, an officer or an employee of the municipality or county that has contracted with the private collection agency.

1.3 Reporting

1.3.1 The private collection agency shall forward to the municipal court on a timely basis all statistical data requested by the municipal court in any format required. The municipal court shall have the

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1.3.2

1.3.3 1.3.4

1.3.5

1.3.6

right to prescribe forms or electronic files which the private collection agency shall use to report collection and status of accounts. Minimum reporting requirements are as follows:

a) A list in last name sequence of all open accounts indicating the status of those accounts. The report shall also indicate the private collection agency’s efforts and results for obtaining address information.

b) A list in last name sequence of all payment information transmitted by the municipal court to the private collection agency since the previous report.

c) A list of accounts against which collection efforts have begun, including recommended actions to be taken regarding problem collection accounts.

The private collection agency shall provide all reports as required by the contract in accordance with the agreed upon schedule for providing each.

The private collection agency shall provide revenue estimates for annual budget purposes, as requested by the municipal court.

The private collection agency shall instruct debtors to notify it of any address or name changes. The private collection agency shall note these changes in its file, in addition to maintaining the name and address given by the municipal court. The private collection agency shall promptly notify the municipal court of any name or address changes of which it becomes aware.

The contract between the parties shall include a provision for the private collection agency to report uncollected debt to an independent credit reporting agency. The contract between the parties shall also include the conditions that must be satisfied before sending such matters to an independent credit reporting agency.

If the private collection agency has reported an uncollected debt to an independent credit reporting agency, upon satisfaction of the debt, the private collection agency shall immediately notify the independent credit reporting agency of the satisfaction.

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1.4 Insurance 1.4.1

1.4.2

1.4.3

1.4.4

The private collection agency shall agree to furnish insurance naming the municipality or county and the Judiciary as additional insured or as named insured in all insurance coverage. The private collection agency shall also agree to hold the municipality or county, and the Judiciary, their officers, agents and employees harmless from any and all claims made against the municipality or county, Judiciary, their officers, agents, and employees, which arise out of any action or omission of the private collection agency or any of its officers, agents, subcontractors or employees, and any and all claims which result from any condition created or maintained by the private collection agency, or any of its officers, agents, subcontractors or employees, which condition was not specified to be created or maintained by the contract. The agreement to hold the municipality or county, and the Judiciary, their officers, agents, subcontractors or employees harmless shall not be limited to the limits of liability insurance required under the provisions of these guidelines.

The private collection agency shall have its personnel bonded for not less than the estimated total of the yearly amount collected or provide a blanket surety bond in an amount not less than that same amount protecting the municipality or county from loss.

The private collection agency shall furnish to the municipality or county and the Judiciary a certificate of insurance naming the municipality or county and the Judiciary as an additional insured covering the work as required in these specifications as evidence that the policies of insurance required above shall be maintained in force for the entire duration of the work performed under this agreement. The certificate of insurance shall indicate that the insurance policy contain a clause that requires the insurance company to notify the municipality or county and the municipal court thirty (30) days before the cancellation date of the insurance policy. Copies of any policy endorsements must be provided to the municipality or county and the Judiciary.

The agency shall take out and maintain, during the life of this contract, such public liability and property damage insurance and shall protect it, the municipality or county and the Judiciary, their officers, agents, and employees, from claims for damage and personal injury, including death, as well as claims for property

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1.5

damage which may arise from the agency's operations under this contract. The amount of such insurance shall be as follows:

a) Public liability insurance in an amount specified by the municipality for injuries, including death, for any one person and subject to the same limit for each person in an amount not less than an amount specified by the municipality or county as a result of one occurrence.

b) Property damage insurance in an amount specified by the municipality or county.

Access to Judiciary Data

1.5.1

The Administrative Director of the Courts may immediately suspend without notice the private collection agency’s access to Judiciary computer systems if any of the private collection agency’s practices pose a threat to or compromise the security or data integrity of ATS/ACS, any of its components or any of the public and quasi- public agencies that exchange automated information with ATS/ACS.

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APPENDIX B

CHAPTER 233

AN ACT concerning private contracts for the collection of certain debts owed to the government and amending P .L.1995, c.9, P .L.2000, c.126, P .L.1983, c.208, and N.J.S.40A:4-39.

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

1. Section 6 of P.L.1995, c.9 (C.2B:19-6) is amended to read as follows:

C.2B:19-6 Transfer of matters involving the collection of monies. 6. a. All matters involving the collection of monies in the Superior Court and Tax Court

which have not been resolved in accordance with an order of the court may be transferred, pursuant to court rule, to the comprehensive enforcement program for such action as may be appropriate. As an alternative to, or in addition to, the use of the comprehensive enforcement program, the Administrative Director of the Courts may contract with a private agency or firm to collect any outstanding monies payable to the Superior Court, the Tax Court, or the municipal courts. Outstanding monies payable to a municipal court means monies owed after a final determination of guilt by a municipal court and only when the municipal court has exhausted all judicial enforcement remedies permitted by law or court rule. The use of private collection agencies to collect outstanding monies payable to the Superior Court, the Tax Court and municipal courts shall be governed by rules and procedures adopted by the Supreme Court. The Administrative Director of the Courts may authorize the assessment of an administrative fee by a private agency or firm not to exceed 22% of the amount collected to be paid by the defendant to the private collection agency to pay for the costs of collection.

b. (1) A municipal court may request that all matters which have not been resolved in accordance with an order of that court be transferred to the comprehensive enforcement program in accordance with the provisions of section 9 of P.L.1995, c.9 (C.2B:19-9) for such action as may be appropriate. All monies collected through the comprehensive enforcement program which result from the enforcing of orders transferred from any municipal court shall be subject to the 25% deduction authorized pursuant to section 4 of P.L.1995, c.9 (C.2B:19- 4) except for monies collected in connection with the enforcement of orders related to parking violations.

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(2) (Deleted by amendment, P.L.2009, c.233) c. The Chief Administrator of the New Jersey Motor Vehicle Commission may refer

matters of surcharges imposed administratively under the New Jersey Merit Rating Plan in accordance with the provisions of section 6 of P.L.1983, c.65 (C.17:29A-35) which have not been satisfied to the comprehensive enforcement program in accordance with the procedures established pursuant to section 4 of P.L.1997, c.280 (C.2B:19-10) to be reduced to judgment and for such additional action as may be appropriate. All monies collected through the comprehensive enforcement program which result from the collection of these surcharge monies shall be subject to the 25% deduction authorized pursuant to section 4 of P.L.1995, c.9 (C.2B:19-4).

d. (1) At the request of the Public Defender, the Clerk of the Superior Court shall refer every unsatisfied lien, filed by the Public Defender, to the comprehensive enforcement program for collection. All monies collected through the comprehensive enforcement program which result from the collection of these liens shall be subject to the deduction authorized pursuant to section 4 of P.L.1995, c.9 (C.2B:19-4).

(2) Upon satisfaction of a public defender lien through the comprehensive enforcement program, the comprehensive enforcement program shall notify the Clerk of the Superior Court within 10 days of satisfaction and the satisfaction of the lien shall be entered in the Superior Court Judgment Index.

2. Section 37 of P.L.2000, c.126 (C.40:23-6.53) is amended to read as follows:

C.40:23-6.53 Contracts for collection of delinquent fees, fines. 37. The governing body of any county may enter into a contract with a private agency or

firm for the purpose of collecting delinquent fees, fines, costs, surcharges, and other penalties or assessments imposed, after a final determination of guilt, by a central municipal court established pursuant to subsection e. of N.J.S.2B:12-1. The use of private agencies or firms to collect delinquent fees, fines, costs, surcharges and other penalties or assessments imposed by a central municipal court shall be in accordance with rules or procedures adopted by the Supreme Court. Any such contract shall be made pursuant to the provisions of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.). The governing body of any county may authorize the assessment of a fee by a private agency or firm not to exceed 22% of the amount collected to be paid by the debtor to the private agency or firm to pay for the costs of collection.

3. Section 1 of P.L.1983, c.208 (C.40:48-5a) is amended to read as follows:

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C.40:48-5a Contract for collection services between municipality, private entity. 1. The governing body of any municipality may enter into contract with a private agency or firm for the purpose of collecting delinquent fees, fines, costs, surcharges and other penalties or assessments imposed, after a final determination of guilt, by a municipal court. The governing body of any municipality may proceed only when the court has exhausted all judicial enforcement remedies permitted by law or court rule and the Administrative Director of the Courts has authorized collection through a private agency or firm. The use of private agencies or firms to collect delinquent fees, fines, costs, surcharges, and other penalties or assessments imposed by a municipal court shall be in accordance with rules or procedures adopted by the Supreme Court. Any such contract shall be made and awarded pursuant to the provisions of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.). The governing body of any municipality may authorize the assessment of a fee by a private agency or firm not to exceed 22% of the amount collected to be paid by

the debtor to the private agency or firm to pay for the costs of collection. 4. N.J.S.40A:4-39 is amended to read as follows:

Anticipation of dedicated revenues. 40A:4-39. a. In the budget of any local unit, dedicated revenues anticipated during the

fiscal year from any dog tax, dog license, revenues collected pursuant to N.J.S.18A:39-1.2, solid fuel license, sinking fund for term bonds, bequest, escheat, federal grant, motor vehicle fine dedicated to road repairs, relocation costs deposited into a revolving relocation assistance fund established pursuant to section 2 of P.L.1987, c.98 (C.20:4-4.1a), fee revenues collected in connection with recreation programs operated pursuant to section 2 of P.L.1999, c.292 (C.40:48-2.56), receipts from franchise assessments levied pursuant to section 4 of P.L.1995, c.173 (C.40A:12A-53) to be retained by the municipality, refund payments from a joint insurance fund deposited into a joint insurance revolving fund established pursuant to section 12 of P.L.1996, c.113 (C.40A:10-36.2), fee revenues collected in connection with the “Attorney Identification Card Program” pursuant to section 1 of P.L.2009, c.11 (C.40A:4-22.2), fee revenues imposed on delinquent amounts owed to the county or municipality and collected pursuant to section 37 of P.L.2000, c.126 (C.40:23- 6.53) (as amended by section 2 of P.L.2009, c.233) or section 1 of P.L.1983, c.208 (C.40:48- 5a) (as amended by section 3 of P.L.2009, c.233), and, subject to the prior written consent of the director, other items of like character when the revenue is not subject to reasonably accurate estimate in advance, may be included in said budget by annexing to said budget a statement in substantially the following form:

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"The dedicated revenues anticipated during the year ....... from ........ (here insert one or more of the sources above, as the case may be) are hereby anticipated as revenue and are hereby appropriated for the purposes to which said revenue is dedicated by statute or other legal requirement."

b. Dedicated revenues included in accordance with this section shall be available for expenditure by the local unit as and when received in cash during the fiscal year. The inclusion of such dedicated revenues shall be subject to the approval of the director, who may require such explanatory statements or data in connection therewith as the director deems advisable for the information and protection of the public.

5. This act shall take effect immediately. Approved January 16, 2010.

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39:4-92.2 Procedure for motorist approaching stationary authorized emergency vehicle, tow truck, highway maintenance or emergency service vehicle.

39:4-92.2 Procedure for motorist approaching stationary authorized emergency vehicle, tow truck, highway maintenance or emergency service vehicle.

1. a. The operator of a motor vehicle approaching a stationary authorized emergency vehicle as defined in R.S.39:1-1 that is displaying a flashing, blinking or alternating red or blue light or, any configuration of lights containing one of these colors, shall approach the authorized emergency vehicle with due caution and shall, absent any other direction by a law enforcement officer, proceed as follows:

(1)Make a lane change into a lane not adjacent to the authorized emergency vehicle if possible in the existing safety and traffic conditions; or

(2)If a lane change pursuant to paragraph (1) of subsection a. of this section would be impossible, prohibited by law or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

b.The operator of a motor vehicle approaching a stationary tow truck as defined in section 1 of P.L.1999, c.396 (C.39:3-84.6) that is displaying a flashing amber light or a stationary highway maintenance or emergency service vehicle that is operated by the State, an authority or a county or municipality and displaying flashing yellow, amber, or red lights shall approach the vehicle with due caution and shall, absent any other direction by a law enforcement officer, proceed as follows:

(1)Make a lane change into a lane not adjacent to the tow truck or highway maintenance or emergency service vehicle if possible in the existing safety and traffic conditions; or

(2)If a lane change under paragraph (1) of subsection b. of this section would be impossible, prohibited by law or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

c.A violation of this section shall be punished by a fine of not less than $100 and not more than $500.