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

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


Driving While Suspended in New Jersey

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

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 The statute also prohibits the operation of a motor vehicle whose registration has been revoked.

PENALTIES

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

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

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

There are two types of license suspension :

1. Court imposed suspension

2. Administrative / Division of Motor Vehicles suspension

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

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

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

THE STATE MUST SHOW DUE PROCESS AND ADEQUATE NOTICE

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

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

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

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

NOTICE BY IN-COURT SUSPENSION

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

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

NOTICE BY Division of Motor Vehicles

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

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

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

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

DEFENSES

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

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

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

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

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

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

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

PARKING ADJUDICATION ACT OFFENDER

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

CONTESTING PROPOSED ADMINISTRATIVE SUSPENSIONS

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

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

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

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

NJAC 13:19-1.8(c).

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

ENHANCED PENALTIES

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

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

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

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

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

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

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

Updated statute in 2002:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

Consequences of a Criminal Guilty Plea

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

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

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

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

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

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

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

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

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

9. You could be put on Probation.

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

11. You may be required to do Community Service.

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

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

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

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

16. You may lose your right to vote.

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

Jail for Crimes and Disorderly Conduct:

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

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

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

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

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

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

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

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

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

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

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

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

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



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Meet with an experienced Attorney to handle your important legal needs.
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Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended.

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

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

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

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


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










© Kenneth Vercammen & Associates, P.C.

Last Revised May 29, 2008

Hot Topics in Municipal Court Practice- Forms available

NJSBA Annual Meeting
Trump Taj Mahal Casino Resort

Hot Topics in Municipal Court Practice
Thursday, May 22 2008 

8am - 9:30 am Diamond A

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

Name ___________________

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

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

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

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

Name ___________________

Email ___________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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



TO: ALL COUNTY PROSECUTORS

ALL MUNICIPAL PROSECUTORS

FROM: PETER C. HARVEY, ATTORNEY GENERAL

SUBJECT: ATTORNEY GENERAL GUIDELINE:

PROSECUTION OF DWI & REFUSAL VIOLATIONS

DATE: January 24, 2005



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



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


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

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

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



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


Guideline- Page 19:

Fulfilling the Statutory Requirements for Implied Consent by Law Enforcement

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

Those statutory provisions are:

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

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

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



Guideline- Page 20:

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

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



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


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





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



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

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

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

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

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

(holding that police officers are not required to give defendants

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

because "fundamental reason for the Miranda rules is just not

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

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

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

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

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

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

with which the passage of time and physiological processes tend to

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

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

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

Implied Consent Law).

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

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



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

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

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



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

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

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

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

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

Middlesex County Bar Association 3rd Annual Awards Dinner

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

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

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

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

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

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

Sunny Palace
1069 Route 18 South
East Brunswick, NJ 08816

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

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

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

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

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

01-31-08 A-3167-06T2

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

Camie Livsey v. Mercury Insurance Group

10-24-07 A-1238-06T5

Uninsured motorist benefits are available to a plaintiff in
a random, drive-by shooting.

Vincent F. Baldassano v. High Point Insurance Company

11-08-07 A-2183-06T1

Plaintiff was a passenger in a car involved in a one
vehicle accident. He settled with the driver for the driver's
policy limit of $100,000 but claimed his damages exceeded that
amount and sought underinsured motorist (UIM) coverage from his
auto insurance carrier, High Point Insurance Company (High
Point). The UIM claim was denied because plaintiff's UIM limit
of $100,000 had been met by the driver's insurance policy.
Plaintiff claimed that in 1998 when he first purchased the
policy, the agent failed to explain the coverage options, the
agent checked the boxes on the coverage selection form, and the
agent failed to provide a buyer's guide. Plaintiff renewed the
policy twelve times before the accident without inquiring about
or changing the policy limits and transferred the policy twice
to new vehicles.

We affirmed and held that under N.J.S.A. 17:28-1.9 the
insurer is immune from liability under the circumstances
presented where (1) the insured executed a coverage selection
form on which the coverage selections had been checked by the
agent; (2) the insured renewed the policy twelve times before
the accident; and (3) the insured could not refute the carrier's
claim that the agent provided "a written notice identifying [all
coverage information] and containing a buyer's guide and
coverage selection form" as required by N.J.S.A. 39:6A-23(a) and
(c).

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007

ABA CRIMINAL LAW COMMITTEE NEWSLETTER Fall 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Brian T Hermanson Ponca City, Oklahoma Chair
(580) 762-0020 bhermanson@oklawhoma.com
Kenneth Vercammen, Esq. Deputy Chair / co- Editor Edison, NJ

In this Issue:
1. Hearsay Not Admissible at Trial based on Crawford Decision
2. Consequences of a Criminal Guilty Plea in Superior Court
____________________________________________________


1. Hearsay Not Admissible at Trial based on Crawford Decision
By Kenneth Vercammen, Esq.

Prior to 2004, in Municipal Court and criminal cases, statements and documents could often be introduced into evidence over defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. 
 The Court held that "[admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
In Crawford: “the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

The US Supreme Court in 2006 next had the opportunity to determine hearsay issues when the court was petitioned to decide if 911 calls are admissible if the witness will not come to court.

In Davis v. Washington 126 S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not Hearsay. The Court elaborated on the meaning of testimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

The New Jersey Appellate Division on March 6, 2006 had previously determined that an Eyewitness 911 Call to Report Attack Admissible as an Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)

In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).

Certification has been granted by the NJ Supreme Court in the J.A. case. The New Jersey Supreme Court is hearing several other appeals on the Crawford admissibility issue.

In State v Buda 389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis Ed. 2d 224 (2006). Certification to the NJ Supreme Court was also granted on May 21, 2007.

Under Caselaw decided in 1985, a lab certificate was admitted in DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8).
In State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Required in DWI Blood Case if an objection is filed by the defense.
Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.
 Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.
Certification has been granted in Berezansky.

The next major case to examine the Crawford case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirmed the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.
The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

However, Defendant's DWI conviction in Renshaw was affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

In DWI breathalyzer cases, for decades DWI breathalyzer certificates were admitted as an exception to Hearsay Rules. Based on Crawford, the Appellate Division revisited the admissibility of these paper certificates. In State v. Dorman, 393 NJ Super. 28 (App. Div. 2007) the court held Hearsay Rules do not apply to Breathalyzer certs. In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).

The NJ Supreme Court also granted Certification in unreported cases on the same issue, State v. Sweet, A-0091-05. In Sweet, the Breathalyzer Inspection Certification were also found to be admissible outside of Crawford.

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar
Association, New Jersey State Bar Association and Middlesex County Bar Association.

He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 12 years.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on personal injury matters, Municipal Court trials, and contested Probate hearings.

2. Consequences of a Criminal Guilty Plea in Lower criminal courts Court
Some individuals don’t want to spend money to hire an attorney, but instead just plead guilty at their initial court appearance. They should read the following before representing themselves:
1 If you plead guilty you will have a criminal record
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
3. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
4. On employment applications, you will have to answer yes that you were convicted of a criminal offense.
5. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty in many states.
6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation in many states.
7 In many drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
8. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing in many states.
9. You must pay restitution if the court finds there is a victim who has suffered a loss.
10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.


The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.
Brian T Hermanson Ponca City, OK Chair
(580) 762-0020
bhermanson@oklawhoma.com

Kenneth Vercammen, Esq. Deputy Chair / co- Editor
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
www.BeNotGuilty.com

Suppression of Stop and Dismissal of DWI Dismissed Where No Erratic Driving.

Suppression of Stop and Dismissal of DWI Dismissed Where No Erratic Driving.

DRUNK DRIVING. STATE v. AMELIO. Appellate Division, A-1679-06T5, September 21, 2007, not approved for publication. Law Division order following a trial de novo that granted the defendant's motion to suppress evidence that resulted from a stop of his vehicle and that led to his arrest for driving while intoxicated and for refusal to submit to a Breathalyzer test affirmed; the defendant's 17 year old daughter reported to the police that she was having a verbal dispute with the defendant, that the defendant was "drunk," and that he had left the scene in a vehicle; a police officer on patrol observed a vehicle that matched the description given by the daughter; that vehicle parked on the side of the road and then drove away about five seconds later; the officer then pulled the vehicle over; the Law Division properly concluded that the information given to the police dispatcher and then to the officer did not provide reasonable suspicion that the defendant was driving while intoxicated; there was no evidence that the defendant was operating his vehicle in an erratic manner, and the only evidence offered by the State was the daughter's statement that the defendant was "drunk."

Source: NJ Lawyer October 1, 2007

Consequences of a Criminal Guilty Plea in Superior Court

1. If you plead guilty you will have a criminal record.
2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.
3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment
4. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.
5. On employment applications, you will have to answer yes that you were convicted of a crime.
6. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.
7. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.
8. In all drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.
9. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing.
10. You must pay restitution if the court finds there is a victim who has suffered a loss.
11. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.
12. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty.
13. You must wait 5-10 years to expunge a first offense. 2C:52-3
14. You lose the presumption against incarceration in future cases. 2C:44-1
15. You may lose your right to vote.

KENNETH VERCAMMEN & ASSOCIATES, PC
2053 Woodbridge Ave.s
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.BeNotGuilty.com

State of New Jersey vs. Ahmet S. Kotsev

08-31-07 A-3256-05T5

1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive
days incarceration for a third or subsequent conviction for
driving while intoxicated (DWI). Sheriff's Labor Assistance
Programs (SLAP) and weekend service are not substitute
sentencing options for third or subsequent offenders.
2. The 1993 statute mandated a third or subsequent offender to
serve 180 days incarceration "except that the court may lower
such term for each day, not exceeding ninety days, served
performing community service." No other options are available.
3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred
to as Michael's Law, similarly mandates 180 days incarceration
but allows a reduction of one day for each day, not exceeding
ninety days, in an inpatient rehabilitation program.
In other words, a third or subsequent DWI conviction
requires a defendant to serve a minimum of ninety consecutive
days of incarceration.(*Approved for Publication date)

State v. Jay C. Fisher

08-14-07 A-3026-05T3

Pursuant to N.J.S.A. 2C:11-5.1, a driver involved in a
motor vehicle accident that results in the death of another
person is guilty of a crime if the driver fails to comply with
the requirements of N.J.S.A. 39:4-129. The driver must either
remain at the scene to provide his or her driving credentials to
designated persons or report the accident and his or her
identity to the nearest officer of the local police department,
county police or the State Police. Compliance with those
requirements would preclude prosecution under N.J.S.A. 2C:11-
5.1.

Moreover, compliance with those requirements would not
violate the driver's privilege against self-incrimination. As
the United States Supreme Court recognized in California v.
Byers, disclosure of name and address is essentially a neutral
act and most accidents occur without creating criminal
liability. Under the facts of this case, there was no
reasonable basis for the driver to apprehend prosecution,
inasmuch as the decedent had been crouching or lying near the
middle of the road. If, under different facts, compliance with
the statutory requirements did pose a legitimate risk of selfincrimination,
it might be necessary to accord compliant drivers
use or derivative-use immunity as outlined in State v. Patton.

Tracey A. Johnson and Christopher Johnson v. Benedict A. Scaccetti

7-31-07 (A-36-06)

Chipped teeth are not “displaced fractures” under the lawsuit
threshold of the Automobile Insurance Cost Reduction Act
(AICRA), N.J.S.A. 39:6A-1.1 to -35. Once a plaintiff suffers a
single bodily injury that satisfies a threshold category under
AICRA, the jury may consider all other injuries in determining
noneconomic damages. As a matter of law, plaintiff’s spinal
injury in the within matter satisfied the limitation on lawsuit
threshold. Fnally, the trial court failed to articulate
sufficient reasons to justify a remittitur in this action.

State v. Ernest Spell

07-31-07 A-4186-05T5

While the record supports the conviction for refusal to
take a breathalyzer test, N.J.S.A. 39:4-50.2, and the conviction
is affirmed, effective October 1, 2007 officers must read the
additional paragraph of the statutorily promulgated statement of
the Motor Vehicle Commission before any refusal conviction can
be sustained.

State v. Michelle L. Elders

7-30-07 (A-42-06)

The “reasonable and articulable suspicion” standard of State v.
Carty, 174 N.J. 351 (2002), which governs consent searches of
cars that are validly stopped applies equally to disabled
vehicles on the State’s roadways. In this case, the Court
concludes that there was sufficient credible evidence in the
record to support the trial judge’s findings that the troopers
engaged in an unconstitutional investigatory detention and
search.

Commercial Insurance Company of Newark v. Mary Steiger

07-20-07 A-1314-05T1

Decedent perished in a one-car collision. His Estate sued
the vehicle's manufacturer, alleging the products liability
theory that the death occurred because the vehicle was not
"crash worthy." After the products liability suit was settled,
the Estate filed a UM claim, alleging that the accident was
caused by a "phantom" vehicle. UM insurer filed a declaratory
judgment action to preclude the UM claim on several grounds.

We hold that the Estate is not barred from pursuing a UM
claim based on the doctrines of judicial estoppel, which applies
when a party has convinced a court to accept its position. The
doctrine does not apply here because a settlement does not imply
endorsement of a party's position by the court.

We also hold that the settlement of the products liability
claim without the consent of the UM insurer does not bar the UM
claim because the products liability defendant is neither an
uninsured motorist nor the owner of an uninsured vehicle.

Lastly, we hold that, in order to avoid a double recovery,
the UM insurer is entitled to a credit for the amount of the
products liability settlement.

Bogey's Trucking & Paving, Inc. v, Indian Harbor Insurance Company

07-19-07 A-2529-05T3

We consider the automobile exclusion in a CGL policy and
conclude that the business's auto insurer, not the CGL insurer,
owed a duty to defend and indemnify. We also determine that a
passenger in the insured dump truck, who left that truck to
direct its driver and was hit by the driver of an insured car
was "occupying" the dump truck and is entitled to UM coverage.

State v. Tammy Buczkowski

07-18-07 A-4671-05T1

We apply the Supreme Court's dictum in State v. Fisher, 180
N.J. 462, 474 (2004), that N.J.S.A. 39:5-3a requires service of
process within thirty days from the date of the alleged offense
in most instances of charged motor vehicle violations. We,
therefore, affirm the Law Division's dismissal of a charge of
reckless driving, N.J.S.A. 39:4-96, as untimely. We also apply
the doctrine requiring "[t]he government [to] 'turn square
corners' in its dealings with the public."

Mohammad F. Ahammed v. Jeffrey P. Logandro

06-27-07 A-4993-05T1

This is an automobile accident personal injury negligence
case. Plaintiff and defendant were both pizza delivery drivers
engaged in the course of their employment when their vehicles
collided. Defendant asserted the bar of the Workers
Compensation Act (Act) as an affirmative defense in his answer
to plaintiff's complaint. Plaintiff's counsels' actions during
the course of the litigation lulled defense counsel into
mistakenly believing that the fellow-servant rule was not a
viable defense to plaintiff's cause of action. After belatedly
becoming informed of the viability of the defense, defendant one
week prior to the scheduled trial date, asserted the defense as
a bar to plaintiff's complaint. We found that equitable
principles and the strong public policy underpinnings of the
fellow-servant provision supported the trial judge's finding
that defendant did not waive his workers compensation defense by
his late assertion of the defense.

Leslie Conrad v. Michelle & John, Inc., d/b/a Nipper's Pub

06-19-07 A-1131-05T5

This appeal concerns the propriety of the trial court's
order dismissing with prejudice a dram shop cause of action, as
a sanction for plaintiff's failure to produce her expert at a
court-ordered N.J.R.E. 104 hearing. The trial court also
granted defendant's summary judgment motion, finding that there
were no material facts in dispute, thus entitling defendant to a
judgment in its favor as a matter of law.

We reversed. We held that, absent a bona fide and timely
in limine application by defendant seeking to bar plaintiff's
expert testimony, the trial court had no basis to order
plaintiff's expert to respond to an N.J.R.E. 104 hearing to
determine the scientific validity of his opinions. The trial
court also erred in imposing the ultimate sanction of dismissal
with prejudice, before first exhausting lesser sanctions.
Finally, we concluded that there are sufficient material issues
of fact in dispute, giving plaintiff the right to present her
case to a jury. An eyewitness's recantation of a crucial part
of his testimony presents a fundamental jury issue.

Robert M. Alpert v. Sharon Harrington

06-26-07 A-5686-05T3

An applicant for a driver's license cannot obtain an
exemption from the requirement of submission of a social
security number with the application by simply showing that he
tendered an "Affidavit of Revocation and Rescission" of his
social security registration to the Social Security
Administration.

Progressive Group v. Luz Mirian Hurtado

06-14-07 A-4362-05T1
Plaintiff instituted this declaratory action seeking to
have its policy declared automatically terminated as of June 1,
2002, because the owner of the insured vehicle allegedly
transferred legal title to another individual on that date.
Although the motion judge likely erred by concluding that there
was no valid transfer of legal title because the assignment of
the certificate of title was not filed with the Division of
Motor Vehicles, we affirm on different grounds. We held that
the owner's failure to strictly comply with the Motor Vehicle
Certificate of Ownership Law by not providing an odometer
reading, as required by N.J.A.C. 13:21-5.9(a), rendered the
purported assignment of the certificate of title incomplete and
thus did not legally serve to transfer title. As a result,
plaintiff's policy was not automatically terminated and coverage
remained with plaintiff.

Defendant Can Contest Lab Reports As Hearsay. State v. Kent 391 N.J. Super. 352 (App. Div. Decided March 22, 2007) A-3137-05T1.

Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A:62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirms the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.

However the court, also noted that, unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

Defendant's DWI conviction is affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

If Billing Dispute, Customer Not Guilty of Shoplifting. State v. Goodmann 390 NJ Super. 259 (App. Div. 2007).

The court held that a customer who, following a billing dispute with Walgreens regarding the cost of photo processing, takes the finished photographs without paying for them, but gives his name and address to the store manager, cannot be found guilty of shoplifting. Photo processing constitutes a service, and therefore, Walgreens was not acting as a "merchant" when it contracted to develop the customer's film. Further, the photographs that Walgreens produced were not "merchandise," because they lacked value to anyone other the customer and were not salable.
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."

Nurse Can Be Required to Testify in DWI Blood Case. State v. Renshaw 390 NJ Super. 456 (App. Div. 2007).

The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.

Open Public Records Act (OPRA) Bars $55 Fee For Edison Computer Records.

Libertarian Party of Central NJ v. Murphy 384 NJ Super. 136 (App Div. 2006).
The $55 fee charged to plaintiffs for a computer diskette containing the minutes of the township council meetings violates the OPRA. Source: 184 NJLJ 46.

Police Questioning After 911 Call Did Not Violate Miranda. State v. Boretsky 186 N.J. 271 (2006)

An individual's intentions in respect of equivocal statements about "counsel" during an emergency aid situation are not relevant for Miranda purposes. During the emergency aid response, an alleged "equivocal" reference to counsel lacks sufficient basis to tie the statement to interests the Miranda remedy was designed to protect. When the emergency ends and Miranda warnings are administered, we hold that the administration of the warning satisfies Miranda

Co-tenant Can Object to Search Even if Other Occupant Consents. Georgia v Randolph 126 S. Ct. 1515; 164 L. Ed. 2d 208

A physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him. A disputed invitation, without more, gives an officer no better claim to reasonableness in entering than the officer would have absent any consent. Disputed permission is no match for the Fourth Amendment central value of "respect for the privacy of the home," Wilson v. Layne, 526 U.S. 603, 610, 119 S. Ct. 1692, 143 L. Ed. 2d 818, and the State's other countervailing claims do not add up to outweigh it.

Suspended Jail Sentence Permitted in Juvenile Cases. In the Interest of M.C. 384 N.J. Super. 116 (App Div. 2006)

A Family Court judge imposed suspended sentences in three separate, unrelated juvenile cases involving defendants M.C., M.P., and S.J. The State contended that the sentences imposed are illegal. The Code of Juvenile Justice, N.J.S.A. 2A: 4A-20 to -91 (the Code), should be interpreted to permit suspended sentences. The Code is silent on the subject of suspended sentences. Nevertheless, the court concluded that its provisions are sufficiently flexible to permit our courts to impose suspended sentences as a viable disposition, given its fundamental rehabilitative and penal objectives.

Mandatory 180 Days in Jail For 3rd Offender DWI. State v Luthe 383 N.J. Super. 512 (App Div. 2006)

N.J.S.A. 39:4-50(a)(3) does not authorize non custodial alternatives to the mandatory 180 days confinement, whether that confinement be served entirely in jail or partially in an inpatient facility. There is no statutory authority for work release programs, out-patient treatment, or the like as an alternative

In DWI State Not Required to Prove Defendant Advised of Independent Testing. State v Howard 383 N.J. Super. 538 (App Div. 2006)

The State in a DWI case is not required to prove that a defendant has been advised of his or her right to independent testing pursuant to N.J.S.A. 39:4-50.2(c) and (d) in order to sustain a conviction of a per se violation under N.J.S.A. 39:4-50(a).

Strip Search Improper. State v Harris 384 N.J. Super. 29 (App Div. 2006)

Police conduct up in the seizure of the baggies from defendant's mouth was lawful, but that the strip search at the police station was unreasonable and lacking in probable cause.

Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or immine

imminently threatened with such injury Brigham City v Stuart 126 S.Ct. 1943 (2006)

Responding to a 3 a.m. call about a loud party, police arrived at the house in question, heard shouting inside, proceeded down the driveway, and saw two juveniles drinking beer in the backyard. Entering the yard, they saw through a screen door and windows an altercation in the kitchen between four adults and a juvenile, who punched one of the adults, causing him to spit blood in a sink. An officer opened the screen door and announced the officers’ presence. Unnoticed amid the tumult, the officer entered the kitchen and again cried out, whereupon the altercation gradually subsided. The officers arrested respondents and charged them with contributing to the delinquency of a minor and related offenses.

The US Supreme Court held: The officers’ entry here was plainly reasonable under the circumstances. Given the tumult at the house when they arrived, it was obvious that knocking on the front door would have been futile. Moreover, in light of the fracas they observed in the kitchen, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious, semiconscious, or worse before entering. The manner of their entry was also reasonable, since nobody heard the first announcement of their presence, and it was only after the announcing officer stepped into the kitchen and announced himself again that the tumult subsided. That announcement was at least equivalent to a knock on the screen door and, under the circumstances, there was no violation of the Fourth Amendment’s knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to make them stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence.

Illegal alien status can factor to deny PTI. State v. Liviaz __ N.J. Super. __ (App. Div. 2007)

Although PTI may not be denied solely because a defendant is an illegal alien, it can be a relevant factor, and in both of these cases defendant's illegal status plus other facts justified the prosecutor's rejection of defendant's application for admission to the PTI program. Judgments of the trial court therefore reversed.

Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

Crawford case requires Witness must appear in court to testify. State v Buda __ N.J. Super. __ (App. Div. 2006) Appellate Division, A-4778-04T4

An excited utterance made by a child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis v. Washington, __ U.S. __, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1

1 Nurse may be required to testify in DWI 02-09-07 State of New Jersey v. Robert C. Renshaw A-0712-05T1
The Court that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.

ABA CRIMINAL LAW COMMITTEE NEWSLETTER

General Practice, Solo and Small Firm Division:
March 2007
The Criminal Law Committee helps to keep solo and small firms members updated on criminal law and procedure. Programs presented by the committee are basic "how to's" on handling your first criminal law case, or answering questions from your clients when criminal law issues arise in the general practice context. We welcome all who wish to participate and accept all suggestions for programming ideas.

Brian T Hermanson Ponca City, OK Chair (580) 762-0020

Kenneth Vercammen, Esq. Editor & Deputy Chair

In this Issue:
1. Sample CONFIDENTIAL CRIMINAL INTERVIEW FORM
2 Sample DWI Cross Examination Questions
3 WE PUBLISH YOUR ARTICLES AND FORMS


1. CONFIDENTIAL CRIMINAL INTERVIEW FORM

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 WOODBRIDGE AVENUE
EDISON, NJ 08817
732-572-0500
PLEASE PRINT

NAME ____________________________________________________

ADDRESS _________________________________________________

CITY _______________________ STATE ____ ZIP ______________

CELL #(_____)_________________ PHONE-DAY(____)________________

NIGHT (______)_________________

TODAY'S DATE ____/_____/_____ E-MAIL ________________________

Referred By: __________________________________
If referred by a person, is this a client or attorney?

CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied]
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
IMPORTANT INFORMATION
Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____
Town: ___________________________ (street/location)?____________________
What Happened: _________________________________________________
________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Write additional details on the back of this page. YOU MUST FILL OUT BOTH
PAGES PRIOR TO SEEING THE ATTORNEY.
Kenneth Vercammen, Esq. Confidential interview form page 2
Other Persons Arrested or Witnesses:
______________________ ______________________ _________________
co-defendant/ Witness Name Their Address Phone No.
What did you tell the police? ________________________________________
______________________________________________________________________________________________________________________________

Occupation: _____________ Employer: _______________ Town: ________
[Attach your business card to clipboard.]
Do you need your drivers license for work? ____ Distance driven to work: ____

Prior criminal arrests or convictions, even if charges dismissed (include description of each charge, date of arrest, and town/county of arrest. -If none, write none):
_____________________________________________________________________________________________________________________________________________________________________________________________

Prior motor vehicle convictions, town and year (ex: drunk driving, driving while suspended, no insurance, etc. -If none, write none): _____________________
_____________________________________________________________________________________________________________________________________________________________________________________________Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]:
1. Town _______________________ Year ___________ [if none, write none]
2. Town _______________________ Year ___________
[Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.]

If you are not a US Citizen, please check here: ______

What questions do you have/ how can we help you and anything else important:
____________________________________________________


All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. Please help yourself to all brochures in the reception area. If you have a business card, please attach it to the clipboard. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you.

Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a municipal court matter.
1. Legal Services To Be Provided- Please read!
We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you.

1. Office consultation with client
2. Preparation of statement to provide legal services [ retainer agreement setting forth fees and work to be performed;
3. Offer sound legal advice to client;
4. Preparation of letter of representation to Municipal Court after fee paid;
5. Preparation of letter of representation to Municipal Court Prosecutor;
6. Review documents supplied by client and court;
7. Copies of all correspondence to Court and Prosecutor to client;
8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure;
9. Review of necessary statutes and case law;
10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely;
11. Prepare defense and mitigating factors;
12. Miscellaneous correspondence, drafting of brief/ pleadings if needed;
13. Review Court hearing notice and send letter to client to remind them of hearing
14. Travel to Municipal Court;
15. Representation in Municipal Court.
16. Preparation of End of Case Letter and client questionnaire.
17. Free Brochures provided on other legal topics such as Personal Injury, Worker's Comp, Wills, Probate and other matter we help clients
18. Free subscription to monthly e-mail newsletter.
19. Answer specific questions after the case is over
20. Free T-shirts, Magnets, Can Koozie, Stadium Cup, Free USA Keychains, USA Flag Calendar for clients - Please ask.
Legal Fees.
Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees are to be paid at initial consultation (today). Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. We cannot send a letter of representation to the court until the Retainer is paid in full. This is a non-refundable retainer/representation fee, pursuant to Superior Court decisions and New Jersey RPC.
What you should do: After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney. In traffic tickets, the phone number is on the back of the ticket.
Write your notes on the back of this paper during your interview.



2- Sample DWI Cross Examination Questions
By Kenneth Vercammen, Esq.
Editor- NJ Municipal Court Law Review and lecturer on DWI for both the NJ State Bar Association and NJ Police Chiefs Association

Probable Cause for Stop
1. No accident?
2. No criminal violation?
3. Traffic light per ticket?
4. According to Report-Not close to hitting other car
5. According to Report not endangering any person/property?
6. No details in report of driving willful on went to disregard of rights of others?
7. No ticket for lane violation?
8. No ticket for careless?
9. No reason to believe weapons?
10. No tip by reliable informant?
11. Pulled over my client without a warrant?
12. No Radar?
13. No Pace?
14. Could not have issued ticket for speeding?

Cross of Police Regarding Field Sobriety
15. Do you have documents describing how, under what conditions and by whom each test was given? Are you aware the National Highway Traffic Safety Administration has advice and instructions on giving the Field Sobriety Test.
15A. Walk and Turn
Your report does not say that you:
• Always begin by having the subject assume the heel-toe stance
• Verify that the subject understands that the stance is to be maintained while the instructions are given.
• If the subject breaks away from the stance as the instructions are given, cease giving instructions until the stance is resumed
• Tell the subject that he or she will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
• Demonstrate several heel-to-toe steps
• Demonstrate the turn
• Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not to stop walking until the test is completed.
• Ask the subject whether he or she understands; it not, re-explain whatever the subject doesn’t understand
• Tell the subject to begin
• If the subject staggers or stops, allow him or her to resume from the point of interruption; do not require the subject to start over from the beginning
• Cannot keep balance while listening to instructions (i.e., breaks away from the
heel-to-toe stance)
• Starts before instructions are finished
• Keeps balance but does not remember instructions
• Stops while walking to steady self
• Does not touch heel-to-toe while walking (i.e., misses by at least one-half inch)
• Loses balance while walking (i.e., steps off line)
• Uses arms for balance (i.e., raises arms by six inches or more)
• Loses balance while turning
• Incorrect number of steps
Are you aware the NHTSA states that officers should note in their reports how many times each of the eight clues appears. However, isn't it true the NHTSA for purposes of applying the standardized criterion, a clue should be “counted” only once, even if it appears more than once.
15B. One Leg Stand
Your report does not say you would:
• Tell the subject to stand with heels together, and arms at sides
• Tell the subject not to start the test until you say to do so
• Ask the subject whether he or she understands
• Tell the subject he or she will have to stand on one foot, with the other foot about six inches off the ground
• Demonstrate the stance
• Tell the subject to count from 1 to 30, by thousands
• Demonstrate the count, for several seconds
• Ask the subject whether he or she understands; if not, re-explain whatever is not understood
• Tell the subject to begin
• If the subject stops or puts the foot down, allow him or her to resume at the point of interruption; do not require the count to begin again at “one thousand and one”
• Swaying while balancing
• Uses arms to balance (i.e., raises arms from side six inches or more)
• Slightly uneasy
• Quite unsteady
• Starts before instructions are finished
• Puts foot down
• Hops
Are you aware the NHTSA states that there are the only four validated clues of One Leg Stand.
15C. Horizontal Gaze Nystagmus Test
Your report does not say:
• Hold the stimulus 12-15 inches in front of the subject’s face
• Keep the tip of the stimulus slightly above the subject’s face
• Always move the stimulus smoothly
• Always check for all three clues in both eyes
• Lack of smooth pursuit
• Distinct jerking at maximum deviation
• Onset of jerking within 45 degrees
Are you aware that no other “clues” are recognized by NHTSA as valid indicators of horizontal gaze nystagmus. In particular, NHTSA does not support that allegation that onset angle can reliably be used to estimate BAC, and considers any such estimation to be misuse of the horizontal gaze nystagmus test.

16. Documents describing test results?
17. Documents describing "test" results?
18. What are procedures to permit defendant to obtain independent tests of blood, breath or?

According to your Alcohol influence rep?
19. Section 25 of Alcohol Influence report, Able to walk, talk?
not falling
-not on hands and knees
-not staggering
20. According to Section 26, Ability to stand?
-no swaying
-no leaning for balance
-feet not wide apart
21. According to Section 27, Speech-not slurred?
-not incoherent
-not slobbering
-could understand what she was saying
22. Demeanor-cooperative, polite, calm?
23. Eyes watery now?
24. When is allergy season?

DWI Questions Regarding Under Influence
25. Did prosecutor or state supply an experts report?
26. Not a medical doctor?
27. No test of Pharmacological effects of any medications?
28. No direct measurement of the quantity of any medications or drugs in defendants blood?
29. Gas Chromatography/ Mass spectrometry can provide direct measurement of quality?
30. You don't have any gas Chromatography results with your blood?
31. Not licensed to prescribe medications?
32. Have not attended Medical School?
33. Not Qualified to Render a Medical Opinion
34. Do not have a Ph.D..?
35. Do not have a Masters degree in Chemistry
36. Do not have a BS degree in Chemistry?
[saved 100 Cross Exam Q-DWI Brendan articles 4/3/03]
_____________________________________________

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3. WE PUBLISH YOUR FORMS AND ARTICLES

To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

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General Practice, Solo and Small Firm Division:
CRIMINAL LAW COMMITTEE
Brian T Hermanson Ponca City, OK
Chair (580) 762-0020

KENNETH VERCAMMEN Deputy Chair
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
kenv@njlaws.com

New criminal case: Two-stage interrogation not objectionable. State v. O'Neill 388 N.J. Super. 135 (App. Div. 2006)

The court reject defendant's claim that the two tape-recorded statements he made to the police should have been suppressed because they were the product of a two-stage interrogation technique (question-first, warn-later) found to be improper by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court