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Cases Affecting DWI Prosecution and Defense

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Kenneth Vercammen & Associates A Law Office with Experienced Attorneys for Your New Jersey Legal Needs 2053 Woodbridge Ave. Edison NJ 08817 732-572-0500 1-800-655-2977 Personal Injury and Criminal on Weekends 732-261-4005

Princeton Area 68 South Main St. Cranbury, NJ 08512 By Appointment Only Toll Free 800-655-2977

Cases Affecting DWI Prosecution and Defense From the NJSBA Annual Meeting Presented by Kenneth Vercammen, Esq., Cranbury Prosecutor 1991- 1999 1. Appellate Judges to Ignore Factual Errors Below State v. Locurto 304 NJ Super. 514 (App. Div. 1999). It was improper for the Appellate Division to engage in an independent assessment of the evidence. A trial court is not to articulate its credibility findings in detail when the reasons supporting those findings could be inferred from, and are well-supported by, the account of the facts and testimony presented in the trial court's decision. 2. State Cannot Appeal Acquittal on Refusal; Consent to Breath Test Must be Unequivocal State v. Widmaier 157 N.J. 475 (1999). A person arrested for driving while intoxicated may not be acquitted of a refusal to take a breathalyzer test unless he or she unequivocally and unambiguously consented to the test. In addition, the double jeopardy clause of the federal and state constitutions bars the state from appealing Widmaier's acquittal of the refusal charge.

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3. DWI Road Block Approved State v. Reynolds ___ NJ Super. ___ (App. Div. 1999). A-3820-97T3F http://www.njlaws.com/cases_affecting_dwi.html?id=118&a=

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Cases Affecting DWI Prosecution and Defense

decided November 6, 1998. LEXIS cite 1998 NJ Super. LEXIS 538. Cranford police road block, which stopped each and every car, and did not cause traffic back-ups, was constitutional in the manner conducted. There is no Fourth Amendment prohibition to preclude police distribution of DWI informational literature at such a stop when police identified themselves and indicated screening purpose of the stop.

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4. Bank Court Cannot Hold a Municipal Court in Contempt In Re Perez 220 B.R. 216 (Bankr. D.N.J. 1998). The debtor moved to compel a municipal Submit Clear court judge to comply with the Bankruptcy Court's order directing a rescission of an order suspending the debtor's driving privileges (the bankruptcy order); and for sanctions and fees for the municipal judge's alleged continuing violation of the Bankruptcy Kenneth Vercammen was the Order. Source: NJ Law Journal, Bankruptcy Law Middlesex County Bar Municipal Supplement, February 1, 1999 p. 24. Court Attorney of the Year 5. Municipal Courts May Have To Rescind the Suspension of a Debtor's Driving Privileges In Re Raphael ___ B.R. ___ (Bankr. D.N.J. 1999) J. Wizmur Docket No. 42-6-9359. LEXIS cite 1999 Bankr. LEXIS 130. In case where debtor proposed to pay his municipal court traffic fines through his Chapter 13 plan, the court clarifies the basis for its prior order directing that each of the municipalities involved rescind the suspension of the debtor's driving privileges to the extent that the suspension was based on the debtor's failure to pay a courtimposed fine; the court finds that its order is more akin to a judgment against a non-immune municipality, rather than a judgment against the State, and therefore the municipal courts do not have sovereign immunity. 6 Post conviction requires hearing State v. Murray 315 NJ Super. 535 (App. Div. 1998) (A-0402-96T4, decided October 30, 1998). A defendant's petition for post-conviction relief, alleging his trial attorney and the attorney for his codefendant, who entered a guilty plea prior to defendant's trial and testified as a State's witness against defendant, shared as of the date of defendant's trial a common office address and the http://www.njlaws.com/cases_affecting_dwi.html?id=118&a=

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same telephone number, presents a prima facie claim of ineffective assistance of counsel warranting a plenary hearing. Denying the petition without a plenary hearing was an error, Petitioner shall have the burden to demonstrate the applicability of State v. Bellucci, 81 N.J. 531 (1980), as further amplified in State v. Norman, 151 N.J. 5 (1987). 7 Legally parked car no grounds for search State in the Interest of A.P. 315 NJ Super. 166 (Law Div. 1998) (FJ-19-1014-97, decided May 22, 1998). Here, where the juvenile was a passenger in a legally parked car and the officer who approached him to make a community - care-taking inquiry, as opposed to a lawful stop based on a traffic violation, had no prior knowledge of the juvenile, and there was no criminal activity in the area and no signs of alcohol or a controlled dangerous substance, the juvenile's furtive movements in avoiding eye contact with the officer did not provide a basis for an objective reasonable and articulable suspicion, and the evidence seized (a lighter and a "pipe-like smoking device") must be suppressed; the issue of whether or not the juvenile's statement to the officer that he did not lean forward and down as the officer approached was lie which would justify a suspicion that he might be armed, is subject to ambiguity and interpretation. 8. Bankruptcy Court Lacked Jurisdiction to Restore Drivers License In Re Burkhardt U.S. Bankruptcy Court 220 BR 837 (D. NJ May 13, 1998), Case No. 97-40459 The Bankruptcy Court lacked subject matter jurisdiction to compel the restoration of a debtor's state-issued and regulated driver's license. Additionally, the debtor's uncontested chapter 13 plan was confirmed because the propose confirmation of the plan did not violate New Jersey's Eleventh Amendment immunity in seeking to discharge motor vehicle fines and surcharges that run, in part, to the State. Source: NJ Lawyer Factson-Call Order No. 4138. 9 Municipal court judge can amend case to correct town State v. Ryfa __ NJ Super. __, (Law Div. 1998) Essex County, Municipal Appeal No. 102-97, decided May 5, 1998. Where a motor vehicle complaint is made returnable in the wrong http://www.njlaws.com/cases_affecting_dwi.html?id=118&a=

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municipality due to an error by the officer as to the location of the offense, the municipal court has broad authority to amend the summons to correct the location, pursuant to R. 7:10-2, and to transfer the case to the proper court, pursuant to R. 1:13-4(a). 10. Sup MT must be raised timely State v. Colapinto 309 N.J. Super. 132 (App. Div. 1998) In this action charging defendant with DWI, defendant failed to timely raise a suppression issue when he became aware of the issue during the testimony of a police officer at the initial municipal court proceeding, yet continued to cross-examine the officer, allowed the State to fully present the direct testimony of another officer, proceeded to partially cross-examine that officer, completed his cross-examination at another court session one week thereafter, and raised his claim of impermissible detention midway into his summation. The Law Division judge's decision suppressing the evidence, therefore, is reversed. Additionally, we note that had we addressed the merits of defendant's constitutional claim of impermissible detention, we would have concluded that, under State v. Dickey 294 N.J. 619 (1998), even though defendant was detained for approximately 25 to 45 minutes, "the combination of the duration of the detention and the degree of intrusion" upon defendant's liberty interests did not exceed permissible bounds, where defendant, while waiting for another officer to arrive to administer psychophysical tests, was not handcuffed, touched, or questioned, and was permitted to remain seated in his own motor vehicle. 11. Fifth offense DWI does not equal Second offense State v. Lucci __ N.J. Super. __ (A-6027-96T1,( App. Div. 1998) Defendant, as a fifth DWI/refusal offender, whose fifth DWI offense occurred more than ten years after his third, is not entitled to be sentenced as a second offender pursuant to the dropdown provision in N.J.S.A. 39:4-50(a). That leniency provision does not apply to fourth and subsequent offenses. At best, defendant would be entitled to a drop down from a fifth offender to a fourth offender status and, thus, still subject to the enhanced penalties for a "third, or subsequent" offense. http://www.njlaws.com/cases_affecting_dwi.html?id=118&a=

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12. Hospital blood test admissible in DWI State v. Lutz 309 N.J. Super. 317 (App. Div. 1998) Defendant appeals from his convictions for driving under the influence of alcohol under N.J.S.A 39:4-50 and careless driving under N.J.S.A. 39:4-97. Defendant contends that the results of his blood test are forensically unreliable and inadmissible. The Court affirms the driving-under-the-influence-ofalcohol conviction and note that although there may be differences in the methodology used for tests conducted by law enforcement for "forensic" purposes in comparison to those conducted by a hospital for "diagnostic" purposes, the procedure utilized to test defendant's blood was sufficient to establish the reliability of defendant's test results. We reverse and remand the careless driving charge because the State presented no evidence indicating that defendant had been speeding or otherwise driving without due caution and circumspection. Editorial Assistance provided by NJ Municipal Court Law Review Associate Editor LeVar Harris, a fourth-year student at Rutgers University. An active member in university affairs, Mr. Harris is involved in Student Council, the University Hearing Board and a host of other campus organizations. Mr. Harris is also an honors student preparing for a career in the field of law. Case citations provided by NJ Trial Lawcast, the voice of the law. NJ Trial Lawcast has audio tapes of legal decisions. NEW LAW. A conviction of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L. 1966, c. 73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than .10%. NEW LAWS P.L. 1998, C. 108. Creates a graduated driver's license system for new drivers of passenger automobiles. http://www.njlaws.com/cases_affecting_dwi.html?id=118&a=

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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 provides information on traffic offenses we can be retained to http://www.njlaws.com/cases_affecting_dwi.html?id=118&a=

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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.

Contact the Law Office of Kenneth Vercammen & Associates, P.C. at 732-572-0500 for an appointment. The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation. The Law Office now accepts payment by American Express, Visa and Master Card. .

Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement. Š 2011 Kenneth Vercammen & Associates, P.C.

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Cases Affecting DWI Prosecution and Defense