Issuu on Google+

Spring 2010 Mun Law Rev rev 3/11 1. Prior refusal counts for 3rd DWI State v Ciancaglini 411 NJ Super. 280 (App. Div. 2010) In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, this Appellate panel disagrees with the holding of State v. DiSomma 262 N.J. Super. 375 (App. Div. 1993), and hold that the prior refusal conviction does count toward making this a third offense. The court feels this holding is consistent with a line of cases both before and after DiSomma concluding that a prior DWI conviction counts toward enhancement of the sentence imposed for a refusal conviction. See, e.g., State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995). The court also held that double jeopardy does not bar reinstatement of the sentence originally imposed in the municipal court for a third DWI offense, which was reduced in the Law Division to a sentence for a first DWI offense. 2. New trial ordered where Judge conducted questioning of defense expert State v. O’Brien 200 NJ 520 (2009) Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order. 3. Refusal does not merge into DWI State v Eckert 410 NJ Super. 389 (App. Div. 2009 A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement violated applicable merger principles as well as the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey. 4. Alcotest readings do not need to be truncated to three decimals State v Rivera 411 NJ Super. 492 (App. Div. 2010) Reviewing defendant's challenge to the admission of Alcotest results relied upon to support a per se violation of N.J.S.A. 39:4-50, the court rejected a suggested methodology requiring the State to truncate the intermediate calculations of the relative and absolute upper tolerance limits when discerning whether the Alcotest readings obtained were valid. The court concluded the Supreme Court in State v. Chun 194 N.J. 54, cert. denied, 129 S. Ct. 158, (2008) expressed no preference for truncating the various interim calculations on Worksheet A, which would have the resultant effect of lowering the range of tolerance below that approved by the Court with the concomitant result of falsely increasing the number of invalid Alcotest results, precluding justifiable prosecutions for per se violations of N.J.S.A. 39:4-50. 5.

AG use of force reports are public records

O’Shea v West Milford 410 NJ

1


Super. 371 (App. Div. 2010) The Attorney General's guidelines, policies and procedures requiring the completion of "Use of Force Reports" (UFRs) and their maintenance in the files of police departments have the force of law for police entities, rending such documents accessible under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Therefore, UFRs do not qualify, generically, under the "criminal investigatory records" exception of OPRA. 6. . Exigent circumstances may allow search of car State v Lewis 411 NJ Super. 403(App. Div. 2010) Where police stopped vehicle at night in a neighborhood known for drug sales based on evidence providing probable cause to believe vehicle contained drugs, persons other than the occupants who also had reason to believe the vehicle contained drugs may have had access to the vehicle, and there was a substantial question whether other police officers would have been available to detain the occupants while an application was made for a warrant, the State established the exigent circumstances required to justify a search of the vehicle under the automobile exception to the warrant requirement. Moreover, the validity of the search was not affected by the fact that drugs were found in a closed leather case because, when the automobile exception applies, the police may search every part of the vehicle and its contents that may conceal the object of the search. 7. Flight from police does not always justify admission of evidence State v Williams 410 NJ Super. 549 (App. Div. 2009) Flight from an unconstitutional investigatory stop that could justify an arrest for obstruction does not automatically justify admission of evidence revealed during that flight. For such evidence to be admissible, there must be a "significant attenuation" between the unconstitutional stop and seizure of evidence. 8. No specific words required for Miranda warnings Florida v. Powell 175 L.Ed 1009 __ S. Ct. ___ (Dec. 7, 2009) In a state prosecution for possession of a weapon by a convicted felon, a reversal of defendant's conviction on Miranda grounds is reversed where the police satisfied Miranda's requirements by informing defendant that he had "the right to talk to a lawyer before answering any of their questions," and that he had "the right to use any of his rights at any time he wanted during the interview. Advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during the interview,” satisfies Miranda. 9 OPRA limits copy fees to actual costs Smith v. Hudson County __ NJ Super __ (A-1762-08T2 App. Div. February 10, 2010)

2


Judge Sabatino wrote: “We must bear in mind the public policies underlying the OPRA statute as a whole. The purpose of OPRA is "'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J Super. 312, 329 (Law Div. 2004)). Toward that end, the Legislature declared in OPRA, as "the public policy of this State," that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . [.]" N.J.S.A. 47:1A-1 (emphasis added). "[Any limitations on the right of access accorded by [the former RKL][,] as amended and supplemented, shall be construed in favor of the public's right of access." Ibid. These broad legislative findings in favor of "readily accessible" government records have been repeatedly recognized and applied in case law under OPRA. See, e.g., Burnett v. County of Bergen, 198 N.J. 408, 421-22 (2009); Mason, supra, 196 N.J. at 64-65; Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005); MAG Entm't LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 544 (App. Div. 2005). These public policies in OPRA favoring reasonable citizen access to government records have long been part of our State's history and tradition. For example, in Moore, supra, 39 N.J. at 30, the Supreme Court acknowledged the "vital importance" of a citizen's right to inspect certain records maintained by the government. Slip op p 28- 29”

New law increases ignition interlock device requirements for most drunk driving offenders in NJ. Under the new law, ignition interlocks will be mandatory for first time offenders whose blood alcohol content (BAC) is 0.15 percent or higher, and for all subsequent offenders. The new law also requires ignition interlock devices to be installed during the period that the offender’s license is suspended as well as after the license is restored.

3


P.L. 2009, CHAPTER 201 amends NJSA 39:4-50.17a, the law to make it mandatory for most DUI offenders in New Jersey to install ignition interlock devices in the primary vehicle operated by the offender. Previously, the court had the option to require first-time offenders to install an ignition interlock device for six months to one year immediately following the restoration of a suspended license, and secondtime and subsequent offenders are required to install an ignition interlock for a period of one to three years following license restoration. NJSA 39:4-50.17a

Monthly leasing fee for installation of ignition

interlock device. 6. a. If a person is required to install an ignition interlock device and that person's family income does not exceed 100% of the federal poverty level, the monthly leasing fee shall be 50% of the fee established by regulation for persons who do not qualify for the reduced fee.

b. If a person is required to install an

ignition interlock device and that person's family income does not exceed 149% of the federal poverty level, the monthly leasing fee shall be 75% of the fee established by regulation for persons who do not qualify for the reduced fee .c. Persons who qualify for a reduced fee pursuant to the provisions of this section shall not be required to pay the installation fee, the cost for monitoring of the device, or any fees for calibration or removal of the device.

Congratulations South Brunswick HS varsity wrestling team The team finished with 18-6 record in Group IV, 5 th in Middlesex County. Cocaptain Brendan Vercammen won the County Championship at 171 pounds, is two time District 20 champion, went to finals of Region 5 and capped off his career by placing 5th in the state at the prestigious NJSIAA State Championships at Convention Hall in Atlantic City. More info at http://vercammensport.blogspot.com/ RECENT CHANGES IN MUNICIPAL COURT LAW: 2010 Fairfield Monday, April 19, 2010 5:30 PM to 9:00 PM Crowne Plaza, Rt 46 4


Fairfield NJ 07004 KENNETH A. VERCAMMEN, ESQ. Past Chair, NJSBA Municipal Court Section Chair, ABA Elder Law Committee Past GP Solo Section Attorney of the Year 2006 NJSBA Municipal Court Practitioner of the Year K. Vercammen & Associates Speakers include: HON. DIANA E. MONTES-INFANTE, JMC (Newark) WILLIAM G. BRIGIANI, ESQ. Brigiani, Cohen & Schneider DENIS F. DRISCOLL, ESQ. Municipal Prosecutor (Denville, Montville & Victory Gardens) Resch & Driscoll, PC JOHN MENZEL, ESQ. Moore & Menzel Are you prepared to prosecute or defend your client in new Alcotest cases? This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court. An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients. Program Preview: • Criminal Case Law and Legislative Update • The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues • Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff • Recent developments in traffic law, merged traffic tickets and more • DWI and Chun • Ask the Experts

5


Tuition fees Reg. Fee Reg. Type Seminar # S1507-15378 GENERAL TUITION (REG) $169.00 REG MEMBERS, CO-SPONSORING SECTION (COS) $119.00 COS* MEMBERS, NJSBA (NJB*) $129.00 NJB* MEMBERS, NJSBA YLD (YLD*) $119.00 YLD* Recent admittees (past 2 years) (YL) $145.00 YL Paralegals (PAR) $119.00 PAR Law Students (with Student ID) (STU) $0.00 STU Judges (JUD) $0.00 JUD Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Division DOOR REGISTRATIONS: $189 New Jersey Institute for Continuing Legal Education New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 CustomerService@njicle.com

Photo page 3 Freezing Cold Hash Runners provide can food donations to the Saint James Food Pantry The most successful Freezing Cold Hash Run was held on Saturday, January 9, 2010. A record breaking number of runners participated. Runners made a can food donations to the Saint James Food Pantry of Edison. I would also like to extend my gratitude to all the volunteers , participants and those who made this a fun day.

6


Spring 2010 Mun Law Rev