Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Wednesday, July 11, 2007

Kenneth Vercammen's NJ Laws Email Newsletter E249

Kenneth Vercammen's NJ Laws Email Newsletter E249
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In This Issue

1. Friends of Cynthia Vercammen are invited her 50th party Saturday July 28 7pm

2. Hearsay rule does not apply to Breathalyzer certification

3. Prior refusal to take Breathalyzer counts for enhanced penalty.

4. Alibi notice requirement may violate 5th Amendment.

5. Upcoming Charity races

6. New DWI testing machine faces Additional questions by the Court.
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1. Friends of Cynthia Vercammen are invited her 50th party

Saturday, July 28 - 7pm

D.J. , karaoke, 8 person Hot tub plus Deck and Tiki Bar. 2 Fooz ball tables, ping pong, arcade basketball.

Cynthia's 50th Birthday Party Join the Fun Bunch

LOCATION: South Brunswick NJ at 16 Ireland Brook Dr. near Farrington Lake, off Route 130 and Rt. 522)

Directions: Visit our website at www.njlaws.com or call and we will fax directions

Kenneth Vercammen, Esq. at (732) 572-0500 (Law office) or 732-940-8962 (evening)

Yes, We will be attending the party - fax back to Law Office Fax: (732) 572-0030


Name: _____________________________

E-mail: ____________________________

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2. Hearsay rule does not apply to breathalyzer certification. State v. Dorman 393 N.J. Super. 28 (App. Div. 2007)

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).
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3. Prior refusal to take breathalyzer counts for enhanced penalty. State v. Breslin __ N.J. Super. __ A-6074-05T3 5/9/07

Defendant appealed from a judgment convicting him of refusal to submit a breath sample, N.J.S.A. 39:4-50.2, and the imposition of a two-year suspension of his driving privileges as a second offender, N.J.S.A. 39:4-50.4a. Defendant argued that he should not be considered a second offender under N.J.S.A. 39:4-50.4a because his prior conviction for refusal to submit a breath sample was obtained when the burden of proof required for such a conviction was the preponderance of the evidence standard.

As to defendant's contention that he should not be considered a second offender under N.J.S.A. 39:4-50.4a, the court held that there is no just reason to nullify a prior refusal conviction based upon a lesser burden of proof from being considered in determining a defendant's second-offender status under N.J.S.A. 39:4-50.4a after a second conviction for the same refusal offense based upon the criminal standard of proof.
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4. Alibi notice requirement may violate 5th Amendment. State v. Bradshaw 392 N.J. Super. 425 (App. Div. 2007)

The court held that application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the Rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 N.J. Super. 346 (App. Div. 1974) and State v. Gonzalez, 223 N.J. Super. 377 (App. Div.), certif. denied, 111 N.J. 589 (1988).
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5. Upcoming Charity races:

7/14/07 Belmar Five Mile Run 5 mile, 8:30am Belmar NJ 732-571-2162 free food at Bar A after race and reduced price drinks. Play Volleyball at Bar A.

7/22/2007 Jersey State Triathlon USAT Sanctioned Mercer County Park

7/28/07 Ocean Grove Biathlon 2M run, 300 yd swim Ocean Grove fast short event. spend the rest of the day at the beach.

7/24/07 RVRR Summer 5k & kids races in New Brunswick. NEW FOR 2007!Due to continued construction at Donaldson Park (our home for 23 years, RVRR moved the races across the river. The races will begin at the south-center of the Buccleuch

Park near the Senior Center (on Huntington Street), and will be 2 loops of 2.5K each. There will be only one major hill each lap, but the course is accurately measured, and we'll have the usual traffic control, water at the finish line, and awards presented within 30 minutes of the finish.NEW LOCATION!! Buccleuch Park, New Brunswick NJ (Easton Avenue across from St. Peters Hospital http://www.rvrr.org/

7/29/2007 The Staten Island Flat as a PANCAKE Sprint TRI & LUMPY PANCAKE Olympic Distance Tri 1/4 mile swim or 2 mile run, 12 mile bike, 5k run or .93 swim, 24 mile bike, 10k run, 10am Staten Island NY 732-841-2558

7/29/2007 Long Branch Sprint Triathlon Series-2 .5k swim, 9.5 mile bike, 3 mile run 6:45am Long Branch NJ 732-614-6028

8/4/07 Neptune City Day 5k, 8:00 Neptune City

8/5/07 Sea Girt 5K 8:30am Sea Girt

8/11/07 San Francisco Bay 5k

8/18/07 Bradley Beach 5k Bradley Beach

8/25/2007 Saturday Tri/Du the Wildwoods 1/4 mile swim, 11 mile bike, 3.1 mile run or 2 mile run, 11 mile bike, 3.1 mile run , 7:30am North Wildwood NJ 609-374-6495

More events at http://www.njlaws.com/calendar_of_community_events.htm
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6. New DWI testing machine faces additional questions by the Court.

For over the past several years, the courts have been faced with the question of whether the new DWI Alcotest 7110 breath testing machine is reliable. The NJ Supreme Court has directed further hearings into this new machine. The following is the State v CHUN TIMETABLE

IF NO TESTIMONIAL HEARINGS OF EXPERTS:

5/22/07 Amended Remand Orde

5/30/07 Source Codes due to respective software houses

(7 days from May 23)

8/28/07 Software Houses' reports due to Special Master

(90 days from receipt of source codes 5/31/07)

9/11/07 Special Master's report due to Supreme Court

(14 days from receipt of experts' reports)

IF TESTIMONIAL HEARINGS ARE HELD:

5/22/07 Amended Remand Order

5/30/07 Source Codes due to respective software houses

(7 days from May 23)

8/28/07 Software Houses' reports due to Special Master

(90 days from receipt of source codes 5/31/07)

10/12/07 Testimonial hearings to be completed

(45 days of receipt of experts' report)

10/26/07 Special Master's report due to Supreme Court

(14 days from conclusion of hearings)

After over two years of litigation in State v. Chun, approximately 21,000 pages of documents have been disclosed, a 41 day hearing has been held before Judge King spanning 8,500 pages of transcripts, Judge King issued a 268 page opinion, and the case has been briefed and argued before the Supreme Court. Ultimately, the Supreme Court ordered Dräger, the Alcotest manufacturer, to provide the software (source code) employed in the Alcotest, so that a defense selected software house can evaluate the source code to identify possible errors.

This was a hard fought battle for the defense attorneys. The defense attorneys have collectively expended in excess of six thousand uncompensated billing hours. They also have collectively spent in excess of $50,000 for experts, transcripts, brief printing, etc.

The Defense has retained a software expert, at its own expense, who tells them that based on industry averages and his vast experience, an analysis of the source code by a software house will likely produce numerous programming errors as well as the reasonable possibility that the readings may not be accurate for various programming shortcuts used in analyzing the breath samples.

Even Microsoft routinely sends out patches for its programs as it recognizes glitches in the programs. The Alcotest is produced by a small breath testing company that admitted during the hearing that it uses the same type of microprocessor chip that was used more than 15 years ago in video games.

The volunteer defense attorneys have requested that other defense Attorneys and anyone interested in the making sure this new machine is accurately tested to please contribute to the cost of the source code review and ask your affected clients to do the same. Such contributions will be used solely to fund the source code evaluation, and will not be used for any costs that have been already incurred. Municipal Court Attorneys and individuals interested in the "Innocent until proven Guilty" constitutional guarantee may be interested in making a small contribution. Please make any checks payable to the defense selected software house, "Base One Technologies", and please send them to:


SAMUEL LOUIS SACHS

Princeton Windsor Office Park

379 Princeton-Hightstown Road

P.O. Box 968

East Windsor, NJ 08520

(609) 448-2700

Fax: (609) 448-8883

If you would like to learn more about Base One, please visit their website at www.base-one.com.
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Thank you for reading our newsletter! God Bless America USA #1

Our law blogs:

Vercammen NJLaw Blog-http://njlaws1.blogspot.com/

NJ Criminal Law Blog - http://njcriminallaw.blogspot.com/

NJ Traffic Law & Municipal Court Blog - http://traffic-law.blogspot.com/

NJ Personal Injury & Civil Law Blog- http://njlawspersonalinjury.blogspot.com/

NJ Elder Law Blog -http://elder-law.blogspot.com/

NJ Drug Law Blog - http://drugarrest.blogspot.com/

We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.

"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor

This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.

Free T- shirts and soda can holders available for all current and past clients. Please come into office.
____________________________

Editor's Note and Disclaimer:

All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

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

Kenneth Vercammen's NJ Laws Email Newsletter E248

Kenneth Vercammen's NJ Laws Email Newsletter E248
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In This Issue

1. Preparing the Living Will is only the First Step

2. US Supreme Court Rules passengers in cars have search rights

3. Charity Running Races (Pine Beach - USTAF - Championship June 24)

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1. Preparing the Living Will is Only the First Step (By Christopher D. Reedy, Esquire of Begley & Bookbinder)

At the end of 2004 and the beginning of 2005, you could hardly open a newspaper, or watch the nightly news and not be confronted with the case of Terri Schiavo. In 1990, after collapsing in her home, Terri suffered brain damage and became dependant on a feeding tube. The legal battle to determine the fate of Terri lasted over seven years and involved both state and federal courts, as well as state and federal legislation. At issue amongst all of the legal battles was whether or not to continue the use of the feeding tube. Her husband stated that she had told him that she did not wish to be kept on life support with no hope of recovery. Terri's parents did not agree with this and this led to a trial where a judge was responsible for determining what Terri would have wanted to do. After 15 years of being institutionalized and being diagnosed with a persistent vegetative state, the battle to determine the fate of Terry was finally settled when her feeding tube was removed and she passed away on March 31, 2005. The Schiavo case brought national attention to the necessity of having a living will. Had Terri had a living will, her wishes would have been known and could have been followed without court intervention.

Because of the attention brought by the Schiavo case, more people are preparing living wills, so that there end of life decisions can be followed. However, too often people return from their attorney's office, with their newly created living will and stick it in a safe or a safety deposit box, without talking to anyone in their family about their decisions. It is definitely important to have a living will prepared for you that expresses your wishes, but the preparing of the living will should only be the starting point. After you have prepared your living will, you should sit down with your family and discuss what the document says and explain exactly what your wishes are. That way, your family will know what decisions you have made and can ensure that they are followed. The importance of discussing your decisions with your family can not be understated. You could very easily be presented with a situation where the hospital has misinterpreted one of the clauses of the living will, and is not following through with what your wishes are. If your family knows what your wishes are, they will be able to ensure that they are followed.

Discussing your decision with your family may also prevent fights later on. Without discussing your decision, you could have two different family members who believe they know what your intentions really are. This could lead to fights or resentment if your health care representative has to make a decision that one of the family members disagrees with. It is important to talk to all members of your family and not just your health care representative. By discussing your decision ahead of time, you can make sure that the entire family is on the same page and hopefully prevent disagreements in the future.

Discussing your decision will also help to prevent guilt on the part of your health care representative. Oftentimes, when a health care representative has to make a decision, they feel uncomfortable making the decision, or later feel guilty about the decision they made. By discussing this before hand, you can ensure that they understand that all you are asking them to do is carry out your wishes. You are not asking them to make a decision, just to ensure that the decision that you have already made gets carried out. Discussing it beforehand can make the health care representative's job easier at a very stressful time.

Our office would recommend to all of our clients who took their living will home and put them in a desk drawer without discussing the contents of it with their family, to schedule a family meeting and go over the document. Not only may it prevent fights down the road between family members, but it will also make sure that your decision is carried out and you will not have to end up in a lengthy legal battle like Terri Schiavo's family.

Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
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2. US Supreme Court Rules passengers in cars have search rights

Brendlin v. California No. 06-8120 Decided June 18, 2007

Police officers stopped a car to check its registration without reason to believe it was being operated unlawfully. One of the officers recognized petitioner Brendlin, a passenger in the car. The police verified that Brendlin was a parole violator and officers arrested Brendlin and searched him, the driver and the car finding methamphetamine paraphernalia. Brendlin was charged with possessing and manufacturing meth and moved to suppress the evidence obtained from the search of his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to stop the car which made the seizure of his person unconstitutional. The unanimous opinion recognized that passengers in vehicles stopped by the police are covered by the fourth amendment and may challenge the legality of the stop if arrested.

Held: when the police make a traffic stop, a passenger in the car, like the driver, is seized for fourth amendment purposes and so may challenge the stop's constitutionality.

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3. Charity Running Races

June 24 - Pine Beach 5k & One Mile Riverside Run - 9am - 1 mile - 8:15am - Pine Beach, NJ (732 505 9554), http://www.pinebeach5k.com/

The 2007 event is the ninth annual race on this fast, scenic, USATF certified 3.1 mile course along the Toms River and through the quiet streets of Pine Beach.

All roads will be closed to traffic. There will be two water stops, and clocks at miles 1 and 2. Strollers and baby joggers are welcome.

After the race, there will be an awards ceremony on the Vista Park field. Cash awards ($150, $125, $100) will be given to the top three male and female runners, with a $100 bonus award for setting a new course record. A $75 award for the top male and female master runner. Additional age group awards will be given out along with other special awards. Check the awards page for a breakdown of all awards and categories.

Again this year will be the Team Challenge. Awards will be given to the first team in each category: male, female, and mixed. Teams will consist of three runners. Each team member must complete and sign a race application.



This race is now a USATF New Jersey Championship event for USATF Members. USATF Members will receive 700 points as well as a reduced pre-registration fee.

The Outback Steakhouse, Bricktown, will provide a post race BBQ for all race participants.



June 30- Frog Hollow 5k- Free food, use swim club for entire day
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The Kenneth Vercammen NJ Laws newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.

Free T- shirts and soda can holders available for all current and past clients. Please come into office.

Our law blog- http://njlaws1.blogspot.com/

Thank you for reading our newsletter! God Bless America USA #1

We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.

"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
____________________________
Editor's Note and Disclaimer:

All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

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

Kenneth Vercammen's NJ Laws Email Newsletter E247

Kenneth Vercammen's NJ Laws Email Newsletter E247
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In This Issue

1. Upcoming events

2. Statute of Limitations in 1983 Civil Rights Suit Begins on Arrest.

3. No Legal Malpractice When Conviction Reversed.

4. DWI Stop Suppressed Where Police Did Not See Reasons to Believe Defendant Was Intoxicated.

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Greetings Kenneth Vercammen, We switched effective June 1, 2007 to an improved newsletter email service. We have been informed some your email addresses may be lost in the transfer process. Therefore, if you don't receive your next newsletter by June 15, please send us an email to advise us. Thank You. To unsubscribe, follow Constant Contact's button at the bottom.
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1. Upcoming events

June 11

ICLE Mun Ct - Handling Cases in the Busiest Courts MayFair Farm, West Orange. Call (732) 249-5100
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2. Statute of Limitations in 1983 Civil Rights Suit Begins on Arrest.

Wallace v. Kato U.S. Supreme Court (Decided February 21, 2007) 05-1240.

The statute of limitations on a 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Source: 187 N.J.L.J. 783. This case limits Civil Rights Suits.
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3. No Legal Malpractice When Conviction Reversed.

Newton v. Office of Essex County Public Defender (Appellate Division Decided February 20, 2007) 04-2-6533. Unpublished.

The Law Division judge properly dismissed plaintiff's legal-malpractice complaint, rejecting his argument that he was inadequately represented by counsel in his criminal proceedings, leading to an allegedly defective plea and an improper sentence. Inter alia, the judge justifiably relied on Alampi v. Russo, which denied recovery in a legal-malpractice case arising out of a guilty plea that was not vacated or reversed in the criminal appellate process. Source: 187 N.J.L.J. 785
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4. DWI Stop Suppressed Where Police Did Not See Reasons to Believe Defendant Was Intoxicated.

State v. Stongvila (Appellate Division Decided January 30, 2007) A-3582-04T3. Not Approved For Publication.

Conviction after a trial de novo of refusing to submit to a Breathalyzer test in violation of N.J.S.A. 39:4-50.2 reversed; a police officer was working undercover outside a liquor store; a liquor store employee told the officer that the defendant seemed to be intoxicated and was rude, loud, and boisterous while he was in the store; the officer saw the defendant leave the store, walk to his car, and drive away but did not see anything that indicated that the defendant was intoxicated; nonetheless, the officer asked his dispatcher to have a patrol car follow the defendant, and another officer stopped the defendant based solely on the dispatcher's report of a possible intoxicated driver; the State's evidence was insufficient to support the reasonable suspicion required to justify an investigatory stop, and the stop was illegal; furthermore, there was no probable cause for the request to submit to a Breathalyzer test because the request was based on evidence that was obtained after the illegal stop and that would have been suppressed if the State had proceeded on a charge of driving while intoxicated. Source: Facts-on-Call Order No. 20866
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This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.

Free T- shirts and soda can holders available for all current and past clients. Please come into office.

Our law blog- http://njlaws1.blogspot.com/

Thank you for reading our newsletter! God Bless America USA #1

We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.

"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor
_________________________
Editor's Note and Disclaimer:

All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

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
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