Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate 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.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Wednesday, September 12, 2018

NJSA 26:2B-17 ATRA Alcohol Treatment and Rehabilitation Act

NJSA 26:2B-17 ATRA Alcohol Treatment and Rehabilitation Act


Our office represents people charged with criminal offenses and disorderly offenses. We provide representation throughout New Jersey. Criminal charges can cost you.   If convicted, you can face high fines, jail, Probation and other penalties.   Don't give up!  Our Law Office can provide experienced attorney representation for criminal violations. Our website KennethVercammen.com provides information on criminal offenses we can be retained to represent people.
   If someone is charged with a criminal or municipal offense and was intoxicated, they should seek professional help.   If they seek professional help, occasionally a Motion can be made to hold the charges while the person seeks treatment.
26:2B-7 Public policy under ATRA    It is the policy of the State of New Jersey that alcoholics and intoxicated  persons may not be subjected to criminal prosecution because of their  consumption of alcoholic beverages, but rather should be afforded a continuum  of treatment in order that they may lead normal lives as productive members of  society.
26:2B-8.  Definitions     The following words as used in this act shall, unless the context requires otherwise, have the following meanings:

     Administrator  means the person in charge of the operation of a facility,  or his designee.

     Admitted  means accepted for treatment at a facility.

      Alcoholic  means any person who chronically, habitually or periodically consumes alcoholic beverages to the extent that:  a. such use substantially injures his health or substantially interferes with his social or economic functioning in the community on a continuing basis, or b. he has lost the power  of self-control with respect to the use of such beverages.

     Authorized persons  means persons who serve as volunteer first aid or ambulance squad members, para-professional medical personnel and rehabilitated alcoholics.

     Commissioner  means the Commissioner of Health.

      Department  means the State Department of Health.

      Director  means the Director of the Division of Alcoholism.

      Division  means the Division of Alcoholism.

      Facility  means any public, private place, or portion thereof providing services especially designed for the treatment of intoxicated persons or alcoholics;  including, but not limited to intoxication treatment centers, inpatient treatment facilities, outpatient facilities, and residential aftercare facilities.

      Incapacitated  means the condition of a person who is:  a. as a result of  the use of alcohol, unconscious or has his judgment so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment, b. in need of substantial medical attention, or c. likely to suffer substantial physical harm.

     Independent physician  means a physician other than one holding an office  or appointment in any department, board or agency of the State of New Jersey or  in any public facility.

     Intoxicated person  means a person whose mental or physical functioning is substantially impaired as a result of the use of alcoholic beverages.

     Patient  means any person admitted to a facility.

      Private facility  means a facility other than one operated by the Federal  Government, the State of New Jersey or any political subdivision thereof.

      Public facility  means a facility operated by the State of New Jersey or  any political subdivision thereof.

      Treatment  means services and programs for the care or rehabilitation of  intoxicated persons and alcoholics, including, but not limited to, medical,  psychiatric, psychological, vocational, educational, recreational, and social  services and programs.
   NJSA 26:2B-17. Violators of municipal ordinance or disorderly persons not arrested for misdemeanor; taking to facility; determination of alcoholism; commitment; request; stay of criminal proceeding; hearing; treatment; discharge; report to court; sentence; credits
NJSA 26:2B-17.: Any person who is arrested for a violation of a municipal ordinance, or for a disorderly persons offense, and who is not also arrested for a misdemeanor, and who the arresting police officer has reasonable cause to believe is intoxicated, may be taken by a police officer directly to an intoxication treatment center or other appropriate facility. To determine whether or not such person is intoxicated, the police officer may request the person to submit to any reasonable test, including, but not limited to, tests of his coordination, coherency of speech, and breath.
The administrator of any intoxication treatment center, or of any other facility, shall cause any such person to be examined by a physician or by a medically competent individual designated by the department and under the supervision of a physician. If the physician or any other medically competent individual designated by the department determines upon examination that such person is intoxicated, and the administrator determines that adequate and appropriate treatment is available, the person shall be admitted. Any such person may be detained at the center or other facility until he is no longer intoxicated, but in any event, not longer than 48 hours from the date of admission. At such time as the person is to be discharged from the facility, be shall be informed by the administrator that if he is an alcoholic who would benefit by treatment he may, in the discretion of the court, be afforded treatment in lieu of prosecution, and that if he so chooses he may be examined at the facility for the purpose of determining whether he is an alcoholic who would benefit by treatment. If the person requests an examination, he shall be examined by a physician at the facility during a period of time not to exceed 48 hours. The police shall maintain such security conditions as may be necessary. Prior to releasing the person from the center or other facility, the administrator shall notify the police who shall transport him therefrom for proceedings in the case.
When a person who is arrested for a violation of a municipal ordinance, or disorderly persons offense, and who is not also arrested for a misdemeanor, is brought before the court on such charge, the court shall inform him that he is entitled to request a medical examination to determine whether or not he is an alcoholic if he has been admitted to a facility pursuant to the provisions of the preceding paragraph and has not received a medical examination by a physician. The court shall further inform the defendant of the consequences which follow a determination by a physician that he is an alcoholic who would benefit by treatment. Any request for an examination shall be in writing. If the person makes such request, the proceedings shall be stayed for the period during which the request is under consideration by the court. If the defendant requests an examination, the court shall appoint a physician to conduct the examination at an appropriate location designated by it.
In no event shall a request for an examination, any statement made by the defendant during the course of an examination or any finding of a physician pursuant to the provisions of this section be admissible against the defendant in any proceeding.
A physician who conducts an examination pursuant to the provisions of this section, shall determine whether or not the defendant is an alcoholic who would benefit by treatment. The physician shall report his findings to the court together with the facts upon which the findings are based and the reasons therefor as soon as possible but in any event not longer than 3 days after the completion of the examination.
If the physician reports that the defendant is an alcoholic who would benefit by treatment, the court shall inform the defendant that he may request commitment to the division and advise him of the consequences of the commitment.
If the defendant requests commitment, and if the court finds that the defendant is an alcoholic who would benefit by treatment, the court may stay the criminal proceeding and commit the defendant to the division as an inpatient or as an outpatient, whichever the court deems appropriate, for a specified period. The term of inpatient treatment shall not exceed 30 days, the term of outpatient treatment shall not exceed 60 days, and the total combined period of commitment, including both inpatient and outpatient treatment, if both are ordered, shall not exceed 90 days. The court shall inform the defendant that if he is committed the proceeding will be stayed for the term of the commitment.
In determining whether or not to grant the request for commitment, the court shall consider the report of the physician, the nature of the offense with which the defendant is charged, the past criminal record, if any, of the defendant, and any other relevant evidence.
If the court decides that the defendant's request for commitment should be granted, the court shall commit the defendant to the division if the division reports that adequate and appropriate treatment is available at a facility; provided, however, that if the court determines that commitment should be granted and the defendant is charged with a first offense, the proceedings shall be stayed until adequate and appropriate treatment is available at a facility. In cases where the defendant is not charged with a first offense and the division reports that adequate and appropriate treatment is not available, the court may, in its discretion, order that the stay of the proceeding remain outstanding until such time as adequate and appropriate treatment is available.
As a condition to the issuance of any commitment order by the court pursuant to the provisions of this section, the defendant shall consent in writing to the terms of the commitment.
If the physician reports that the defendant is not an alcoholic who would benefit by treatment, the defendant shall be entitled to request a hearing to determine whether he is an alcoholic who would benefit by treatment. Thereupon the court may, of its own motion, or shall upon the request of the defendant or his counsel, appoint an independent physician to examine the defendant and to testify at the hearing. If the court determines that the defendant is an alcoholic who would benefit by treatment, the procedures and standards applicable to a defendant who is determined by the court, following the report of the first examining physician to be an alcoholic who would benefit by treatment, shall apply to the defendant.
If the court does not order that the defendant shall be afforded treatment in lieu of prosecution pursuant to the provisions of this section, the stay of the proceedings shall be vacated.
At any time during the term of commitment, the administrator may transfer any inpatient to an outpatient program if he finds that the patient is a proper subject for outpatient treatment; provided, however, that the administrator may retransfer the patient to an inpatient program if he finds that the person is not suitable for outpatient treatment.
Any patient committed to the division pursuant to this section shall be discharged from the facility to which the division has caused him to be admitted if at any time the administrator determines that treatment will no longer benefit him; provided, however, that such patient shall in any event be discharged at the termination of the period of commitment specified in the court order.
At the end of the commitment period, when the patient is discharged, or when the patient terminates treatment at the facility, whichever first occurs, the director shall report to the court on whether or not the defendant successfully completed the treatment program, together with a statement of the reasons for his conclusion. In reaching his determination of whether or not the defendant successfully completed the treatment program, the director shall consider, but shall not be limited to, whether the defendant cooperated with the administrator and complied with the terms and conditions imposed on him during his commitment. If the report states that the defendant successfully completed the treatment program, the court shall dismiss the charges pending against the defendant. If the report does not so state, or if the defendant has not completed the term of commitment ordered by the court, then, based on the report and any other relevant evidence, the court may take such action as it deems appropriate, including the dismissal of the charges or the revocation of the stay of the proceedings. In the event that the court convicts a defendant who has been committed in lieu of prosecution pursuant to the provisions of this section and sentences him to a term of incarceration, the court shall reduce the term of incarceration by the period during which the defendant was afforded treatment in lieu of prosecution pursuant to this section.
The State, municipal and local police shall, in cooperation with the department, provide temporary security at facilities to which persons are taken pursuant to this section, where it is necessary that such security be provided for the person arrested.
26:2B-18. Person under treatment at facility; subjection to supervisory powers of administrator Each person who receives treatment at a facility shall be subject to the supervisory powers of the administrator exercised in accordance with rules and regulations of the department.
26:2B-19. Rights of juveniles All rights afforded any person under this act shall apply to juveniles as may be consistent with present statutory law applying to minors.
CONCLUSION
   If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school.  When your life and job is on the line, hire the best attorney available.

NJSA 18A:6-7.1 Criminal Record Check in Public School Employment, Volunteer Service

NJSA 18A:6-7.1 Criminal Record Check in Public School Employment, Volunteer Service

1.A facility, center, school, or school system under the supervision of the Department of Education and board of education which cares for, or is involved in the education of children under the age of 18 shall not employ for pay or contract for the paid services of any teaching staff member or substitute teacher, teacher aide, child study team member, school physician, school nurse, custodian, school maintenance worker, cafeteria worker, school law enforcement officer, school secretary or clerical worker or any other person serving in a position which involves regular contact with pupils unless the employer has first determined consistent with the requirements and standards of this act, that no criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division, or the State Bureau of Identification which would disqualify that individual from being employed or utilized in such capacity or position. An individual employed by a board of education or a school bus contractor holding a contract with a board of education, in the capacity of a school bus driver, shall be required to meet the criminal history record requirements pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1). A facility, center, school, or school system under the supervision of the Department of Education and board of education which cares for, or is involved in the education of children under the age of 18 may require criminal history record checks for individuals who, on an unpaid voluntary basis, provide services that involve regular contact with pupils. In the case of school districts involved in a sending-receiving relationship, the decision to require criminal history record checks for volunteers shall be made jointly by the boards of education of the sending and receiving districts.
An individual, except as provided in subsection g. of this section, shall be permanently disqualified from employment or service under this act if the individuals criminal history record check reveals a record of conviction for any crime of the first or second degree; or
a.An offense as set forth in chapter 14 of Title 2C of the New Jersey Statutes, or as set forth in N.J.S.2C:24-4 and 2C:24-7, or as set forth in R.S.9:6-1 et seq., or as set forth in N.J.S.2C:29-2; or
b.An offense involving the manufacture, transportation, sale, possession, distribution or habitual use of a "controlled dangerous substance" as defined in the "Comprehensive Drug Reform Act of 1987," N.J.S.2C:35-1 et al. or "drug paraphernalia" as defined pursuant to N.J.S.2C:36-1 et seq.; or
c. (1) A crime involving the use of force or the threat of force to or upon a person or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder; or
(2)A crime as set forth in chapter 39 of Title 2C of the New Jersey Statutes, a third degree crime as set forth in chapter 20 of Title 2C of the New Jersey Statutes, or a crime as listed below:
Recklessly endangering another person N.J.S.2C:12-2
Terroristic threats N.J.S.2C:12-3
Criminal restraint N.J.S.2C:13-2
Luring, enticing child into motor
vehicle, structure or isolated area P.L.1993, c.291 (C.2C:13-6)

Causing or risking widespread injury
or damage N.J.S.2C:17-2

Criminal mischief N.J.S.2C:17-3
Burglary N.J.S.2C:18-2
Usury N.J.S.2C:21-19
Threats and other improper influence N.J.S.2C:27-3
Perjury and false swearing N.J.S.2C:28-3
Resisting arrest N.J.S.2C:29-2
Escape N.J.S.2C:29-5;
or
(3)Conspiracy to commit or an attempt to commit any of the crimes described in this act.
d.For the purposes of this section, a conviction exists if the individual has at any time been convicted under the laws of this State or under any similar statutes of the United States or any other state for a substantially equivalent crime or other offense.
e.Notwithstanding the provisions of this section, an individual shall not be disqualified from employment or service under this act on the basis of any conviction disclosed by a criminal record check performed pursuant to this act without an opportunity to challenge the accuracy of the disqualifying criminal history record.
f.When charges are pending for a crime or any other offense enumerated in this section, the employing board of education shall be notified that the candidate shall not be eligible for employment until the commissioner has made a determination regarding qualification or disqualification upon adjudication of the pending charges.
g.This section shall first apply to criminal history record checks conducted on or after the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.); except that in the case of an individual employed by a board of education or a contracted service provider who is required to undergo a check upon employment with another board of education or contracted service provider, the individual shall be disqualified only for the following offenses:
(1)any offense enumerated in this section prior to the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.); and
(2)any offense enumerated in this section which had not been enumerated in this section prior to the effective date of P.L.1998, c.31 (C.18A:6-7.1c et al.), if the person was convicted of that offense on or after the effective date of that act.
L.1986,c.116,s.1; amended 1989, c.104, s.4; 1989, c.156; 1998, c.31, s.5; 2002, c.119, s.3; 2007, c.82, s.1.

18A:6-7.1b Initial criminal history check for substitutes

2.An individual employed by a board of education in any substitute capacity or position, who is rehired annually by that board, shall only be required to undergo a criminal history record check as required pursuant to P.L.1986, c.116 (C.18A:6-7.1 et seq.) upon initial employment, provided the substitute continues in the employ of at least one of the districts at which the substitute was employed within one year of the approval of the criminal history record check.
L.1987,c.164,s.2; amended 1998, c.31, s.6.
18A:6-7.1c Employment of applicant on emergent basis, conditions.
12.A board of education or contracted service provider may employ an applicant on an emergent basis for a period not to exceed three months, pending completion of a criminal history records check and, with respect to a bus driver applicant, a check for the drivers record of alcohol and drug-related motor vehicle violations pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1), if the board or service provider demonstrates to the Commissioner of Education that special circumstances exist which justify the emergent employment. The boards or service providers request to the commissioner shall include: (1) a description of the vacant position that needs to be filled; (2) a statement describing the boards or contract providers good faith efforts to fill the position on a timely basis or a statement describing the unanticipated need for the applicants employment; and (3) a sworn statement submitted by the applicant attesting that the applicant has not been convicted or does not have a charge pending for a crime or any other offense enumerated in section 1 of P.L.1986, c.116 (C.18A:6-7.1) or a record of alcohol and drug-related motor vehicle violations pursuant to section 6 of P.L.1989, c.104 (C.18A:39-19.1).
In the event that the background check is not completed within three months, the board or contracted service provider may petition the commissioner for an extension of time, not to exceed two months, in order to retain the employee.
L.1998,c.31,s.12; amended 2003, c.66, s,1.

NJAC 1:7-1 Opening and Closing Statements in a Jury Trial

NJAC 1:7-1 Opening and Closing Statements in a Jury Trial


(a) Opening Statement. Before any evidence is offered at trial, the State in a criminal action or the plaintiff in a civil action, unless otherwise provided in the pretrial order, shall make an opening statement. A defendant who chooses to make an opening statement shall do so immediately thereafter.

(b) Closing Statement. After the close of the evidence and except as may be otherwise provided in the pretrial order, the parties may make closing statements in the reverse order of opening statements. In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.
Note: Source-R.R. 3:7-3, 4:44-1, 7:8-4; former rule redesignated as paragraph (a), paragraph (b) adopted and caption amended July 15, 1982 to be effective September 13, 1982; paragraph (a) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 12, 2002 to be effective September 3, 2002.
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
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 many personal injury matters, Municipal Court trials, Arbitration hearings and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

NJAC 1:13-14.5 Failure to appear

NJAC 1:13-14.5 Failure to appear


1:13-14.5 Failure to appear
If, after appropriate notice, the licensee fails to appear at a preliminary fatal accident hearing scheduled pursuant to N.J.S.A. 39:5-30, the judge shall issue an order immediately suspending or continuing the suspension of the licensees driving privileges. Thereafter, the provisions of N.J.A.C. 1:1-14.4 shall apply.

N.J.A.C. 1:1-10.4 (2016)

NJAC 1:13-14.3 Agency case

NJAC 1:13-14.3 Agency case


1:13-14.3 Agency case
In excessive points and persistent violator cases, MVCs case will be based on the licensees driving record, a prehearing conference report, relevant notices and orders of suspension, certified proof of relevant mailings to the licensee, and any other documentary evidence or legal briefs necessary.

NJAC 1:13-1.1 Applicability

NJAC 1:13-1.1 Applicability


1:13-1.1 Applicability
(a) The rules of this chapter shall apply to hearings transmitted by the Motor Vehicle Commission (MVC) except fatal accident cases, which shall be conducted in accordance with N.J.S.A. 39:5-30(b) and (e) and N.J.A.C. 1:13-14.5.

(b) Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

NJAC 1:1-18.6 Final decision; stay of implementation

NJAC 1:1-18.6 Final decision; stay of implementation



1:1-18.6 Final decision; stay of implementation 

(a) Within 45 days after the receipt of the initial decision, or sooner if an earlier time frame is mandated by Federal or State law, the agency head may enter an order or a final decision adopting, rejecting or modifying the initial decision. Such an order or final decision shall be served upon the parties and the Clerk forthwith.

(b) The agency head may reject or modify conclusions of law, interpretations of agency policy, or findings of fact not relating to issues of credibility of lay witness testimony, but shall clearly state the reasons for so doing. The order or final decision rejecting or modifying the initial decision shall state in clear and sufficient detail the nature of the rejection or modification, the reasons for it, the specific evidence at hearing and interpretation of law upon which it is based and precise changes in result or disposition caused by the rejection or modification.

(c) The agency head may not reject or modify any finding of fact as to issues of credibility of lay witness testimony unless it first determines from a review of a record that the findings are arbitrary, capricious or unreasonable, or are not supported by sufficient, competent, and credible evidence in the record.

(d) An order or final decision rejecting or modifying the findings of fact in an initial decision shall be based upon substantial evidence in the record and shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent and credible evidence in the record.

(e) If an agency head does not reject or modify the initial decision within 45 days and unless the period is extended as provided by N.J.A.C. 1:1-18.8, the initial decision shall become a final decision.

(f) When a stay of the final decision is requested, the agency shall respond to the request within 10 days.

NJAC 1:1-15.9 Expert and other opinion testimony

NJAC 1:1-15.9 Expert and other opinion testimony


1:1-15.9 Expert and other opinion testimony
(a) If a witness is not testifying as an expert, testimony of that witness in the form of opinions or inferences is limited to such opinions or inferences as the judge finds:
1. May be rationally based on the perception of the witness; and
2. Are helpful to a clear understanding of the witness testimony or to the fact in issue.
(b) If a witness is testifying as an expert, testimony of that witness in the form of opinions or inferences is admissible if such testimony will assist the judge to understand the evidence or determine a fact in issue and the judge finds the opinions or inferences are:
1. Based on facts and data perceived by or made known to the witness at or before the hearing; and
2. Within the scope of the special knowledge, skill, experience or training possessed by the witness.
(c) Testimony in the form of opinion or inferences which is otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the judge.
(d) A witness may be required, before testifying in terms of opinions or inference, to be first examined concerning the data upon which the opinion or inference is based.
(e) Questions calling for the opinion of an expert witness need not be hypothetical in form unless, in the discretion of the judge, such form is required.
(f) If facts and data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, those facts and data upon which an expert witness bases opinion testimony need not be admissible in evidence.

N.J.A.C. 1:1-15.10 (2016)

NJAC 1:1-15.8 Witnesses; requirements for testifying;

NJAC 1:1-15.8 Witnesses; requirements for testifying;


1:1-15.8 Witnesses; requirements for testifying; testifying by telephone
(a) Except as otherwise provided by this subchapter, by statute or by rule establishing a privilege:
1. Every person is qualified to be a witness; and
2. No person has a privilege to refuse to be a witness; and
3. No person is disqualified to testify to any matter; and
4. No person has a privilege to refuse to disclose any matter or to produce any object or writing; and
5. No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing but the judge presiding at the hearing in a contested case may not testify as a witness.
(b) A person is disqualified to be a witness if the judge finds the proposed witness is incapable of expression concerning the matter so as to be understood by the judge directly or through interpretation by one who can understand the witness, or the proposed witness is manifestly incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of these rules relating to witnesses.
(c) As a prerequisite for the testimony of a witness there must be evidence that the witness has personal knowledge of the matter, or has special experience, training or education, if such is required. Such evidence may be provided by the testimony of the witness. In exceptional circumstances, the judge may receive the testimony of a witness conditionally, subject to evidence of knowledge, experience, training or education being later supplied in the course of the proceedings. Personal knowledge may be obtained through hearsay.
(d) A witness may not testify without taking an oath or affirming to tell the truth under the penalty provided by law. No witness may be barred from testifying because of religion or lack of it.
(e) Testimony of a witness may be presented by telephone or by video conference call, as prescribed by the Director, if, before the hearing begins, the judge finds there is good cause for permitting the witness to testify by telephone or video conference. In determining whether good cause exists, the judge shall consider:
1. Whether all parties consent to the taking of testimony by telephone;
2. Whether credibility is an issue;
3. The significance of the witness testimony;
4. The reason for the request to take testimony by telephone; and
5. Any other relevant factor.

(f) Testimony of a witness may be given in narrative fashion rather than by question and answer format if the judge permits.

NJAC 1:1-15.7 Exhibits

NJAC 1:1-15.7 Exhibits


1:1-15.7 Exhibits
(a) The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a brief description of the exhibit stated by the offering party or the judge, and the marking directed by the judge. The verbatim record shall also include a record of the exhibits retained by the judge at the end of the proceedings and of the disposition then made of the other exhibits.
(b) Parties shall provide each party to the case with a copy of any exhibit offered into evidence. Large exhibits that cannot be placed within the judges file may be either photographed, attached to the file, or described in the record and committed to the safekeeping of a party. All other admitted exhibits shall be retained in the judges file until certified to the agency head pursuant to N.J.A.C. 1:1-18.1.
(c) The standard marking for exhibits shall be:
1. P = petitioner;
2. R = respondent;
3. A = appellant;
4. J = joint;
5. C = judge;
6. I = intervenor; or

7. Such other additional markings required for clarity as the judge may direct.

NJAC 1:1-15.6 Authentication and content of writings

NJAC 1:1-15.6 Authentication and content of writings


1:1-15.6 Authentication and content of writings
Any writing offered into evidence which has been disclosed to each other party at least 10 days prior to the hearing shall be presumed authentic. At the hearing any party may raise questions of authenticity. Where a genuine question of authenticity is raised the judge may require some authentication of the questioned document. For these purposes the judge may accept a submission of proof, in the form of an affidavit, certified document or other similar proof, no later than 10 days after the date of the hearing.

NJAC 1:1-15.5 Hearsay evidence; residuum rule

NJAC 1:1-15.5 Hearsay evidence; residuum rule


1:1-15.5 Hearsay evidence; residuum rule
(a) Subject to the judges discretion to exclude evidence under N.J.A.C. 1:1-15.1(c) or a valid claim of privilege, hearsay evidence shall be admissible in the trial of contested cases. Hearsay evidence which is admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.

(b) Notwithstanding the admissibility of hearsay evidence, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness.

NJAC 1:1-15.2 Official notice

NJAC 1:1-15.2 Official notice


1:1-15.2 Official notice
(a) Official notice may be taken of judicially noticeable facts as explained in N.J.R.E. 201 of the New Jersey Rules of Evidence.
(b) Official notice may be taken of generally recognized technical or scientific facts within the specialized knowledge of the agency or the judge.

(c) Parties must be notified of any material of which the judge intends to take official notice, including preliminary reports, staff memoranda or other noticeable data. The judge shall disclose the basis for taking official notice and give the parties a reasonable opportunity to contest the material so noticed.

NJAC 1:1-15.12 Prior transcribed testimony

NJAC 1:1-15.12 Prior transcribed testimony


1:1-15.12 Prior transcribed testimony
(a) If there was a previous hearing in the same or a related matter which was electronically or stenographically recorded, a party may, unless the judge determines that it is necessary to evaluate credibility, offer the transcript of a witness in lieu of producing the witness at the hearing provided that the witness testimony was taken under oath, all parties were present at the proceeding and were afforded a full opportunity to cross-examine the witness.
(b) A party who intends to offer a witness transcribed testimony at the hearing must give all other parties and the judge at least 10 days notice prior to the commencement of the hearing of that intention and provide each with a copy of the transcript being offered.
(c) Opposing parties may subpoena the witness to appear personally. Any party may produce additional witnesses and other relevant evidence at the hearing.
(d) Provided the requirements in (a) above are satisfied, the entire controversy may be presented solely upon such transcribed testimony if all parties agree and the judge approves.
(e) Prior transcribed testimony that would be admissible as an exception to the hearsay rule under Evidence Rule 63(3) is not subject to the requirements of this section.

NJAC 1:1-15.11 Stipulations

NJAC 1:1-15.11 Stipulations


1:1-15.11 Stipulations
The parties may by stipulation agree upon the facts or any portion thereof involved in any controversy. Such a stipulation shall be regarded as evidence and shall preclude the parties from thereafter challenging the facts agreed upon.


NJAC 1:1-15.10 Offers of settlement inadmissible

NJAC 1:1-15.10 Offers of settlement inadmissible


1:1-15.10 Offers of settlement inadmissible
Offers of settlement, proposals of adjustment and proposed stipulations shall not constitute an admission and shall not be admissible.

NJAC 1:1-15.1 General rules Evidence

NJAC 1:1-15.1 General rules Evidence


1:1-15.1 General rules Evidence
(a) Only evidence which is admitted by the judge and included in the record shall be considered.
(b) Evidence rulings shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth.
(c) Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein. A judge may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either:
1. Necessitate undue consumption of time; or
2. Create substantial danger of undue prejudice or confusion.
(d) If the judge finds at the hearing that there is no bona fide dispute between the parties as to any unstipulated material fact, such fact may be proved by any relevant evidence, and exclusionary rules shall not apply, except for (c) above or a valid claim of privilege.

(e) When the rules in this subchapter state that the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is subject to a condition, and the fulfillment of the condition is in issue, the judge shall hold a preliminary inquiry to determine the issue. The judge shall indicate which party has the burden of producing evidence and the burden of proof on such issue as implied by the rule under which the question arises. No evidence may be excluded in determining such issue except pursuant to the judges discretion under (c) above or a valid claim of privilege. This provision shall not be construed to restrict or limit the right of a party to introduce evidence subsequently which is relevant to weight or credibility.

NJAC 1:1-14.10 Interlocutory review

NJAC 1:1-14.10 Interlocutory review



1:1-14.10 Interlocutory review 

(a) Except for the special review procedures provided in N.J.A.C. 1:1-12.6 (emergency relief), and 1:1-12.5(e) (partial summary decision), an order or ruling may be reviewed interlocutorily by an agency head at the request of a party.

(b) Any request for interlocutory review shall be made to the agency head and copies served on all parties no later than five working days from the receipt of the written order or oral ruling, whichever is rendered first. An opposing party may, within three days of receipt of the request, submit an objection to the agency head. A copy must be served on the party who requested review. Any request for interlocutory review or objection to a request shall be in writing by memorandum, letter or motion and shall include a copy of any written order or ruling or a summary of any oral order or ruling sought to be reviewed. Copies of all documents submitted shall be filed with the judge and Clerk.

(c) Within 10 days of the request for interlocutory review, the agency head shall notify the parties and the Clerk whether the order or ruling will be reviewed. If the agency head does not so act within 10 days, the request for review shall be considered denied. Informal communication by telephone or in person to the parties or their representatives and to the Clerk within the 10 day period will satisfy this notice requirement, provided that a written communication or order promptly follows.

(d) A party opposed to the grant of interlocutory review may, within three days of receiving notice that review was granted, submit to the agency head in writing arguments in favor of the order or ruling being reviewed. A copy shall be served on the party who requested review.

(e) Where the agency head determines to conduct an interlocutory review, the agency head shall issue a decision, order or other disposition of the review at the earliest opportunity but no later than 20 days from receiving the request for review. Where the interests of justice require, the agency head shall conduct an interlocutory review on an expedited basis. Where the agency head does not issue an order within 20 days, the judges ruling shall be considered conditionally affirmed. The time period for disposition may be extended for good cause for an additional 20 days if both the agency head and the Director of the Office of Administrative Law concur.

(f) Where the proceeding generating the request for interlocutory review has been sound recorded and the agency head requests the verbatim record, the Clerk shall furnish the original sound recording or a certified copy within one day of the request. The party requesting the interlocutory review shall provide the agency head with all other papers, materials, transcripts or parts of the record which pertain to the request for interlocutory review.

(g) The time limits established in this section, with the exception of (e) above, may be extended by the agency head where the need for a delay is caused by honest mistake, accident, or any cause compatible with due diligence.

(h) An agency heads determination to review interlocutorily an order or ruling shall not delay the scheduling or conduct of hearings, unless a postponement is necessary due to special requirements of the case, because of probable prejudice, or for other good cause. Either the presiding judge or the agency head may order a stay of the proceedings, either on their own or upon application. Applications for stays should be made in the first instance to the presiding judge. If denied, the application may be resubmitted to the agency head. Pending review by the agency head, a judge may conditionally proceed on an order or ruling in order to complete the evidential record in a case or to avoid disruption or delay in any ongoing or scheduled hearing.

(i) Except as limited by (l) below and N.J.A.C. 1:1-18.4(a), any order or ruling reviewable interlocutorily is subject to review by the agency head after the judge renders the initial decision in the contested case, even if an application for interlocutory review:

1. Was not made;

2. Was made but the agency head declined to review the order or ruling; or

3. Was made and not considered by the agency head within the established time frame.

(j) In the following matters as they relate to proceedings before the Office of Administrative Law, the Director is the agency head for purposes of interlocutory review:

1. Disqualification of a particular judge due to interest or any other reason which would preclude a fair and unbiased hearing, pursuant to N.J.A.C. 1:1-14.12;

2. Appearances of non-lawyer representatives, pursuant to N.J.A.C. 1:1-5.4;

3. Imposition of conditions and limitations upon non-lawyer representatives, pursuant to N.J.A.C. 1:1-5.5;

4. Sanctions under N.J.A.C. 1:1-14.4 or 14.14 and 14.15 consisting of the assessment of costs, expenses, or fines;

5. Disqualification of attorneys, pursuant to N.J.A.C. 1:1-5.3;

6. Establishment of a hearing location pursuant to N.J.A.C. 1:1-9.1(b); and

7. Appearance of attorneys pro hac vice pursuant to N.J.A.C. 1:1-5.2.

(k) Any request for interlocutory review of those matters specified in (j) above should be addressed to the Director of the Office of Administrative Law with a copy to the agency head who transmitted the case to the Office of Administrative Law. Review shall proceed in accordance with (b) through (g) above.

(l) Orders or rulings issued under (j)1, 2, 3, 5, 6 and 7 above may only be appealed interlocutorily; a party may not seek review of such orders or rulings after the judge renders the initial decision in the contested case.

(m) A judges determination to proceed on the record or to order a new hearing pursuant to N.J.A.C. 1:1-14.13(b) and (c) may only be appealed interlocutorily; a party may not seek review of such orders or rulings after the judge renders the initial decision in the contested case.

NJAC 13:59-1.5 Rejection and Resubmission Procedures

NJAC 13:59-1.5 Rejection and Resubmission Procedures


NJAC13:59-1.5 Rejection and resubmission procedures

(a) Any fingerprint card or Request for Criminal History Record Information form which is rejected will be returned with the submitted fee to the requester or national requester. The procedure as set forth at N.J.A.C. 13:59-1.4 will be utilized for resubmission with the following exception:

1. Fingerprint cards that cannot be classified will be returned to the requester or national requester. The fees which accompanied the fingerprint cards will be retained by the SBI. Upon resubmission, the rejected fingerprint card shall be stapled to the newly taken fingerprint card and both cards shall be submitted with the original rejection form to the SBI. No additional charges shall be assessed for resubmitted fingerprint cards.

(b) No criminal history name search shall be conducted unless the subjects name and date of birth are submitted. Whenever a criminal history name search based upon the particular identifying information supplied produces more than one possible candidate, the SBI 212 Form shall be rejected and returned to the requester for additional identifying information, such as the subjects social security number, as authorized pursuant to the provisions of N.J.A.C. 13:59-1.4(d)2. The fee which accompanied the SBI 212 Form shall be retained by the SBI. Upon resubmission, the rejected SBI 212 Form shall be stapled to the newly executed SBI 212 Form and both forms shall be submitted with the original rejection form to the SBI. No additional charges shall be assessed for the resubmitted SBI 212 Form request.

NJAC 13:59-1.4 Prescribed Forms

NJAC 13:59-1.4 Prescribed Forms


NJAC13:59-1.4 Prescribed forms
(a) Requesters and national requesters shall submit requests for criminal history record information on forms as prescribed by this section and the directions contained in the manual entitled Guidelines for Preparation and Submission of Fingerprint Cards and Other Documents to the State Bureau of Identification (SBI), New Jersey State Police, August, 1997, as amended and supplemented from time to time. The manual and forms are issued to criminal justice agencies by the SBI. Attorneys-at-law may obtain criminal history record information pursuant to N.J.A.C. 13:59-1.2(a)3 upon the payment of the fees prescribed by N.J.A.C. 13:59-1.3 by the lawful issuance of subpoenas. Such subpoenas shall be issued in accordance with applicable rules of court and administrative procedure and shall be on notice to all parties required to receive same.

(b) For New Jersey fingerprint identification purposes, an Applicant fingerprint card SBI-19 shall be used. The SBI-19 form shall be signed by the individual whose fingerprints are on the card.

(c) A Federal fingerprint card FD-258 shall be submitted by national requesters for information contained in NCIC or other states computerized repositories of CHRI. The FD-258 shall be signed by the individual whose prints are on the card.

(d) For name search identification a requester, other than a New Jersey licensed private detective meeting the SBI requirements of 400 submissions per month for bulk, name search identification submissions via facsimile, shall submit a Request for Criminal History Record Information form SBI-212.

1. This form shall be completed in its entirety and shall contain all the information required to complete the check, including the name of the subject, the date of birth of the subject and, when authorized pursuant to (d)2 below, the social security number of the subject.

2. Pursuant to the Privacy Act of 1974, 5 U.S.C. 552a (note), requestors shall advise the subjects of name searches that the furnishing of social security numbers is voluntary and that if provided social security numbers will only be used for purposes of processing requests for criminal history record information.

3. Employers, potential employers, or employment agencies are also subject to the preemployment inquiry provisions of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12 et seq., and rules adopted by the New Jersey Division of Civil Rights pursuant thereto, including N.J.A.C. 13:7-1.1(g), and applicable Federal civil rights laws.

(e) The fees as prescribed in this chapter, if in the form of a check or money order, must be stapled to the front of the SBI-212 form or to the lower left corner of the Applicant fingerprint card SBI-19 and submitted to the State Bureau of Identification for processing.

NJAC 13:59-1.3 Fees CRIMINAL HISTORY RECORD

NJAC 13:59-1.3 Fees CRIMINAL HISTORY RECORD


NJAC13:59-1.3 Fees

(a) A fee of $ 30.00 shall be collected by the SBI for the purpose of processing New Jersey criminal history fingerprint record checks and checking them against the information in the central repository of the New Jersey State Police SBI. This fee shall be $ 18.00 for processing New Jersey criminal history fingerprint record checks on:

1. Any person who volunteers with a qualified entity, as that term is defined by the National Child Protection Act of 1993, 42 U.S.C. 5119, 5119c;

2. Any person who volunteers his or her services to an entity that has been qualified by the Internal Revenue System as exempt from Federal income tax pursuant to 26 U.S.C. 501(c)(3); or

3. Any volunteer of a nonprofit youth serving organization.

(b) A fee of $ 18.00 shall be collected by the SBI for the purpose of processing criminal history name search identification checks. This fee shall be $ 10.00 for processing a name search on:

1. Any person who volunteers with a qualified entity, as that term is defined by the National Child Protection Act of 1993, 42 U.S.C. 5119, 5119c;

2. Any person who volunteers his or her services to an entity that has been qualified by the Internal Revenue System as exempt from Federal income tax pursuant to 26 U.S.C. 501(c)(3); or

3. Any volunteer of a nonprofit youth serving organization.

(c) Notwithstanding (a) above, a state, county or municipal criminal justice agency, fire department or first aid squad may request a fingerprint based check of the New Jersey criminal history repository of the New Jersey State Police SBI on public safety volunteers under their authority. There will be no processing fee associated with this check.

(d) In addition to the processing fee established in (a) above, a non-refundable fee in an amount established by the FBI shall be collected from each national requester to pay for the cost of processing of national fingerprint checks of criminal history record information stored in the NCIC or other states repositories of computerized CHRI for noncriminal justice purposes.

(e) A $ 10.00 fee shall be collected for the service authorized by N.J.A.C. 13:59-1.8.

(f) Unless otherwise provided by law, all fees collected for accessing and disseminating criminal history record information shall be deposited in the Criminal History Record Information Fund.

(g) New Jersey State governmental entities may submit a Memo Processed Certificate of Debit and Credit for the applicable amount with each group of submissions to the State Bureau of Identification.

(h) Payment shall be made by cashiers check, certified check, money order or ordinary business check. Requesters and national requesters who conduct large volumes of transactions may maintain prepaid accounts with the approval of the Superintendent. Any form or method of payment other than that specified in this section shall be first approved by the Superintendent. A single check or money order shall be drafted to cover all applicable fees prescribed by this chapter and shall be made payable to Division of State Police--SBI.

(i) A fee may be collected by a law enforcement agency when it performs the procedure of securing applicant fingerprint images. The law enforcement agencys municipal governing body may assess and retain a fee to an applicant for the performance of this service pursuant to its authority under N.J.S.A. 40:48-1 et seq. to make, amend, repeal and enforce ordinances to fix the fees of any officer, or employee of the municipality for any service rendered in connection with his or her office or position for which no specific fee or compensation is provided.

(j) Upon authorization of the Superintendent, the procedure of securing applicant fingerprint images may be performed by a private entity under contract with the State and the applicant shall be assessed a fee which has been established under the contract between the private entity and the State.