SELECTED BY KENNETH VERCAMMEN
1. Can Police search car after drugs found on exited passenger? No- Possession of Drugs on Person Alone Does Not Permit Search of Car. State v. Wilson (App. Div.). This appeal addresses the question of whether drugs found on a person who was recently a passenger in a vehicle constitute probable cause to search that vehicle. On the facts presented we hold that probable cause was not established.
2. Can car stop be done on Anonymous Tip? No- DWI Stop Not Permitted On Anonymous Tip. State v. Golotta App. Div. Police did not have reasonable suspicion of criminal or quasi-criminal activity to stop motor vehicle based solely on a tip from an anonymous caller. Furthermore, due to the very narrow factual focus of the testimony at the suppression motion in the municipal court, the Law Division judge should have remanded the matter to the municipal court rather than enter a judgment of acquittal after it granted defendant's motion to suppress.
3 In drug cases, state sends notice it will rely on lab report in drug case, does lab cert go in if defense attorney files objection? No Lab Tech. Must Testify in Drug Case. State v. Simbara December 16, 2002 Justice Verniero for Unanimous court The state must produce for cross-examination the laboratory employee or analyst who prepared the certificate proffered by the state pursuant to N.J.S.A. 2C:35-19 to establish the nature and quantity of an alleged controlled dangerous substance whenever a defendant timely invokes the right to confront that witness in a challenge to the certificate.
4. If late objection to drug lab cert, does lab cert go into evidence? No Even If Late Objection to Lab Cert. Is Late, Judge Must Hold Evidence Hearing. State in the Interest of C.D. App. Div. Notice here was 2 days late In the case of two juveniles arrested and charged with drug offenses, where the state, pursuant to N.J.S.A. 2C:35-19(c), formally noticed defense counsel of its intent to proffer in evidence lab certificates attesting to the nature and quantity of drugs found, and counsel within ten days verbally noticed the state of its objection and then served a written notice thereof within twelve days; and, where, upon the hearing required by the statute, the judge denied admissibility of the certificates without the testimony of the lab technician who performed the tests, held that (1) the defense's late written notice did not prejudice the state and properly put the state on notice of its objection; (2) N.J.S.A. 2C:35-19 does not itself establish a standard of admissibility of lab certificates; (3) the judge's ruling based upon the fill-in-the-blank form of the certificates was in error; and, (4) the matter would be remanded for a new evidential hearing on the methods, practices and procedures of the lab sufficient under N.J.R.E. 803 (c) (6) or 803 (c) (8) to establish the general reliability and trustworthiness of the tests performed in that lab justifying the admissibility of the certificates.
5. Can police search fanny pack prior to arrest? No- cant Search of Fanny Pack If No Arrest yet. State v. Todd App. Div. We reverse the denial of defendant's motion to suppress the search of a fanny pack he was carrying, which was made after a valid Terry at 3:30 a.m., within minutes of and near the scene of a burglary, in order to enable the police officer to determine that it did not contain weapons prior to transporting defendant in the police car to the burglary scene for a show-up identification. The search was not constitutionally supportable on any basis, including (1) as a search incident to an arrest, because even though the officer had probable cause to arrest defendant, he had not then been arrested and actually was not arrested until considerably later; (2) as a search to prevent immediate harm, inasmuch as the officer did not believe that defendant was armed and dangerous; and (3) as a consent search, inasmuch as defendant was not informed of his right to consent.
6. DWI defendants must be told they can seek their own blood test. What if police don't have a procedure to permit defendant to seek test? Depends- If Police Thwart Independent Test, DWI Breath Test Inadmissible. State v. Greeley App. Div. Denial of motion to suppress results of breathalyzer and conviction for driving while intoxicated are reversed. Police department's refusal to release the defendant except into the custody of a relative or friend or upon demonstration of a return to sobriety effectively nullified the exercise of defendant's right to independent testing under N.J.S.A. 39:4-50.2. The lack of any formal policy regarding release, coupled with the imposition on this defendant of conditions of release the police knew he could not meet and which were not dictated by the objective indicia of insobriety impermissibly thwarted the defendant's ability to exercise the right to testing that he had requested. The right to have an independent blood test or other diagnostic procedure performed following submission to breathalyzer analysis is statutory; however, although N.J.S.A. 39:4-50.2 (c) mandates that the person charged with drunk driving be permitted to have the tests performed and be advised of that right, (d) provides no guidelines and establishes no uniform statewide regulations for the protection of that right; as a result, courts have addressed the issue of the right to independent testing and its protection on a case-by-case basis, focusing on whether an absence of procedures, or restrictive procedures, has thwarted the exercise of right.
7. Can a person drive drunk to escape from getting beaten? Sometimes- Defense of Necessity Permitted In DWI Case. State v. Romano App. Div. The common-law defense of necessity is available to a defendant charged with driving while intoxicated, where defendant was attacked and beaten by several men, sustained severe injuries, and where his car was shaken, kicked, and rocked, and his attackers threatened to kill him. Defendant had no realistic alternative but to violate the DWI statute to escape a brutal and potentially deadly attack. The trial judge erred in perceiving defendant's defense as duress rather than necessity and improperly shifted the burden of proof to defendant. Defendant must come forward with some evidence of the defense, but the state bears the ultimate responsibility to disprove the defense beyond a reasonable doubt. Defendant's DWI conviction is reversed. 8. Can police search a bulge in pants without search warrant or arrest? Yes- Police could search visible bulge. State v. Roach 172 NJ 19 (2002) The totality of the circumstances created an objectively reasonable concern for the officers' safety that justified their seizure of the contents of the bulge from Roach's person.
9. Can police lock up person on Petty disorderly? No- Petty disorderly offense usually does not permit arrest and lock up. State v. Dangerfield 171 NJ 446 (2002) The arrest of Dangerfield for trespassing was not supported by probable cause. The disposition of the Appellate Division is modified insofar as it holds that a petty disorderly persons offense should be treated differently than other offenses regarding the arrest power of police.
10. If no basis to believe defendant armed, can they stop and search? No suspicion that defendant was armed made investigatory stop illegal. State v. Richards 351 NJ Super. 289 (App. Div. 2002) Under the totality of the circumstances, the police officers did not have an articulable and reasonable basis to conclude that the defendant was armed and dangerous to justify the investigatory stop.
11. Is anonymous tip enough for Investigative detention? Probably not- Investigatory detention based on an anonymous tip not sufficient. State v. Rodriguez 172 NJ 117 (2002) Defendant was the subject of an investigative detention and the totality of the circumstances did not justify it.
12. Can police request a consent search on all motor vehicle stops? No- consent search unless suspicion. State v. Pegeese 351 NJ Super. 25 (App. Div. 2002) Where the state troopers requested a vehicle check prior to stopping the car (in which defendant was a passenger) for speeding and, while waiting for the results, it was discovered that neither defendant nor co-defendant had a valid driver's license or any identification, and the registration was in the name of another, the troopers were entitled to question them concerning their recent whereabouts while they waited for the results of the inquiry; however, the matter is remanded to determine whether the troopers had an articulable and reasonable suspicion that defendants were participating in criminal activity when the co-defendant consented to a search of the car, in which CDS were discovered.
13. If both criminal charges and DWI, and client gets into PTI, does the DWI case wait pending PTI conclusion? The County Prosecutor must decide whether to return the DWI to the municipal court, or retain DWI pending completion of the PTI State v. Fulford 349 NJ Super. 183 (App. Div. 2002) The state charged defendant Robert Fulford IV with speeding, drunk driving and an indictable weapons offense. Defendant argued that his constitutional right to a speedy trial was violated because the state did not try the driving charges until after the defendant completed pretrial intervention for the weapons offense. We distinguished State v. Farrell, 320 N.J. Super 425 (App. Div. 1999), and found that the 32-month delay did not violate the defendant's right to a speedy trial. We also pointed out that the prosecutor should have promptly determined whether to retain the drunk-driving charge for prosecution with the indictable offense, or return the charge for trial in municipal court. If the prosecutor elected not to return the charge to municipal court and defendant is about to enter PTI, the timing of the drunk-driving prosecution should be broached when the designated PTI judge is considering postponing proceedings against defendant under R. 3:28.
14. DWI- If less than 10 years between 2nd and 3rd offense, but more than 10 years between 1st and 3rd offense, what number offense? 1st, 2nd, 3rd? If less than 10 years between 2nd and 3rd offense, defendant is 3rd offender. State v. Burroughs 349 NJ Super. 225 (App. Div. 2002) The repeat-offender section of New Jersey's drunk-driving law imposes enhanced penalties with each succeeding conviction. However, if a second offense occurs more than 10 years after the defendant's first offense, he is to be treated as a first offender for sentencing purposes, and if a third offense occurs more than 10 years after the defendant's second offense, he is to be treated as a second offender for sentencing purposes. At issue here is whether the defendant is to be subject to second or third offender treatment where more than 10 years elapsed between his first and second drunk-driving offenses but less than 10 years between his second and third drunk-driving offenses. We hold that the Law Division was correct in requiring that defendant be sentenced as a third offender.
15 If defendant complains to cop that taking breathalyzer in under duress, and cop writes refusal and doesn't read the 2nd warnings on refusal, can a refusal charge stick? No- Refusal reversed where operator did not inform defendant of consequences for refusal. State v. Duffy (App. Div. 2002) Defendant was charged and convicted of refusing to take a breathalyzer test. Defendant replied that he would take the breathalyzer but it's under duress. We hold that the failure of the breathalyzer operator to inform the defendant that he interpreted defendant's response as a refusal, and that unless defendant replied "yes" to taking the test he would be cited for a refusal, to be a fatal defect in the state's case, requiring reversal.
16 The breathalyzer inspection protocol was revised in 1997 Does change in protocol and failure to provide in-house tests keep out breath test certs? No- Breath Test Certs admitted even where protocol revised. State v. Cleverley 348 NJ Super. 455 (App. Div. 2002) A 1997 revision in the state police protocols, providing for the use of an atomizer instead of human breath, in testing breathalyzers, does not affect the admissibility of the Breath Test Inspectors' Inspection Certification to establish the good working order of the breathalyzer. The purpose of the revision is to reduce simulator solution depletion and thus enhance the accuracy and reliability of the testing process. The revision was adopted by the state police in reliance on published studies by a recognized authority on the scientific reliability of the breathalyzer. The revision also accords with manufacturer recommendations and is generally consistent with a protocol adopted by the National Highway Traffic Safety Administration. Thousands of tests using the new procedure have yielded results consistent with the old procedure. The expert testimony produced by defendant was not more than speculation and did not undermine the reliability of the new procedure. The state was not required to produce evidence of in-house testing to verify the reliability of the new procedure for the BTIIC'S to be admissible.
17 If defendant objects to drug lab cert, is pre-trial hearing required for admissibility? Yes, Pre-trial Hearing on Lab Cert required. State v. Miller 170 NJ 417 (2002) Since a defendant cannot, as a matter of constitutional imperative, be assigned any burden of detailing objections to the admission of a lab certificate. N.J.S.A. 2C:35-19c is interpreted to require only that a defendant timely object to the lab certificate and assert that the composition, quality or quantity of the tested substance will be contested at trial, and defendant fully conformed with that notice requirement when he stated that he objected to the certificate's admissibility and that the "composition, quality and quantity of the substance submitted to the laboratory may be inaccurate and may be contested at trial," and suggested that he needed more information about the equipment used in the analysis; the matter is remanded to the trial court for a hearing on the reliability of the methodology underlying the certificate that the trial court admitted without a hearing or the production of the lab employee -- if the court determines that the employee should have been produced, the Appellate Division judgment affirmed defendant's conviction for possession of CDS will be reversed and a new trial ordered, but if the court rules that the report was properly admitted in lieu of testimony, the judgment will be affirmed.
18. After valid stop and request for written consent, is search valid? No-Consent search requires suspicion. State v. Carty 170 NJ 632 (2002) Consent searches during a lawful stop of a motor vehicle are not valid unless there is a reasonable and articulable suspicion to believe that the motorist or passenger has engaged in, or is about to engage in, criminal activity.
19 Are pretextual stops for tinted windows valid? Usually- Police could stop for tinted windows. State v. Cohen 347 NJ Super. 375 (App. Div. 2002) Defendant appealed the Law Division's affirmance of the municipal court's denial of a motion to suppress, which found that a stop of defendant's vehicle was justified based on the officer's reasonable belief that tinted windows constituted a violation of a motor vehicle statute. We affirmed, holding that N.J.S.A. 39:3-74 prohibits the use of tinted windows that fail to meet the applicable standard set forth in N.J.A.C. 13:20-33.7, Thereby overruling State v. Harrison, 236 N.J. Super. 69 (Law Div. 1989), and In re R.M. and J.M., 343 N.J. Super. 153 (Ch. Div. 2001). Further, an automobile stop is proper so long as it is based on a reasonable, articulable suspicion that a violation has occurred, and the officer's belief that the tinted windows represented a significant obstruction was sufficient to implicate the "community caretaking" function. Lastly, N.J.S.A. 39:3-15, which exempts non-resident owners of vehicles registered in other states from complying with New Jersey equipment requirements, does not preclude an officer from conducting an identification check of a noncompliance vehicle.
20 Can police seize drugs seen through a hole in house porch? Police can seize CDS seen through hole. State v. Johnson 170 NJ 385 (2002) The 4-3 decision in State v. Johnson allows the use at trial of crack cocaine seized by police at night from a hole at the base of a support post on a front porch. Writing for the majority, Justice James H. Coleman Jr. said an officer's conduct in seizing a clear plastic bag from the hole was reasonable under the plain-view doctrine.
21 When can search be done on home without warrant? Usually never- Exigent circumstances required prior to warrantless search of home. Kirk v. Louisiana ___ US __ Decided June 24, 2002). Court of Appeals conclusion that warrantless search of a home was constitutional, without deciding whether exigent circumstances were present, violates Us v. Payton doctrine that the firm line at the entrance to the house...may not reasonably be searched without a warrant. ------------------------------------------ New laws- DWI S of L moved to 90 days. P.L. 2002, c.57 Extends time to file complaint for drunk driving from 30 to 90 days.
Increased jail time for repeat offenders who drive while their licenses are revoked On June 24, 2002, Governor McGreevey signed A-1727 into law as P.L. 2002, c.28. The new law provides for progressive jail sentences for persons who continue to drive on the streets and highways of this State after their licenses have been suspended or revoked under certain circumstances. The law specifically provides that persons convicted for a second or subsequent offense of driving while their license is suspended or revoked, and that second or subsequent offense involves a motor vehicle moving violation, shall be imprisoned for ten days longer than the term of imprisonment imposed for the previous offense. The law defines a "motor vehicle moving violation" as any violation of the motor vehicle laws of this State for which motor vehicle points are assessed by the Director of Motor Vehicles. Under the new law, repeat offenders are not be subject to the increased term of imprisonment if the repeat offense involves a non-moving violation, such as a parking offense. P.L. 2002, c.28 (A-1727) ------------------------- 22 If uninsured and injured but not negligent, car insurance law bars driver from bringing PI suit. Can you help them get money? Unconstitutional is Barring Underinsured Person From Bringing Suit For Injuries. Caviglia and Caviglia v. Royal Tours of America et al. (App. Div.). Therefore, you may not need to contest the no insurance ticket N.J.S.A. 39:6A-4.5 bars a cause of action for both economic and non-economic damages by an uninsured injured driver against the tortfeasor. The total preclusion of all opportunity for any recovery was held unconstitutional on both equal protection and due process grounds.
23 Out of state suspension- If NJ driver gets DWI and is suspended in West Virginia, but NJ does not go to suspend for 3 years, has due process been violated? Delay by Another State in Notifying NJ DMV of DWI is Not Grounds to Stop NJ Suspension. [UNREPORTED] Roderick v. N.J. Div. of Motor Vehicles. ___ NJ Super. ___ 05-2-2197 (App. Div. December 3, 2002). The drivers may want to contact their home state to start suspension there. Computers eventually catch up. Although there was a three-year delay in West Virginia's reporting plaintiff's driving-while-intoxicated conviction to New Jersey, defendant Division of Motor Vehicles did not act improperly in immediately suspending plaintiff's driving privileges in New Jersey for 180 days based on his conviction for DWI in West Virginia; inter alia, New Jersey did not cause the delay and acted promptly on being notified of the conviction; and plaintiff himself caused some of the problem by not surrendering his New Jersey license and obtaining a West Virginia license, even though he had relocated to that state. Source: 170 N.J.L.J. 899
24. School Zone Speeding Not Guilty Where No Testimony Children In Area. [UNREPORTED] State v. Bandler. App. Div. The defendant's conviction for speeding in a school zone must be reversed, since the record is wholly lacking of the evidence necessary for finding that defendant violated the statute, to wit, not only that he was speeding in the zone, but that, at the time the defendant did so, it was either during recess, when children were clearly visible from the roadway, or that the violation occurred during the opening or closing hours of school, while children were going to or leaving the area. Source: 170 N.J.L.J. 899
1. Can Police search car after drugs found on exited passenger? No- Possession of Drugs on Person Alone Does Not Permit Search of Car. State v. Wilson (App. Div.). This appeal addresses the question of whether drugs found on a person who was recently a passenger in a vehicle constitute probable cause to search that vehicle. On the facts presented we hold that probable cause was not established.
2. Can car stop be done on Anonymous Tip? No- DWI Stop Not Permitted On Anonymous Tip. State v. Golotta App. Div. Police did not have reasonable suspicion of criminal or quasi-criminal activity to stop motor vehicle based solely on a tip from an anonymous caller. Furthermore, due to the very narrow factual focus of the testimony at the suppression motion in the municipal court, the Law Division judge should have remanded the matter to the municipal court rather than enter a judgment of acquittal after it granted defendant's motion to suppress.
3 In drug cases, state sends notice it will rely on lab report in drug case, does lab cert go in if defense attorney files objection? No Lab Tech. Must Testify in Drug Case. State v. Simbara December 16, 2002 Justice Verniero for Unanimous court The state must produce for cross-examination the laboratory employee or analyst who prepared the certificate proffered by the state pursuant to N.J.S.A. 2C:35-19 to establish the nature and quantity of an alleged controlled dangerous substance whenever a defendant timely invokes the right to confront that witness in a challenge to the certificate.
4. If late objection to drug lab cert, does lab cert go into evidence? No Even If Late Objection to Lab Cert. Is Late, Judge Must Hold Evidence Hearing. State in the Interest of C.D. App. Div. Notice here was 2 days late In the case of two juveniles arrested and charged with drug offenses, where the state, pursuant to N.J.S.A. 2C:35-19(c), formally noticed defense counsel of its intent to proffer in evidence lab certificates attesting to the nature and quantity of drugs found, and counsel within ten days verbally noticed the state of its objection and then served a written notice thereof within twelve days; and, where, upon the hearing required by the statute, the judge denied admissibility of the certificates without the testimony of the lab technician who performed the tests, held that (1) the defense's late written notice did not prejudice the state and properly put the state on notice of its objection; (2) N.J.S.A. 2C:35-19 does not itself establish a standard of admissibility of lab certificates; (3) the judge's ruling based upon the fill-in-the-blank form of the certificates was in error; and, (4) the matter would be remanded for a new evidential hearing on the methods, practices and procedures of the lab sufficient under N.J.R.E. 803 (c) (6) or 803 (c) (8) to establish the general reliability and trustworthiness of the tests performed in that lab justifying the admissibility of the certificates.
5. Can police search fanny pack prior to arrest? No- cant Search of Fanny Pack If No Arrest yet. State v. Todd App. Div. We reverse the denial of defendant's motion to suppress the search of a fanny pack he was carrying, which was made after a valid Terry at 3:30 a.m., within minutes of and near the scene of a burglary, in order to enable the police officer to determine that it did not contain weapons prior to transporting defendant in the police car to the burglary scene for a show-up identification. The search was not constitutionally supportable on any basis, including (1) as a search incident to an arrest, because even though the officer had probable cause to arrest defendant, he had not then been arrested and actually was not arrested until considerably later; (2) as a search to prevent immediate harm, inasmuch as the officer did not believe that defendant was armed and dangerous; and (3) as a consent search, inasmuch as defendant was not informed of his right to consent.
6. DWI defendants must be told they can seek their own blood test. What if police don't have a procedure to permit defendant to seek test? Depends- If Police Thwart Independent Test, DWI Breath Test Inadmissible. State v. Greeley App. Div. Denial of motion to suppress results of breathalyzer and conviction for driving while intoxicated are reversed. Police department's refusal to release the defendant except into the custody of a relative or friend or upon demonstration of a return to sobriety effectively nullified the exercise of defendant's right to independent testing under N.J.S.A. 39:4-50.2. The lack of any formal policy regarding release, coupled with the imposition on this defendant of conditions of release the police knew he could not meet and which were not dictated by the objective indicia of insobriety impermissibly thwarted the defendant's ability to exercise the right to testing that he had requested. The right to have an independent blood test or other diagnostic procedure performed following submission to breathalyzer analysis is statutory; however, although N.J.S.A. 39:4-50.2 (c) mandates that the person charged with drunk driving be permitted to have the tests performed and be advised of that right, (d) provides no guidelines and establishes no uniform statewide regulations for the protection of that right; as a result, courts have addressed the issue of the right to independent testing and its protection on a case-by-case basis, focusing on whether an absence of procedures, or restrictive procedures, has thwarted the exercise of right.
7. Can a person drive drunk to escape from getting beaten? Sometimes- Defense of Necessity Permitted In DWI Case. State v. Romano App. Div. The common-law defense of necessity is available to a defendant charged with driving while intoxicated, where defendant was attacked and beaten by several men, sustained severe injuries, and where his car was shaken, kicked, and rocked, and his attackers threatened to kill him. Defendant had no realistic alternative but to violate the DWI statute to escape a brutal and potentially deadly attack. The trial judge erred in perceiving defendant's defense as duress rather than necessity and improperly shifted the burden of proof to defendant. Defendant must come forward with some evidence of the defense, but the state bears the ultimate responsibility to disprove the defense beyond a reasonable doubt. Defendant's DWI conviction is reversed. 8. Can police search a bulge in pants without search warrant or arrest? Yes- Police could search visible bulge. State v. Roach 172 NJ 19 (2002) The totality of the circumstances created an objectively reasonable concern for the officers' safety that justified their seizure of the contents of the bulge from Roach's person.
9. Can police lock up person on Petty disorderly? No- Petty disorderly offense usually does not permit arrest and lock up. State v. Dangerfield 171 NJ 446 (2002) The arrest of Dangerfield for trespassing was not supported by probable cause. The disposition of the Appellate Division is modified insofar as it holds that a petty disorderly persons offense should be treated differently than other offenses regarding the arrest power of police.
10. If no basis to believe defendant armed, can they stop and search? No suspicion that defendant was armed made investigatory stop illegal. State v. Richards 351 NJ Super. 289 (App. Div. 2002) Under the totality of the circumstances, the police officers did not have an articulable and reasonable basis to conclude that the defendant was armed and dangerous to justify the investigatory stop.
11. Is anonymous tip enough for Investigative detention? Probably not- Investigatory detention based on an anonymous tip not sufficient. State v. Rodriguez 172 NJ 117 (2002) Defendant was the subject of an investigative detention and the totality of the circumstances did not justify it.
12. Can police request a consent search on all motor vehicle stops? No- consent search unless suspicion. State v. Pegeese 351 NJ Super. 25 (App. Div. 2002) Where the state troopers requested a vehicle check prior to stopping the car (in which defendant was a passenger) for speeding and, while waiting for the results, it was discovered that neither defendant nor co-defendant had a valid driver's license or any identification, and the registration was in the name of another, the troopers were entitled to question them concerning their recent whereabouts while they waited for the results of the inquiry; however, the matter is remanded to determine whether the troopers had an articulable and reasonable suspicion that defendants were participating in criminal activity when the co-defendant consented to a search of the car, in which CDS were discovered.
13. If both criminal charges and DWI, and client gets into PTI, does the DWI case wait pending PTI conclusion? The County Prosecutor must decide whether to return the DWI to the municipal court, or retain DWI pending completion of the PTI State v. Fulford 349 NJ Super. 183 (App. Div. 2002) The state charged defendant Robert Fulford IV with speeding, drunk driving and an indictable weapons offense. Defendant argued that his constitutional right to a speedy trial was violated because the state did not try the driving charges until after the defendant completed pretrial intervention for the weapons offense. We distinguished State v. Farrell, 320 N.J. Super 425 (App. Div. 1999), and found that the 32-month delay did not violate the defendant's right to a speedy trial. We also pointed out that the prosecutor should have promptly determined whether to retain the drunk-driving charge for prosecution with the indictable offense, or return the charge for trial in municipal court. If the prosecutor elected not to return the charge to municipal court and defendant is about to enter PTI, the timing of the drunk-driving prosecution should be broached when the designated PTI judge is considering postponing proceedings against defendant under R. 3:28.
14. DWI- If less than 10 years between 2nd and 3rd offense, but more than 10 years between 1st and 3rd offense, what number offense? 1st, 2nd, 3rd? If less than 10 years between 2nd and 3rd offense, defendant is 3rd offender. State v. Burroughs 349 NJ Super. 225 (App. Div. 2002) The repeat-offender section of New Jersey's drunk-driving law imposes enhanced penalties with each succeeding conviction. However, if a second offense occurs more than 10 years after the defendant's first offense, he is to be treated as a first offender for sentencing purposes, and if a third offense occurs more than 10 years after the defendant's second offense, he is to be treated as a second offender for sentencing purposes. At issue here is whether the defendant is to be subject to second or third offender treatment where more than 10 years elapsed between his first and second drunk-driving offenses but less than 10 years between his second and third drunk-driving offenses. We hold that the Law Division was correct in requiring that defendant be sentenced as a third offender.
15 If defendant complains to cop that taking breathalyzer in under duress, and cop writes refusal and doesn't read the 2nd warnings on refusal, can a refusal charge stick? No- Refusal reversed where operator did not inform defendant of consequences for refusal. State v. Duffy (App. Div. 2002) Defendant was charged and convicted of refusing to take a breathalyzer test. Defendant replied that he would take the breathalyzer but it's under duress. We hold that the failure of the breathalyzer operator to inform the defendant that he interpreted defendant's response as a refusal, and that unless defendant replied "yes" to taking the test he would be cited for a refusal, to be a fatal defect in the state's case, requiring reversal.
16 The breathalyzer inspection protocol was revised in 1997 Does change in protocol and failure to provide in-house tests keep out breath test certs? No- Breath Test Certs admitted even where protocol revised. State v. Cleverley 348 NJ Super. 455 (App. Div. 2002) A 1997 revision in the state police protocols, providing for the use of an atomizer instead of human breath, in testing breathalyzers, does not affect the admissibility of the Breath Test Inspectors' Inspection Certification to establish the good working order of the breathalyzer. The purpose of the revision is to reduce simulator solution depletion and thus enhance the accuracy and reliability of the testing process. The revision was adopted by the state police in reliance on published studies by a recognized authority on the scientific reliability of the breathalyzer. The revision also accords with manufacturer recommendations and is generally consistent with a protocol adopted by the National Highway Traffic Safety Administration. Thousands of tests using the new procedure have yielded results consistent with the old procedure. The expert testimony produced by defendant was not more than speculation and did not undermine the reliability of the new procedure. The state was not required to produce evidence of in-house testing to verify the reliability of the new procedure for the BTIIC'S to be admissible.
17 If defendant objects to drug lab cert, is pre-trial hearing required for admissibility? Yes, Pre-trial Hearing on Lab Cert required. State v. Miller 170 NJ 417 (2002) Since a defendant cannot, as a matter of constitutional imperative, be assigned any burden of detailing objections to the admission of a lab certificate. N.J.S.A. 2C:35-19c is interpreted to require only that a defendant timely object to the lab certificate and assert that the composition, quality or quantity of the tested substance will be contested at trial, and defendant fully conformed with that notice requirement when he stated that he objected to the certificate's admissibility and that the "composition, quality and quantity of the substance submitted to the laboratory may be inaccurate and may be contested at trial," and suggested that he needed more information about the equipment used in the analysis; the matter is remanded to the trial court for a hearing on the reliability of the methodology underlying the certificate that the trial court admitted without a hearing or the production of the lab employee -- if the court determines that the employee should have been produced, the Appellate Division judgment affirmed defendant's conviction for possession of CDS will be reversed and a new trial ordered, but if the court rules that the report was properly admitted in lieu of testimony, the judgment will be affirmed.
18. After valid stop and request for written consent, is search valid? No-Consent search requires suspicion. State v. Carty 170 NJ 632 (2002) Consent searches during a lawful stop of a motor vehicle are not valid unless there is a reasonable and articulable suspicion to believe that the motorist or passenger has engaged in, or is about to engage in, criminal activity.
19 Are pretextual stops for tinted windows valid? Usually- Police could stop for tinted windows. State v. Cohen 347 NJ Super. 375 (App. Div. 2002) Defendant appealed the Law Division's affirmance of the municipal court's denial of a motion to suppress, which found that a stop of defendant's vehicle was justified based on the officer's reasonable belief that tinted windows constituted a violation of a motor vehicle statute. We affirmed, holding that N.J.S.A. 39:3-74 prohibits the use of tinted windows that fail to meet the applicable standard set forth in N.J.A.C. 13:20-33.7, Thereby overruling State v. Harrison, 236 N.J. Super. 69 (Law Div. 1989), and In re R.M. and J.M., 343 N.J. Super. 153 (Ch. Div. 2001). Further, an automobile stop is proper so long as it is based on a reasonable, articulable suspicion that a violation has occurred, and the officer's belief that the tinted windows represented a significant obstruction was sufficient to implicate the "community caretaking" function. Lastly, N.J.S.A. 39:3-15, which exempts non-resident owners of vehicles registered in other states from complying with New Jersey equipment requirements, does not preclude an officer from conducting an identification check of a noncompliance vehicle.
20 Can police seize drugs seen through a hole in house porch? Police can seize CDS seen through hole. State v. Johnson 170 NJ 385 (2002) The 4-3 decision in State v. Johnson allows the use at trial of crack cocaine seized by police at night from a hole at the base of a support post on a front porch. Writing for the majority, Justice James H. Coleman Jr. said an officer's conduct in seizing a clear plastic bag from the hole was reasonable under the plain-view doctrine.
21 When can search be done on home without warrant? Usually never- Exigent circumstances required prior to warrantless search of home. Kirk v. Louisiana ___ US __ Decided June 24, 2002). Court of Appeals conclusion that warrantless search of a home was constitutional, without deciding whether exigent circumstances were present, violates Us v. Payton doctrine that the firm line at the entrance to the house...may not reasonably be searched without a warrant. ------------------------------------------ New laws- DWI S of L moved to 90 days. P.L. 2002, c.57 Extends time to file complaint for drunk driving from 30 to 90 days.
Increased jail time for repeat offenders who drive while their licenses are revoked On June 24, 2002, Governor McGreevey signed A-1727 into law as P.L. 2002, c.28. The new law provides for progressive jail sentences for persons who continue to drive on the streets and highways of this State after their licenses have been suspended or revoked under certain circumstances. The law specifically provides that persons convicted for a second or subsequent offense of driving while their license is suspended or revoked, and that second or subsequent offense involves a motor vehicle moving violation, shall be imprisoned for ten days longer than the term of imprisonment imposed for the previous offense. The law defines a "motor vehicle moving violation" as any violation of the motor vehicle laws of this State for which motor vehicle points are assessed by the Director of Motor Vehicles. Under the new law, repeat offenders are not be subject to the increased term of imprisonment if the repeat offense involves a non-moving violation, such as a parking offense. P.L. 2002, c.28 (A-1727) ------------------------- 22 If uninsured and injured but not negligent, car insurance law bars driver from bringing PI suit. Can you help them get money? Unconstitutional is Barring Underinsured Person From Bringing Suit For Injuries. Caviglia and Caviglia v. Royal Tours of America et al. (App. Div.). Therefore, you may not need to contest the no insurance ticket N.J.S.A. 39:6A-4.5 bars a cause of action for both economic and non-economic damages by an uninsured injured driver against the tortfeasor. The total preclusion of all opportunity for any recovery was held unconstitutional on both equal protection and due process grounds.
23 Out of state suspension- If NJ driver gets DWI and is suspended in West Virginia, but NJ does not go to suspend for 3 years, has due process been violated? Delay by Another State in Notifying NJ DMV of DWI is Not Grounds to Stop NJ Suspension. [UNREPORTED] Roderick v. N.J. Div. of Motor Vehicles. ___ NJ Super. ___ 05-2-2197 (App. Div. December 3, 2002). The drivers may want to contact their home state to start suspension there. Computers eventually catch up. Although there was a three-year delay in West Virginia's reporting plaintiff's driving-while-intoxicated conviction to New Jersey, defendant Division of Motor Vehicles did not act improperly in immediately suspending plaintiff's driving privileges in New Jersey for 180 days based on his conviction for DWI in West Virginia; inter alia, New Jersey did not cause the delay and acted promptly on being notified of the conviction; and plaintiff himself caused some of the problem by not surrendering his New Jersey license and obtaining a West Virginia license, even though he had relocated to that state. Source: 170 N.J.L.J. 899
24. School Zone Speeding Not Guilty Where No Testimony Children In Area. [UNREPORTED] State v. Bandler. App. Div. The defendant's conviction for speeding in a school zone must be reversed, since the record is wholly lacking of the evidence necessary for finding that defendant violated the statute, to wit, not only that he was speeding in the zone, but that, at the time the defendant did so, it was either during recess, when children were clearly visible from the roadway, or that the violation occurred during the opening or closing hours of school, while children were going to or leaving the area. Source: 170 N.J.L.J. 899
