Friday, December 11, 2009
AN ENCOUNTER WITH A HOOKER CREATES A DATING RELATIONSHIP TRIGGERING THE NJ DOMESTIVE VIOLENCE ACT
The New Jersey Appellate Division rendered a decision earlier today that an encounter (saying that loosely) with a call girl affords that call girl protection under the New Jersey Domestic Violence Act. The caption of the case was J.S. v. J.F. In essence, the Appellate Division in J.S. v. J.F. gave broad interpretation to the term, "dating relationship' thus providing a call girl the same types of legal protections as persons involved in an actual dating relationship, marital relationships, etc.
Tuesday, December 8, 2009
NEW JERSEY MUNICIPAL COURTS RESOLVE DWI CASES IN 60 DAYS!
Many of my clients facing a DWI charge in the State of New Jersey have repeatedly asked, "why are they required to appear before a Municipal Court Judge within 2-4 days of being issued a summons for driving under the influence in violation of N.J.S.A 39:4-50. In some cases, the DWI defendant is required to appear before a Municipal Court Judge within hours of being released from police detention on a NJ DWI summons. My answer is always the same-the New Jersey Supreme Court issued a directive advising all New Jersey Municipal Court Judges to resolve or dispose of DWI cases within 60 days of the alleged violation date. If your interested, the comprehensive directive reads as follows:
Directive on Statewide DWI Backlog Reduction
Directive #1-84 July 26, 1984
Issued by: Chief Justice Robert N. Wilentz
For the last several years, issues relating to driving while intoxicated have been
in the forefront of public attention in New Jersey and nationwide. The New Jersey
Legislature has enacted a number of bills to increase statutory minimum penalties, and
to provide financial support for increased enforcement and sanctions. The Executive
Branch has pursued programs of increased enforcement of these laws with vigor.
I recognize that a number of conditions, in addition to increased filings, have
combined to cause a backlog, including challenges to the reliability of breathalyzers.
However, our duty is to dispose of cases swiftly and fairly, within reasonable time
standards. We must and will meet that challenge.
The Supreme Court has, therefore, decided as a matter of policy that complaints
charging offenses under N.J.S.A. 39-4:50, Operation or Allowing Operation by Persons
Under the Influence of Liquor or Drugs and N.J.S.A. 39:4-50a. or [sic], Refusal to
Submit to Chemical Test, must be disposed of within 60 days of filing. This is consistent
with the standard suggested by all judges who attended the Annual Conference of
Municipal Court Judges in October 1983. It shall apply to all but exceptional cases.
However, I want to emphasize that DWI backlog reduction must not be pursued
at the expense of other court efforts especially the resolution of more serious disorderly
persons complaints. Therefore, special sessions may be needed in many courts.
I want to note that the 60 day standard for DWI cases, established in this
Directive, is a goal. Therefore, it does not replace the traditional guidelines established
through case law for dismissals based on lack of a speedy trial. You should now
consider and begin to implement management strategies designed to meet the 60 day
standard for new DWI cases. Techniques such as arraignment and scheduling soon
after complaint filing, expedited identification of defense counsel, pre-trial conferences
and scheduled trial dates within 45 days should be considered in this context.
I cannot overemphasize the importance of this effort. Elected officials of both the
legislative and executive branches of government have taken major steps to address
the DWI problem. It is incumbent on all segments of the judiciary to address this issue
with equal vigor. I would like to congratulate those courts that have succeeded in
keeping their DWI caseloads current. For those courts that have DWI backlogs,
immediate attention to this problem is crucial to New Jersey's statewide efforts to
effectively adjudicate DWI cases.
Memorandum
Issued by: Robert D. Lipscher
Administrative Director
We will initiate a longer-term planning activity to reduce on-going delays in DWI
cases, maintaining the standard of 60 days from complaint to disposition in all but
exceptional cases. Your involvement as judge, or where applicable, presiding judge of
your municipal court will be of paramount importance.
1. DWI Backlog Reduction Goal
The goal of the DWI Backlog Reduction program is to reduce the number
of backlogged cases to tolerable levels. Backlog is defined as the number
of DWI cases which are already older than the goal, here 60 days. The 60
day goal set by the Supreme Court is expected to be met in all but
"exceptional" cases. It is estimated that approximately 10% of all cases
are exceptional, having problems which will require more than 60 days for
disposition. Therefore, a portion of your inventory of DWI cases may
properly be over 60 days old. However, this should not represent more
than 10% of the cases under 60 days old. Accordingly, your backlog
reduction goal is to eliminate all DWI cases over 60 days old, with the
exception of the number of cases representing 10% of your DWI inventory
under 60 days old. Courts with less than 10 DWI cases total should not
have more than one DWI case in backlog. If you are not currently clearing
your calendar on DWI (that is, your monthly filings are exceeding
dispositions), then your backlog will be increasing during the course of the
year to the extent of the difference.
2. Backlog Reduction Strategies
As the Chief Justice EDITOR=S NOTEd in the Directive, DWI backlogs are
not to be reduced at the expense of other caseloads. While his desire is
to maximize local initiative in developing methods for backlog reduction
plans, it is strongly urged that the following alternatives be seriously
considered.
a. Case Conferences
Many municipalities have already successfully used calendar calls
as a management tool to identify the nature of their DWI backlog.
This allows for a discussion with each defendant and his or her
attorney as to the needs of each case. If appointed counsel is
required, then that process can be commenced. A municipal court
prosecutor should be in attendance at all case conference
sessions. Discovery needs can also be identified, and the judge
should prepare an order scheduling future events in the case. This
procedure can also identify those cases where the defendant does
not intend to request a trial, allowing guilty pleas to be entered at an
early stage in the proceedings.
b. Special Sessions
Consistent with the requirement not to delay other non-DWI
calendars, it is very likely that, even after case conferences have
been held, special sessions will need to be scheduled to dispose of
your DWI backlog. Again, this alternative has been
successfully utilized in a growing number of municipalities.
Reported experience is that between five and ten cases can be
disposed of at such sessions, averaging seven
cases (although some reports have been as high as 20 cases).
Therefore, if you divide the total excessive backlog estimated at the
bottom of the accompanying memorandum by seven, you will have
a reasonable estimate of the number of special sessions that will be
needed during the eight month period allotted for backlog reduction.
Of course, you should closely monitor DWI filings and dispositions
during the next eight months and adjust the number of special
sessions accordingly.
c. Adjournments
Courts should develop a written and firm policy disfavoring the
adjournment of DWI cases. This policy should be communicated to
attorneys when cases are scheduled.
3. Funding of Special Sessions
In order to conduct special sessions for clearing the DWI backlog, it may
be necessary to identify additional funds. Two major sources of funding
are available for this purpose.
a. State Assistance for Special Sessions Funding. N.J.S.A. 26:2B-35
establishes a Municipal Court Administration Reimbursement Fund
which provides moneys pursuant to the statutory formula for use by
municipal courts in disposing of DWI inventories. The procedure
for applying for these funds is to be found in subsection b(1) of
N.J.S.A. 26:2B-35.
b. Emergency Municipal Appropriations. Such funds will be approved
under an emergency resolution. Enclosed is a letter from the
Director of Local Government Services, as well as an application
form for approval of such appropriations.
4. Calendar Conflict Avoidance
In order to minimize conflict with Superior Court schedules, special
sessions should be scheduled for evenings or Saturdays during the time
of the project. If such sessions must be scheduled during weekdays,
approval must be obtained from the Assignment Judge. A list of all
attorneys involved in these matters should be submitted to the Assignment
Judge so that conflicts with Superior Court cases can be considered.
5. Municipal Public Defenders and Prosecutors
If possible, a municipal public defender should be appointed for indigents
for the purpose of the special sessions, and reimbursement will be allowed
under the grant funds. The municipal prosecutor should examine his or
her needs and the contract under which he or she is employed to
determine whether additional resources are needed for such sessions.
Some courts have reported that special sessions run most smoothly when
a second prosecutor is available to prepare the next case. This should be
considered.
6. Municipal Court Administrators
If the number of special sessions required is large, then you may have to
seek additional resources for your administrator. Perhaps an
administrator from a non-backlogged neighboring municipality can assist
on an overtime basis in preparing for or handling such special sessions.
Your vicinage Trial Court Administrator's office will be familiar with the
experience of special sessions in other municipal courts and will be
available to assist in your planning.
7. Acting Judges
If an acting judge is needed to preside over special sessions, you should
consult with your Trial Court Administrator's office regarding procedures to
obtain an acting judge. Municipal governing bodies may appoint acting
judges under N.J.S.A. 2A:8-5.2 for a term of up to one year. It would be
most practical to use an experienced sitting municipal court judge for such
special sessions, although it is obviously within the discretion of the
governing body to make the appointment. Forms for approval of acting
judge requests can be obtained from your Assignment Judge.
8. Expert and Other Witnesses
I am informed that cases with relatively lower blood-alcohol content
readings sometimes utilize expert witnesses to ascertain alcohol burn-off
and absorption rates, especially when such computations can be used to
question whether the defendant was at or above .10 BAC at the time of
operation. Your plan may provide for the scheduling of such cases
specially to accommodate the needs of such expert witnesses. It may be
further coordinated on a broader basis. This should be discussed when
you meet with the Assignment Judge. As well, in planning special
sessions, it will be obviously useful to coordinate them in a manner
consistent with the needs and availability of local or state police witnesses,
and these needs should be examined and discussed in your local
meetings. These techniques should be employed at this time in order to
meet the standard of 60 days from arrest to disposition for DWI cases so
that we can examine their effectiveness. Your immediate attention to the
DWI backlog in your court is crucial to our statewide efforts to address this
very important problem.
EDITOR=S NOTE
This directive is in two parts consisting of a policy statement by the Chief Justice, followed by a
memorandum implementing the plan by the Administrative Director.
The original directive had contemplated the development of a plan by each municipal court judge
for the disposal of existing driving while intoxicated ("DWI") backlog by May 1, 1985. All references in the
directive and its enclosures to the development of a plan or program have been deleted. Two of the
enclosures, a form for transmitting backlog status as of June 1, 1984 and a reduction plan format, have
also been removed.
The directive has been edited to delete the 1983 statistics in the first paragraph and all references
to the plans in the remaining seven paragraphs. Only the second, third, and eighth paragraphs and
portions of the first and seventh paragraphs have been retained, setting forth the 60 day standard for
disposing of DWI cases.
The supplement to the directive, originally intended to provide material for the development of the
plans, has been edited to delete all reference to those plans, but to retain the proposals for backlog
strategies and for funding which are still valid. The original paragraph 1 suggesting the formation of local
planning committees has been deleted and the remaining numbered paragraphs have been redesignated.
Paragraph 3 on funding has been changed. The Federal Highway Safety grant is no longer in
operation and all reference to it has been deleted. The costs for special sessions based on 1984
computations have also been deleted from that section. In its place two new sources of funding have
been added. N.J.S.A. 26:2B-35 enacted in 1983 and operative February 9, 1984 establishes the
"Municipal Court Administration Reimbursement Fund" and allocates one third of the moneys dedicated
for enforcement in the Alcohol Education, Rehabilitation and Enforcement Fund of the State Department
of Health for use in reducing DWI inventories. In addition, legislation signed on December 23, 1990, (P.L.
1990, c.95 and 96) removes the municipal court budget from the municipal CAP law. These two new
sources of funding have been added.
The third source, emergency appropriations, is still available, and the application form, list of
documents required with the emergency resolution and letter, dated October 7, 1983 from the Director,
Division of Local Government Services are still valid.
In paragraph 6, references to the "municipal court clerk" have been changed to "municipal court
administrator" in accordance with the statutory change in title. (P.L. 1991, c.98, which amends N.J.S.A.
2A:8-13, et. seq.)
In paragraph 7 N.J.S.A. 2A:8-5.2 has been substituted for P.L. 1983, c.430 and the description of
this legislation as "recent legislation" has been deleted. The language has been amended to render it
gender neutral.
Chapter 7 of the Rules Governing the Courts of the State of New Jersey governs practice in
municipal courts. This chapter was substantially revised in 1997 and users of this compilation should
consult the revised chapter for any changes that may affect these directives
Directive on Statewide DWI Backlog Reduction
Directive #1-84 July 26, 1984
Issued by: Chief Justice Robert N. Wilentz
For the last several years, issues relating to driving while intoxicated have been
in the forefront of public attention in New Jersey and nationwide. The New Jersey
Legislature has enacted a number of bills to increase statutory minimum penalties, and
to provide financial support for increased enforcement and sanctions. The Executive
Branch has pursued programs of increased enforcement of these laws with vigor.
I recognize that a number of conditions, in addition to increased filings, have
combined to cause a backlog, including challenges to the reliability of breathalyzers.
However, our duty is to dispose of cases swiftly and fairly, within reasonable time
standards. We must and will meet that challenge.
The Supreme Court has, therefore, decided as a matter of policy that complaints
charging offenses under N.J.S.A. 39-4:50, Operation or Allowing Operation by Persons
Under the Influence of Liquor or Drugs and N.J.S.A. 39:4-50a. or [sic], Refusal to
Submit to Chemical Test, must be disposed of within 60 days of filing. This is consistent
with the standard suggested by all judges who attended the Annual Conference of
Municipal Court Judges in October 1983. It shall apply to all but exceptional cases.
However, I want to emphasize that DWI backlog reduction must not be pursued
at the expense of other court efforts especially the resolution of more serious disorderly
persons complaints. Therefore, special sessions may be needed in many courts.
I want to note that the 60 day standard for DWI cases, established in this
Directive, is a goal. Therefore, it does not replace the traditional guidelines established
through case law for dismissals based on lack of a speedy trial. You should now
consider and begin to implement management strategies designed to meet the 60 day
standard for new DWI cases. Techniques such as arraignment and scheduling soon
after complaint filing, expedited identification of defense counsel, pre-trial conferences
and scheduled trial dates within 45 days should be considered in this context.
I cannot overemphasize the importance of this effort. Elected officials of both the
legislative and executive branches of government have taken major steps to address
the DWI problem. It is incumbent on all segments of the judiciary to address this issue
with equal vigor. I would like to congratulate those courts that have succeeded in
keeping their DWI caseloads current. For those courts that have DWI backlogs,
immediate attention to this problem is crucial to New Jersey's statewide efforts to
effectively adjudicate DWI cases.
Memorandum
Issued by: Robert D. Lipscher
Administrative Director
We will initiate a longer-term planning activity to reduce on-going delays in DWI
cases, maintaining the standard of 60 days from complaint to disposition in all but
exceptional cases. Your involvement as judge, or where applicable, presiding judge of
your municipal court will be of paramount importance.
1. DWI Backlog Reduction Goal
The goal of the DWI Backlog Reduction program is to reduce the number
of backlogged cases to tolerable levels. Backlog is defined as the number
of DWI cases which are already older than the goal, here 60 days. The 60
day goal set by the Supreme Court is expected to be met in all but
"exceptional" cases. It is estimated that approximately 10% of all cases
are exceptional, having problems which will require more than 60 days for
disposition. Therefore, a portion of your inventory of DWI cases may
properly be over 60 days old. However, this should not represent more
than 10% of the cases under 60 days old. Accordingly, your backlog
reduction goal is to eliminate all DWI cases over 60 days old, with the
exception of the number of cases representing 10% of your DWI inventory
under 60 days old. Courts with less than 10 DWI cases total should not
have more than one DWI case in backlog. If you are not currently clearing
your calendar on DWI (that is, your monthly filings are exceeding
dispositions), then your backlog will be increasing during the course of the
year to the extent of the difference.
2. Backlog Reduction Strategies
As the Chief Justice EDITOR=S NOTEd in the Directive, DWI backlogs are
not to be reduced at the expense of other caseloads. While his desire is
to maximize local initiative in developing methods for backlog reduction
plans, it is strongly urged that the following alternatives be seriously
considered.
a. Case Conferences
Many municipalities have already successfully used calendar calls
as a management tool to identify the nature of their DWI backlog.
This allows for a discussion with each defendant and his or her
attorney as to the needs of each case. If appointed counsel is
required, then that process can be commenced. A municipal court
prosecutor should be in attendance at all case conference
sessions. Discovery needs can also be identified, and the judge
should prepare an order scheduling future events in the case. This
procedure can also identify those cases where the defendant does
not intend to request a trial, allowing guilty pleas to be entered at an
early stage in the proceedings.
b. Special Sessions
Consistent with the requirement not to delay other non-DWI
calendars, it is very likely that, even after case conferences have
been held, special sessions will need to be scheduled to dispose of
your DWI backlog. Again, this alternative has been
successfully utilized in a growing number of municipalities.
Reported experience is that between five and ten cases can be
disposed of at such sessions, averaging seven
cases (although some reports have been as high as 20 cases).
Therefore, if you divide the total excessive backlog estimated at the
bottom of the accompanying memorandum by seven, you will have
a reasonable estimate of the number of special sessions that will be
needed during the eight month period allotted for backlog reduction.
Of course, you should closely monitor DWI filings and dispositions
during the next eight months and adjust the number of special
sessions accordingly.
c. Adjournments
Courts should develop a written and firm policy disfavoring the
adjournment of DWI cases. This policy should be communicated to
attorneys when cases are scheduled.
3. Funding of Special Sessions
In order to conduct special sessions for clearing the DWI backlog, it may
be necessary to identify additional funds. Two major sources of funding
are available for this purpose.
a. State Assistance for Special Sessions Funding. N.J.S.A. 26:2B-35
establishes a Municipal Court Administration Reimbursement Fund
which provides moneys pursuant to the statutory formula for use by
municipal courts in disposing of DWI inventories. The procedure
for applying for these funds is to be found in subsection b(1) of
N.J.S.A. 26:2B-35.
b. Emergency Municipal Appropriations. Such funds will be approved
under an emergency resolution. Enclosed is a letter from the
Director of Local Government Services, as well as an application
form for approval of such appropriations.
4. Calendar Conflict Avoidance
In order to minimize conflict with Superior Court schedules, special
sessions should be scheduled for evenings or Saturdays during the time
of the project. If such sessions must be scheduled during weekdays,
approval must be obtained from the Assignment Judge. A list of all
attorneys involved in these matters should be submitted to the Assignment
Judge so that conflicts with Superior Court cases can be considered.
5. Municipal Public Defenders and Prosecutors
If possible, a municipal public defender should be appointed for indigents
for the purpose of the special sessions, and reimbursement will be allowed
under the grant funds. The municipal prosecutor should examine his or
her needs and the contract under which he or she is employed to
determine whether additional resources are needed for such sessions.
Some courts have reported that special sessions run most smoothly when
a second prosecutor is available to prepare the next case. This should be
considered.
6. Municipal Court Administrators
If the number of special sessions required is large, then you may have to
seek additional resources for your administrator. Perhaps an
administrator from a non-backlogged neighboring municipality can assist
on an overtime basis in preparing for or handling such special sessions.
Your vicinage Trial Court Administrator's office will be familiar with the
experience of special sessions in other municipal courts and will be
available to assist in your planning.
7. Acting Judges
If an acting judge is needed to preside over special sessions, you should
consult with your Trial Court Administrator's office regarding procedures to
obtain an acting judge. Municipal governing bodies may appoint acting
judges under N.J.S.A. 2A:8-5.2 for a term of up to one year. It would be
most practical to use an experienced sitting municipal court judge for such
special sessions, although it is obviously within the discretion of the
governing body to make the appointment. Forms for approval of acting
judge requests can be obtained from your Assignment Judge.
8. Expert and Other Witnesses
I am informed that cases with relatively lower blood-alcohol content
readings sometimes utilize expert witnesses to ascertain alcohol burn-off
and absorption rates, especially when such computations can be used to
question whether the defendant was at or above .10 BAC at the time of
operation. Your plan may provide for the scheduling of such cases
specially to accommodate the needs of such expert witnesses. It may be
further coordinated on a broader basis. This should be discussed when
you meet with the Assignment Judge. As well, in planning special
sessions, it will be obviously useful to coordinate them in a manner
consistent with the needs and availability of local or state police witnesses,
and these needs should be examined and discussed in your local
meetings. These techniques should be employed at this time in order to
meet the standard of 60 days from arrest to disposition for DWI cases so
that we can examine their effectiveness. Your immediate attention to the
DWI backlog in your court is crucial to our statewide efforts to address this
very important problem.
EDITOR=S NOTE
This directive is in two parts consisting of a policy statement by the Chief Justice, followed by a
memorandum implementing the plan by the Administrative Director.
The original directive had contemplated the development of a plan by each municipal court judge
for the disposal of existing driving while intoxicated ("DWI") backlog by May 1, 1985. All references in the
directive and its enclosures to the development of a plan or program have been deleted. Two of the
enclosures, a form for transmitting backlog status as of June 1, 1984 and a reduction plan format, have
also been removed.
The directive has been edited to delete the 1983 statistics in the first paragraph and all references
to the plans in the remaining seven paragraphs. Only the second, third, and eighth paragraphs and
portions of the first and seventh paragraphs have been retained, setting forth the 60 day standard for
disposing of DWI cases.
The supplement to the directive, originally intended to provide material for the development of the
plans, has been edited to delete all reference to those plans, but to retain the proposals for backlog
strategies and for funding which are still valid. The original paragraph 1 suggesting the formation of local
planning committees has been deleted and the remaining numbered paragraphs have been redesignated.
Paragraph 3 on funding has been changed. The Federal Highway Safety grant is no longer in
operation and all reference to it has been deleted. The costs for special sessions based on 1984
computations have also been deleted from that section. In its place two new sources of funding have
been added. N.J.S.A. 26:2B-35 enacted in 1983 and operative February 9, 1984 establishes the
"Municipal Court Administration Reimbursement Fund" and allocates one third of the moneys dedicated
for enforcement in the Alcohol Education, Rehabilitation and Enforcement Fund of the State Department
of Health for use in reducing DWI inventories. In addition, legislation signed on December 23, 1990, (P.L.
1990, c.95 and 96) removes the municipal court budget from the municipal CAP law. These two new
sources of funding have been added.
The third source, emergency appropriations, is still available, and the application form, list of
documents required with the emergency resolution and letter, dated October 7, 1983 from the Director,
Division of Local Government Services are still valid.
In paragraph 6, references to the "municipal court clerk" have been changed to "municipal court
administrator" in accordance with the statutory change in title. (P.L. 1991, c.98, which amends N.J.S.A.
2A:8-13, et. seq.)
In paragraph 7 N.J.S.A. 2A:8-5.2 has been substituted for P.L. 1983, c.430 and the description of
this legislation as "recent legislation" has been deleted. The language has been amended to render it
gender neutral.
Chapter 7 of the Rules Governing the Courts of the State of New Jersey governs practice in
municipal courts. This chapter was substantially revised in 1997 and users of this compilation should
consult the revised chapter for any changes that may affect these directives
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