In the State of New Jersey DWI cases are typically resolved in 60 days

My clients repeatedly ask the same question, "Why was I scheduled to appear in Court on the same day of my arrest for DWI or within days thereof." It should be noted that, some defendant motorists are arrested at 2:00 a.m. released by 4:00 a.m. and are scheduled to appear on that same day, namely at 9:00 a.m. The answer to the question is because New Jersey Municipal Court Judges are advised by their superiors to have all DWI cases resolved in 60 days! Thus, Judges want to advise all defendant's of their legal rights, including his/her right to counsel, as soon as possible. The Administrative Directive reflecting same 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.

IN NEW JERSEY DOUBLE JEOPARDY PROTECTIONS APPLY TO GUILTY PLEAS ENTERED WITHOUT A TRIAL CONVICTION

In State v. Donal Hand, the New Jersey Appellate Court dismissed a DWI ticket and reckless driving charge  on double jeopardy grounds-- even though the defendant entered into a guilty plea to the Fourth Degree indictable offense as opposed to being found guilty of the charge by jury verdict or at the conclusion of a trial. Prior to this decision, there was some debate between the legal community if  the Constitutional protections of Double Jeopardy apply to defendants that voluntarily plead guilty to a charge but were not found guilty of the offense at time of trial (i.e. at the time at lease one witness is sworn in to testify).


THE NEW JERSEY APPELLATE DIVISION OPINION READS AS FOLLOWS:

STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONALD R. HAND,
Defendant-Respondent.
_________________________________
Argued September 29, 2010 - Decided
Before Judges Fisher, Sapp-Peterson and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Municipal Appeal No. 28-12-09.
J. Vincent Molitor, Assistant Prosecutor,
argued the cause for appellant (Robert L.
Taylor, Cape May County Prosecutor,
attorney; Mr. Molitor, of counsel and on the
brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
SAPP-PETERSON, J.A.D.
In this appeal by the State, we determine whether a guilty
plea to fourth-degree creating a risk of widespread injury or
death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent
prosecution in municipal court for certain motor vehicle
APPROVED FOR PUBLICATION
November 29, 2010
APPELLATE DIVISION
November 29, 2010
2 A-3901-09T3
offenses. Defendant moved before the municipal court to dismiss
the motor vehicle charges on double jeopardy grounds. The
municipal judge denied the motion. On appeal de novo to the Law
Division, Judge Kyran Connor granted the motion, vacating the
guilty pleas and dismissing the complaint on double jeopardy
grounds. We affirm.
The underlying facts supporting the indictment occurred on
December 18, 2007, when police received a report of a motorist
operating his vehicle on a hockey rink at Mulligan Field in
Lower Township. Defendant's vehicle nearly struck a group of
children. His vehicle collided with several objects, including
a concrete barrier, a tree, and two trash receptacles. When the
vehicle finally stopped, approximately fifteen men restrained
defendant until police arrived. The arresting officer detected
a strong odor of alcohol on defendant's breath and observed that
defendant's eyes were droopy and watery. Defendant was
belligerent both at the scene and later at a local hospital
where he was transported for treatment. The Lower Township
Police issued summonses to defendant for driving under the
influence (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A.
39:4-96; and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f).
A complaint was also issued for driving a motor vehicle in a
recreational area, in violation of Lower Township Ordinance No.
3 A-3901-09T3
475-1(E)(1). Laboratory tests performed by the State Police
revealed that defendant's blood alcohol content was .237.
On January 29, 2008, a grand jury indicted defendant on a
single count of fourth-degree creating a risk of widespread
injury or death. The indictment read in pertinent part:
DONALD R. HAND, on or about December 18,
2007, in the Township of Lower, County of
Cape May, and within the jurisdiction of
this Court, recklessly did create a risk of
widespread injury or damage, by operating a
motor vehicle in an intoxicated state on a
populated athletic field; contrary to . . .
N.J.S.A. 2C:17-2(c)[.]
On April 17, 2008, defendant, who was represented by
counsel, appeared in Superior Court. His attorney advised the
court that defendant would plead guilty to the indictment and
that in exchange, the State would recommend a 365-day prison
term. In response to this representation, the prosecutor
advised the court:
Judge, that is an accurate representation of
our agreement. I expect the factual basis,
Judge, with regard to this matter . . .
would include . . . defendant acknowledging
that while highly intoxicated[,] he operated
his motor vehicle in an area which was
populated by young kids, a recreational
area, out off the street onto the grass
area[,] placing many of the people there in
risk of injury.
The court thereafter personally questioned defendant under
oath, and defendant admitted that he had consumed a pint of
4 A-3901-09T3
vodka at a home located near the athletic field. He told the
court that he did not know "how [he] got the keys" and did not
remember the events, but accepted the accounts of others
regarding his behavior. He was subsequently sentenced in
accordance with the plea agreement.
The State remanded the traffic summonses to municipal
court for disposition. On November 24, 2009, defendant appeared
before the Lower Township Municipal Court with counsel. At that
time, the prosecutor reported to the court that there "might
possibly be a joint motion" to dismiss the DWI charge because
she "sort of concur[red] with [defense counsel]'s arguments
regarding double jeopardy[.]" The judge disagreed and denied
defendant's motion to dismiss the charges. Six days later,
defendant pled guilty to the DWI and reckless driving offenses.
Noting that this was defendant's seventh DWI conviction, the
judge sentenced him to six months incarceration, a ten-year loss
of his driving privileges, along with appropriate fines and
penalties.
Defendant appealed the conviction to the Law Division,
challenging the denial of his motion to dismiss. Judge Connor,
citing the "same evidence" test set forth in State v. DeLuca,
108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L.
Ed. 2d 358 (1987), reasoned that "defendant's driving while
5 A-3901-09T3
intoxicated was already effectively adjudicated on April 17th,
2008," when defendant pled guilty to the indictable matter. The
judge explained further:
[T]o recap just briefly, I am taking into
account very specifically the facts of this
case where, first of all, the indictment
itself seemed to find its focus on
intoxicated driving as the only
specification of reckless behavior. And
also I focus on . . . the prosecutor's . . .
articulation that he expected the factual
basis to focus on . . . defendant operating
his motor vehicle "while highly
intoxicated." There was also, in my
framework of thinking, something I had
really adverted to directly before, and that
is that the judge[,] at the pre[-]hearing[,]
specifically asked . . . defendant to
confirm that he operated his motor vehicle .
. . "in an intoxicated state of mind on the
occasion in question."
The judge vacated defendant’s guilty pleas to reckless
driving and DWI and then dismissed the charges. In order to
preserve the State's right to appeal, the judge treated the
matter as a motion to dismiss pursuant to Rule 3:28(d), based
upon double jeopardy grounds, rather than an acquittal on both
charges. The State's appeal followed.1
The State raises two points for our consideration:
1 The State has not appealed the dismissal of the reckless
driving charge.
6 A-3901-09T3
POINT I
THE SAME EVIDENCE TEST SHOULD NOT APPLY TO
GUILTY PLEAS.
POINT II
THERE IS NO VIOLATION OF THE PROHIBITION
AGAINST DOUBLE JEOPARDY.
The double jeopardy clause of the Fifth Amendment to the
United States Constitution provides: "Nor shall any person be
subject for the same offense to be twice put in jeopardy of life
or limb." The clause is made applicable to the states through
the due process clause of the Fourteenth Amendment. Our State
Constitution, article I, paragraph 11, contains a parallel
provision, which provides: "No person shall, after acquittal,
be tried for the same offense." See DeLuca, supra, 108 N.J. at
101-02. Although the language of the New Jersey Constitution
references "acquittal," our Supreme Court has "consistently
interpreted the state constitutional double jeopardy protection
as co-extensive with the guarantee of the federal Constitution."
Id. at 102 (citing State v. Dively, 92 N.J. 573, 578 (1983);
State v. Barnes, 84 N.J. 362, 370 (1980); State v.
Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Wolf, 46 N.J.
301, 303 (1966)). Hence, the double jeopardy clause affords
protection in three contexts: (1) "[it] 'protects against a
second prosecution for the same offense after acquittal'"; (2)
7 A-3901-09T3
"'[i]t protects against a second prosecution for the same
offense after conviction'"; and (3) "'it protects against
multiple punishments for the same offense.'" DeLuca, supra, 108
N.J. at 102 (quoting North Carolina v. Pearce, 395 U.S. 711,
717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969)
(footnotes omitted)). The latter two categories are implicated
here.
As the Court discussed in DeLuca, the double jeopardy
analysis involves consideration of two prongs: (1) the "same
offense" test, which focuses upon the statutory elements of a
crime rather than proofs proffered for conviction; or (2),
alternatively, the "same evidence" test, which focuses upon
whether the same evidence used to prove the first offense is
necessary to prove the second offense. DeLuca, supra, 108 N.J.
107 (agreeing with the Appellate Division panel in State v.
DeLuca, 208 N.J. Super. 422, 434 (App. Div. 1986), that the
Supreme Court in Illinois v. Vitale, 447 U.S. 410, 420-21, 100
S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980), intended the
second prong to be an alternative to the first prong).
The statutory elements for creating a risk of widespread
injury are: (1) recklessness; and (2) creation of a risk of
widespread injury or damage. N.J.S.A. 2C:17-2(c); see also
Model Jury Charges (Criminal), "Recklessly Risking Widespread
8 A-3901-09T3
Injury or Damage" (2005). Proof of DWI requires: (1) operation
of a motor vehicle; and (2) operation while under the influence
of alcohol or an intoxicant. See N.J.S.A. 39:4-50(a); see also
State v. Eckert, 410 N.J. Super. 389, 402 (App. Div. 2009).
Because different statutory elements are required to prove each
offense, there is no dispute that the first prong analysis does
not apply to the present matter. Therefore, it is only the
second prong or "same evidence" test that is pertinent here.
The State argues that the "same evidence" test should not
be applied to guilty pleas. Relying upon In re Seelig, 180 N.J.
234 (2004), State v. Colon, 374 N.J. Super. 199 (App. Div.
2005), and State v. Capak, 271 N.J. Super. 397 (App. Div.),
certif. denied, 137 N.J. 164 (1994), the State contends the
prohibition against double jeopardy "was not created to enable a
defendant to, by entering a guilty plea to one offense, avoid
punishment for the remainder of his misdeeds." Rather, it
maintains that the "same evidence" test focuses upon "the actual
evidence to be presented at trial." Colon, supra, 374 N.J.
Super. at 214. The State asserts that had defendant proceeded
to trial, in addition to evidence that defendant operated his
motor vehicle under the influence, it would have introduced
additional facts to establish that defendant created a risk of
widespread injury or death. Specifically, it would have
9 A-3901-09T3
introduced evidence that (1) defendant operated his vehicle on
an athletic field while adults and children were present; and
(2) defendant's vehicle nearly struck several people on the
baseball field, hockey rink, and near the concession stands.
The State urges this evidence would have been sufficient to
prove that defendant recklessly created a risk of widespread
injury or death, irrespective of whether he operated his motor
vehicle while under the influence of alcohol.
We agree that if presented, such proofs could sustain a
conviction for the offense, but what could have occurred is not
the test. Rather, it is only what in fact occurred that informs
our analysis and decision here. As the Law Division noted, in
both the indictment and at the time defendant pled guilty to the
indictment, it was defendant's operation of the motor vehicle
under the influence that formed the "essential facts
constituting the crime charged" in the indictment and
defendant's subsequent guilty plea. R. 3:7-3(a). ("The
indictment . . . shall be a written statement of the essential
facts constituting the crime charged."). His guilty plea
"leading to a judgment of conviction has the force of an
admission of guilt on the charge based on [his] sworn factual
statement[.]" State, Dep't of Law & Pub. Safety v. Gonzalez,
142 N.J. 618, 630 (1995). "It is unthinkable that the
10 A-3901-09T3
Legislature would intend that judgments of conviction should be
treated differently depending on whether they resulted from
guilty pleas or trials." Ibid. We therefore reject the narrow
interpretation advanced by the State that the "same evidence"
test should only apply to trials.
Vitale, supra, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d
228, involved a guilty plea. There, the defendant had
previously pled guilty to failure to slow to avoid an accident.
The Supreme Court held that the defendant's subsequent
prosecution for manslaughter would be barred if the defendant's
failure to slow to avoid an accident was the reckless act upon
which the prosecution would rely to prove the manslaughter. Id.
at 421, 100 S. Ct. at 2267, 65 L. Ed. 2d at 238.
Likewise, in the present matter, defendant's operation of
his motor vehicle under the influence was expressly included as
part of the underlying facts constituting the offense as set
forth in the indictment. Further, the State required, as part
of defendant's plea to the indictment, that he acknowledge
operation of his motor vehicle under the influence. Thus, as in
Vitale, defendant's subsequent prosecution for DWI would be
barred because proof that defendant operated his motor vehicle
under the influence required the same proofs that the State
relied upon to establish the greater offense. Vitale, supra,
11 A-3901-09T3
447 U.S. at 421, 100 S. Ct. at 2267, 65 L. Ed. 2d at 238;
DeLuca, supra, 108 N.J. at 107-09; Dively, supra, 92 N.J. at
581-82.
The State's reliance upon In re Seelig, Colon, and Capak is
misplaced. In re Seelig involved the acceptance of guilty pleas
in municipal court from a defendant involved in a motor vehicle
accident resulting in the death of two people. In accepting the
pleas, the judge failed to comply with Administrative Directive
#10-82, "Action on Cases Involving Possible Indictable Offenses"
(May 3, 1983), a directive issued by the Administrative Director
of the Courts following our Supreme Court's decision in Dively.
In re Seelig, supra, 108 N.J. at 240. The directive required
municipal judges or clerks to notify the county prosecutor of
motor vehicle accidents involving death or serious injury in
order to afford prosecutors an opportunity to determine whether
indictable offenses are involved, and if a decision is made to
present the matter before a grand jury, staying municipal court
proceedings unless and until further notice from the county
prosecutor. Directive #10-82. Substantial defects in the
municipal court judge's acceptance of the guilty plea ultimately
resulted in an order vacating the guilty pleas. In re Seelig,
supra, 180 N.J. at 256-57. The instant matter does not involve
non-compliance with any administrative directive, nor is there
12 A-3901-09T3
any evidence of substantial defects in the Law Division judge's
acceptance of the guilty plea.
The language the State quotes in its brief from Colon,
supra, 374 N.J. Super. at 214, that the "same evidence" test
focuses upon "the actual evidence to be presented at trial[,]"
refers to our discussion of the double jeopardy clause in the
context of the "same elements" test adopted in Blockburger v.
United States, 284 U.S. 299, 303-04, 52 S. Ct. 180, 181-82, 76
L. Ed. 306, 309 (1932) and reaffirmed in United States v. Dixon,
509 U.S. 688, 703-12, 113 S. Ct. 2849, 2859-64, 125 L. Ed. 2d
556, 572-78 (1993). Although the State argued in Colon that in
light of Dixon, only the "same elements" test applied to a
double jeopardy analysis, we rejected this more restrictive
approach:
As an intermediate appellate court, we are
therefore confronted with the difficult
determination of whether to adhere to the
Court's existing interpretation of federal
and state double jeopardy protections, set
forth in [State v.] Yoskowitz[, 116 N.J. 679
(1989);] DeLuca and Dively, or, without
significant precedent to suggest that the
Court would narrow or restrict the
flexibility of its view of double jeopardy
to accord with newly-established federal
constitutional law, to forecast that it
would do so in a state constitutional
context. We find the latter course to be
presumptuous, and, accordingly, follow Capak
in holding that such a determination must be
made by the Supreme Court, not by us. We
accordingly view defendant's proofs in light
13 A-3901-09T3
of the "same conduct" test in determining
whether state constitutional proscriptions
against double jeopardy have been violated.
[Colon, supra, 374 N.J. Super. at 216.]
Finally, in Capak, supra, the conduct at issue in the
indictable matter was different from that implicated in the
disorderly persons offenses that had been resolved in municipal
court. 271 N.J. Super. at 401. The non-indictable offense
dealt with a theft from the defendant's employer and
"encompassed the means by which [the] defendant obtained the
prescription pad, but the indictable prosecution related to her
subsequent use of the pad in an illegal manner," namely, in the
"defendant's endeavor to obtain [a controlled dangerous
substance]." Ibid. Consequently, we concluded that the case
dealt with "isolated events, not a single event which was the
subject of multiple prosecutions" as was the situation in
Vitale, supra, and Grady v. Corbin, 495 U.S. 508, 110 S. Ct.
2084, 109 L. Ed. 2d 548 (1990). Id. at 402.
In short, although here there were alternative facts that
could have been proffered and accepted in order to establish a
factual basis for defendant’s plea to the indictment, the State
elected to limit the "underlying facts constituting the offense"
to the DWI. It is therefore precluded from separately
prosecuting defendant for DWI. DeLuca, supra, 108 N.J. at 102.
14 A-3901-09T3
Affirmed.

Stalker Lidar Device found unreliable in the State of New Jersey

On November 9, 2010, the New Jersey Appellate Division in State v. John Green found that Stalker Lidar Device used by law enforcement to measure a motorist speed has not been established to be accurate or reliable. The consequence of the Court's decision is that Municipal Courts through-out the State may not use the Stalker Lidar's reading of a motorists speed as proof of speed!!! In other words, if a police officer issues a New Jersey motorist a speeding ticket based on the speed measuring device known as Stalker Lidar then the Municipal Court presiding over the speeding ticket must dismiss the speeding charge!

ASSEMBLY APPROVES BILL STIFFENING BAIL RULES IN DOMESTIC-VIOLENCE CASES

 Defendants charged with domestic violence and related offenses will have a harder time making bail if a bill passed by the New Jersey State Assembly becomes law. The measure, A-1491, would add domestic violence and violations of restraining orders to the list of first- and second-degree crimes in which defendants must post the full amount of the bail or obtain a surety bond or a bail bond secured by real property. An amendment to the bill removed language that set a mandatory bail minimum of $5,000 for a crime of domestic violence. 
The Assembly passed the measure in a 77-1 vote. It now goes to the Senate.

IS DELEWARE v. PROUSE DEAD?

In Deleware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L.Ed. 2d 660 (1979), the United States Supreme Court held that Police must have at least an articulable and reasonable suspicion that a violation of the traffic laws has occurred in order to stop a motorist.  In other words, the legal opinion in  Deleware v. Prouse made it illegal for the Police to randomly stop motorists. 
           Recently, New Jersey Courts have devised a way to get around the protections espoused in Deleware v. Prouse. New Jersey courts use a legal doctrine known as community caretaking exception to the warrant requirement to justify random police stops of motorist--even if that motorist has not committed any single motor vehicle infraction!

A brief overview of the community caretaking function and it's evolution in New Jersey

In New Jersey the community caretaking exception to the warrant requirement first developed in State v. Goetaski, 209 N.J. Super. 362, 507 A. 2d 751 (App. Div. 1986). In Goetaski, the Court held that police officer who at 4 a.m. observed defendant slowly driving for one tenth of a mile on the shoulder (which the court defined as being “that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular travel)of rural state highway in 50-mile per hour zone with his left turn indicator flashing could stop defendant's vehicle to inquire whether “something was wrong” without violating defendant's Fourth Amendment rights or rights under State Constitution, even though officer observed no traffic violation prior to stop.
    Relying on the community caretaking exception, the Appellate Division State v. Washington, held that police officer had objectively reasonable basis to stop defendant's automobile when defendant was unjustifiably driving under speed limit and vehicle was weaving within it’s lane. The Court noted, weaving within its own lane of travel may not technically commit a motor vehicle violation. Id.  Moreover, the Court pointed out that the defendant’s driving was unjustified. According to the Court’s opinion the defendant drove in a manner that would have likely resulted in him traveling into the other lane. The Court decision justified an officer stopping a motorist that was violationg no motorvehicle laws!! 
    The Appellate Division in State v. Cryan, 320 N.J.Super. 325, 727 A.2d 93 (N.J.Super.A.D. 1999), held that stopping defendant because he failed to proceed for five seconds after a red light turned green was not justified on a community caretaking basis.
    The Appellate Division in State v. Costa, 327 N.J.Super. 22 (App. Div. 1999), in dicta, provided an insightful review of the community caretaking exception and it’s application by New Jersey Courts,
    “The Supreme Court of the United States first addressed the community care taking function in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L.Ed.2d 706, 714-15 (1973). Community care taking relates directly to a local official's duty to investigate accidents or disabled vehicles on public roadways. Ibid. It was to be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Ibid.
        New Jersey first recognized the community care taking function in State v. Goetaski, 209 N.J. Super. 362, 507 A.2d 751 (App. Div.1986). In Goetaski, this court recognized that the police have the ability to make benign automobile stops for the purposes of rendering assistance. Id. at 365-66, 507 A.2d 751. Community care taking stops are differentiated from pre-textual and unconstitutional abuses of authority by the unique facts that give rise to such stops. Id. at 363, 507 A.2d 751 (stopping a car driving slowly on the shoulder of a rural road at 4:00 a.m. was a proper exercise of community care taking authority); see, e.g., State v. Martinez, 260 N.J. Super. 75, 615 A.2d 279 (App. Div.1992) (stopping a vehicle moving between five or ten miles per hour in a residential area at 2:00 a.m. was a proper exercise of authority); State v. Garbin, 325 N.J. Super. 521, 739 A.2d 1016 (App. Div.1999) (warrantless entry into defendant's garage to investigate smoke emanating therefrom was a proper **603  exercise of the community care taking function).”

As evident in the cited summary of the community caretaking exception applied by New Jersey courts, the protections afforded by Deleware v. Prouse to protect motorists from unjustified police intrusion is slowly being curtailed . If New Jersey Courts continue to rely on Community Caretaking doctrine to substantiate an unlawful stop based on mere subjective notions of wrongdoing, then this State would be relegated to the draconian policy it espoused prior to Deleware v. Prouse–namely there is a legal justification to all motor vehicle seizure by police.  Once again Police would enjoy unrestricted power over any motorist!

NJ DWI SUSPECTS ENTITLED TO ADDITONAL DISCOVERY MATERIAL

In a recent unpublished opinion the Appellate Division in State v. Maricic, A-5247-08, ruled that the state MUST make available repair logs and historical data concerning the Alcotest machine at issue. The significance of this opinion is that the Appellate Division added additional discovery items that a defendant may avail him/herself in defending his/her dwi/dui case. Moreover, the instant decision reversed a previous law division Judge's Order denying said discovery. ANOTHER VICTORY FOR ALL DEFENDANTS CHARGED WITH A DWI/DUI IN THE STATE OF NEW JERSEY (NJ).

COMMUNITY SERVICE IN LIEU OF JAIL FOR DRIVING ON SUSPENDED DUE TO DWI STILL AVAILABLE TO DEFENDANTS?

If a defendant is charged and pleads guilty to driving on a suspended license due to an underlying offense of driving under the influence (DWI), can that defendant avail him/herself of serving the mandatory jail term in SLAP (a form of community service) in lieu of jail. According to State v. White, a municipal court opinion, that was written by Hon. Richard Bowe, J.M.C, the answer is NO!!


What is the practical affect of this decision? It can be argued that this opinion does not apply to defendants charged in differing counties or courts. In addition, it can be argued that the opinion is persuasive at best, in that, other municipal court judges are not bound.

LEGISLATURE RECENTLY AMENDED THE SEAT BELT LAW BY REQUIRING ADULT REAR SEAT PASSENDERS TO BUCKLE UP

The new law reads as follows: 

39:3-76.2f. Seat belt usage by drivers and passengers required

a. Except as provided in P.L.1983, c. 128 (C.39:3-76.2a et al.) for children under eight years of age and weighing less than 80 pounds, all passengers under eight years of age and weighing more than 80 pounds, and all passengers who are at least eight years of age but less than 18 years of age, and each driver and front seat passenger of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt system as defined by Federal Motor Vehicle Safety Standard Number 209.

b. The driver of a passenger automobile shall secure or cause to be secured in a properly adjusted and fastened safety seat belt system, as defined by Federal Motor Vehicle Safety Standard Number 209, any passenger who is at least eight years of age but less than 18 years of age.

c. All rear seat passengers 18 years of age or older of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt system as defined by Federal Motor Vehicle Safety Standard Number 209.

For the purposes of the “Passenger Automobile Seat Belt Usage Act,” the term “passenger automobile” shall include vans, pick-up trucks, and utility vehicles.

NEW JERSEY (NJ) LEGISLATURE INCREASED THE PENALTIES OF A DWI CONVICTION!

On January 14, 2010 the NJ Legislature changed the penalties a person incurs if he/she pleads guilty to a DWI. The new changes will require, for the most part, that a judge order the installation of an ignition interlock device on a vehicle principally operated by the defendant  (an ignition interlock device is a device that is attached to a person's car that before the vehicle's motor can be started, the driver first must exhale into the device, if the resultant breath-alcohol concentration analyzed result is greater than the programed blood alcohol concentration — usually 0.02% or 0.04%, the device prevents the engine from being started).
    Prior to this new legislation, a new jersey municipal court judge had authority and/or discretion to either mandate or disallow a person convicted of driving under the influence of alcohol, in violation of N.J.S.A. 39:4-54, to install an ignition interlock device onto his/her vehicle. However, the new changes adopted by the legislature, which are adopted and incorporated in N.J.S.A 39:4-50.17, mandate that a defendant convicted of a DWI install an interlock device on the vehicle he/she principally operates and refrain from operating any vehicle that is not so equipped.
    The only exception to this requirement is to first time offenders who have a BAC level below .15%.
    The practicality of this new law is that persons convicted of a DWI are going to bear additional costs post conviction. In addition, to all the other costs associated with a DWI conviction an offender will have to pay for an ignition interlock device (that has been known to malfunction and cause unnecessary problems) and struggle with blowing into it on a daily basis. For a detailed explanation of the new changes see,  N.J.S.A. 39:4-54.

IN NEW JERSEY DELAYING A DWI TRIAL FOR 344 DAYS REQUIRES DISMISSAL OF THE DWI

 In the most recent New Jersey Appellate Division decision of State v. Tsetsekas, the Court held that a delay of 344 days in bringing defendant to trial on charge of driving while intoxicated (DWI) violated defendant's speedy trial rights, thus requiring reversal of conviction; delay was more than five times the stated objective, delays were numerous, mostly avoidable, largely unexplained, and caused by State's failure to be ready to proceed, which caused disruption of defendant's everyday activities, the consumption of time and money, and emotional anxiety and uncertainty, resulting in more than minimal prejudice to defendant. U.S.C.A. Const.Amend. 6.

PRIOR GUILTY PLEA TO NJ DWI REFUSAL TO TAKE A BREATHE TEST WILL BE TREATED AS A PRIOR DWI CONVICTION FOR SENTENCING PURPOSES

In State v. Ciancaglini. the New Jersey Appellate Division reversed a long-standing precedent by holding  that a prior conviction for refusing to take the breathalyzer test is considered a prior “violation” or “offense” for purposes of the DWI statute. In essence, the Court's decision treats defendants that previously pled guilty to refusing to take a the breathalyzer (as opposed to individuals guilty of driving under the influence of alcohol or drugs) the same, for sentencing purposes, as if that defendant actually pled guilty to driving under the influence of drugs or alcohol.  The practical application of this decision will make a defendant that was acquitted of a driving under the influence of alchohol (DWI) but pled guilty to Refusing to take a breathalyzer test the same as a defendant that actually pled guilty to a DWI.