This morning, the Appellate Division released In re Petition for Expungement of W.S. The case involves a challenge by the State to an expungement that was granted in the Law Division on a 15 year old conviction for a sexual assault under N.J.S.A. 2C:14-2.
Not all criminal offenses are subject to expungement. Under N.J.S.A. 2C:52-2(b), the Legislature has excluded offenses under N.J.S.A. 2C;14-2, but placed the words “(aggravated sexual assault)” after the statutory reference. The Appellate Division ruled in W.S. that the prohibition in N.J.S.A. 2C:52-2(b) includes both the first degree crime of aggravated sexual assault and the second degree crime of sexual assault.
Download In re W.S.
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Yesterday, the New Jersey Supreme Court decided Caviglia v. Royal Tours of America. The holding of the Court affirmed the constitutionality of N.J.S.A. 39:6A-4.5 and reversed an Appellate Division opinion written by Judge Pressler and reported at 355 N.J. Super 1 (App. Div. 2002).
The relevant statute is printed below. Note that it bars an action for economic (medicals) and non-economic (pain and suffering) damages in 4 situations. They include:
1. Driving without liability insurance;
2. drunk driving;
3. refusal to take a breath test; and
4. purposefully causing injury to self or another.
So, in the case of a drunk driver who is struck from the rear and severely injured, his or her plea in municipal court to a violation of N.J.S.A. 39:4-50 would foreclose a subsequent lawsuit for economic or non-economic damages. So too will a refusal to take the breath test. These are critically important collateral consequences of a conviction in municipal court.
Please further note that the provisions of N.J.S.A. 39:6A-4.5 do not bar a subsequent lawsuit to recover property damages (Mody v. Brooks, 339 N.J. Super. 392 (App. Div. 2001)) or a suit based upon social host liability (Camp v Lummino, 352 N.J. Super. 414 App. Div. 2002).
N.J.S.A. 39:6A-4.5 provides:
. Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by section 4 of P.L.1972, c.70 (C.39:6A-4), section 4 of P.L.1998, c.21 (C.39:6A-3.1) or section 45 of P.L.2003, c.89 (C.39:6A-3.3) shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.
b. Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.
c. Any person acting with specific intent of causing injury to himself or others in the operation or use of an automobile shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident arising from such conduct.
Download Caviglia v. Royal Tours
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On January 13th, the United States Supreme Court decided Illinois v. Lidster. This case involved a police road block which had been established in order to interview motorists about a crime that had occurred in the area recently. The defendant was the operator of one of the vehicles that was stopped. He was found to be intoxicated.
The court held that while roadblocks that are established strictly for crime control purposes are generally unreasonable (e.g. stopping vehicles in an effort to find secreted drugs), a roadblock established for the limited purpose of gathering information related to a crime is reasonable under the Fourth Amendment.
Download Illinois v. Lidster
copyright Mini-mail 2004 – All Rights (and Lefts) Reserved.
The bill to amend the refusal statute is S863. Printed below is the bill as it current stands in the Senate. The materials [in brackets] will be deleted from the final version of the bill.
SENATE, No. 863
STATE OF NEW JERSEY
INTRODUCED FEBRUARY 9, 2004
Senator JOSEPH F. VITALE
District 19 (Middlesex)
Senator ELLEN KARCHER
District 12 (Mercer and Monmouth)
Clarifies sentencing provisions for certain drunk driving offenses.
CURRENT VERSION OF TEXT
An Act concerning refusal to submit to a breath test, amending P.L.1981, c.512 and supplementing chapter 4 of Title 39 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1981, c.512 (C.39:4-50.4a) is amended to read as follows:
2. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50, shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for [six months] not less than seven months or more than one year unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.
The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operator’s license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f.) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. [The] For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident. For a second or subsequent offense, the revocation shall be [independent of] consecutive to any revocation imposed [by virtue of] for a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than [$250.00 nor] $300 or more than [$500.00] $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense.
b. [The] For a first offense, the fine imposed upon the convicted person shall be not less than [$500] $600 or more than $1,000 and the period of license suspension shall be not less than one year [for a first offense, four years for a second offense and 20 years for a third or subsequent offense, which period shall commence upon the completion of any prison sentence imposed upon that person]; for a second offense, a fine of not less than $1,000 or more than $2,000 and a license suspension for a period of not less than four years; and for a third or subsequent offense, a fine of $2,000 and a license suspension for a period of 20 years when a violation of this section occurs while:
(1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;
(2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or
(3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.
A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1997, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.
It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.
(cf: P.L.1999, c.185, s.5)
2. (New section) In order to promote the uniform enforcement of R.S.39:4-50 and section 2 of P.L.1966, c.142 (C.39:4-50.2), the Attorney General shall promulgate guidelines concerning the prosecution of such violations. The guidelines shall be disseminated to county and municipal prosecutors within 120 days of the effective date of this act.
3. This act shall take effect immediately.
This bill would clarify the penalties for refusing to submit to a breathalyzer test after being arrested for drunk driving. Under the bill, persons who refuse to submit to such a test would lose their driver’s license for seven months to one year for a first offense.
The State’s drunk driving law was recently amended by P.L.2003, c.314 to reduce the blood alcohol content (BAC) at which a person is guilty of drunk driving from 0.10% to .08%. Under this new law, first time offenders whose BAC is 0.08% or higher but less than 0.10% will lose their driver’s license for three months; if their BAC is 0.10% or higher, they will lose their license for seven months to one year.
Currently, persons who commit a first offense of refusing to submit to a breathalyzer test after being arrested for drunk driving lose their license for six months. This bill would increase this period of license suspension to seven months to one year so that a first time offender would receive the same penalties that a drunk driver with a BAC of 0.10% receives.
The bill also amends the refusal statute to specify that the period of license suspension imposed for a first offense of refusing to submit to a breathalyzer test may be concurrent or consecutive to a license suspension imposed for a drunk driving offense arising out of the same incident. The bill also clarifies the language concerning consecutive license suspensions for second or subsequent refusal convictions and convictions for drunk driving.
The bill revises the penalties imposed for refusing to submit to a breathalyzer test when that offense occurs in a school zone.
In order to promote uniform enforcement of the drunk driving and the refusal statutes, the bill requires the Attorney General to promulgate guidelines concerning the prosecution of violations of those statutes. The guidelines are to be disseminated to county and municipal prosecutors within 120 days of the bill’s effective date.
Effective today, an additional $1 must be added to the amount of any fine or penalty imposed upon a conviction for any offense under Title 39. This brings the total amount of assessments that must be added to every fine or penalty for Title 39 offenses occurring on or after today’s date to $5.
Thus, for example, driving on the revoked list (without enhancements) for a first offense should be given a fine of $505. ($500 + $5).
The funding for the various assessments is set forth under N.J.S.A. 39:5-41(d) through (h).
The additional $1 going into effect today has already been included in the Statewide Violations Schd, which will not change.
Finally, please note that another $1 will be assessed beginning later this year to pay for brain injury research. The total assessment will then be $6.
copyright 2004 Muni-mail – All Rights Reserved.