Monthly Archives: June 2005

Beyond Reasonable Doubt Applies to Refusal – State v. Cummings

This morning’s Supreme Court decision in State v. Cummings creates a new rule of law. The Justices held that the burden of proof on the State in a prosecution for refusal to submit to a breath test is proof beyond a reasonable doubt, as opposed to the statutory burden of a preponderance of the evidence under N.J.S.A. 39:4-50a(a). The Court based its ruling upon a recognition of the increasingly serious penalties associated with the refusal charge. The Justices also recognized the propriety of this increased burden of proof as a natural extension of the Court’s analysis of the refusal statute in State v. Widmaier, 157 N.J. 475 (1999). In that case, the Court ruled that double jeopardy protections apply to the refusal charge.

In assessing whether to apply this morning’s ruling and new rule of law retroactively, the Justices adopted the so-called “pipeline retroactivity” option. This means that the retroactivity component of the decision only applies those cases that are in the “pipeline” today; i.e. the case under review, cases currently on appeal and all future cases.

Download a copy of State v. Cummings

(c) Muni-mail 2005 – All rights (and lefts) reserved.

Category: Muni-Mail Archive

Increase in fees for transcripts

The Administrative Office of the Courts today announced an increase in the fees that may be charged for transcripts. The new fee will be $3.49 per page of a standard delivery transcript and 58 cents per page for each copy.

The increase will affect the fee that will have to be paid for transcript preparation for municipal appeals under Rule 3:23-2 and Rule 3:24.

The Administrative director’s Notice to the Bar is printed below:

NOTICE TO THE BAR

Increase in Per Page Transcript Fees

This notice is to advise that pursuant to the provisions of N.J.S.A. 2B:7-4, effective July 1, 2005, the per page transcript fees are increased to $3.49 for each page of an original standard delivery transcript and $0.58 for each of the copies thereof.

The fees for “a transcript of a stenographic record or other recording in any court or in any other proceeding recorded at the direction of the Supreme Court” are set by N.J.S.A. 2B:7-4. Those fees are recalculated every five years “to reflect changes in the Consumer Price Index (CPI)”, with the specific recalculation formula set forth in that statute. The new fees resulting from those periodic recalculations become effective on July 1 of the year in which the recalculations are made.

Thus, based on the formula set forth in N.J.S.A. 2B:7-4, effective July 1, 2005 the new page rate will be $3.49 for each page of an original standard delivery transcript and $0.58 for each of the copies thereof.

Philip S. Carchman, J.A.D.
Acting Administrative Director of the Courts
Dated: June 14, 2005

Category: Muni-Mail Archive

No Dismissal of Refusal in Exchange for 1st Offense DWI Plea

Late this afternoon, the Administrative Office of the Courts on behalf of the Chief Justice and the Supreme Court issued a press release and a notice to the bar which announced an important amendment to the Guidelines controlling the practice of plea bargaining in municipal court. Under the amended Guidelines, a first offender charged with drunk driving and refusal to submit to a breath test may no longer conclude a plea agreement that calls for a dismissal of the refusal charge in exchange for a dismissal of the refusal charge. It is important to note the following details related to the Court’s amendment:

1. First offenders only – The prohibition on the dismissal of refusal charges in exchange for a plea to the dwi charge is limited only to first offenders. A plea agreement that calls for the dismissal of a refusal charge in exchange for a plea to the dwi ticket is still permitted for second or subsequent offenses.

2. Concurrent suspensions – A plea agreement for a first offense that call for a plea of guilty to both the dwi and refusal charges in exchange for a recommendation of concurrent driver’s license suspensions is still permitted. Although not discussed in the Guideline amendments, such a plea bargain would be illegal for second and subsequent dwi offenses since the statutes require consecutive suspension in these cases.(N.J.S.A. 39:4-50.4a(a)).

3. The effective date of the amended Guidelines is July 1, 2005.

4. Other downgrades – The amended Guidelines also prohibit a plea agreement that calls for a plea of guilty to a violation of N.J.S.A. 39:4-50(a)(1)(i) (BAC of .08% but less than 0.10%) when the defendant’s BAC is 0.10% or greater.

5. The Court’s announcement comes as a surprise in that the Justices did not wait for the beginning of the new Court year in September. The reasoning that went into the Court’s decision is spelled out in the press release that follows.

Also, attached to this Muni-mail is a copy of the Notice to the Bar and the Amended Guidelines that go into effect in 2 weeks.

For immediate release: June 15, 2005
For further information contact
Winnie Comfort, AOC
Tamara Kendig, AOC
(609) 292-9580

Change in DWI Plea Agreements in Municipal Court

New Jersey Chief Justice Deborah T. Poritz has signed an order amending the “Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.” As explained in the Notice to the Bar signed by Administrative Director Judge Philip S. Carchman, the plea agreement guidelines are being amended to address issues raised by two recent changes to New Jersey’s drunk driving laws.

“These changes in the law set up a scenario whereby drivers who were stopped for suspected drunk driving for the first time and who refused to take a blood alcohol test could take advantage of a ‘loophole’ in the system,” said Judge Carchman.

In January 2004, the Legislature amended the law to add a new level of offense for drivers with a blood alcohol content (BAC) of 0.08 percent or higher, but less than 0.10 percent. First-time offenders with a lower level BAC face a three-month license suspension. Drivers with a higher BAC face a seven-month suspension, up from the six months under the old law. Drivers who refuse to take the BAC test typically face two charges, one for driving while intoxicated and one for refusing to take the test. In addition to the seven-month suspension for refusing to take the BAC test, the new law calls for a three-month suspension on the charge of drunk driving for drivers who refuse to take the test. These sentences may be served concurrently.

In April 2004, the Legislature increased the license suspension for refusing to take the BAC test from six months to seven months. This amendment made penalties under the new law consistent with the penalties under the old law: Refusing to take the test carries the same penalty as having a high BAC reading.

Judge Carchman explains in the Notice to the Bar that, rather than suffer a seven-month suspension for refusing to take the test, a driver could agree to plead guilty to driving while intoxicated with a BAC of between 0.08 and 0.10, and accept a three-month suspension in exchange for a dismissal of the charge for refusing to take the test. Without the results of a blood test to prove exactly what the blood alcohol level was, the guilty plea for the lower BAC could be accepted and the driver’s license suspended for three months.

“It is clear that the Legislature intended to make the penalties for driving drunk in New Jersey more severe and to identify a broader range of drinking and driving as illegal. Some members of the legal community have expressed concern that the amended guidelines would result in more trials. We have no clear indication of that result. However, if more trials occur, we will handle them. The alternative is unacceptable,” he added.

The amended guidelines prohibit plea agreements that result in the dismissal of charges for refusing to take the blood alcohol test in exchange for pleading guilty to drunk driving. The amended guidelines also make it clear that attempts to plead guilty to the lower level offense, despite a BAC of 0.10 or higher, are strictly prohibited. The changes become effective July 1, 2005.

Download a copy of the Notice to the Bar

Copyrighted © 2001 – New Jersey Judiciary

Category: Muni-Mail Archive

Proof of serious life impact not part of AICRA – DiProspero v. Penn

In the landmark case of Oswin v. Shaw, 129 N.J. 290 (1992), the New Jersey Supreme Court ruled that in order for a plaintiff to maintain an action under the verbal threshold for pain and suffering, he or she would have to prove the injury in question fit within one or more of nine statutorily defined categories and that the victim had suffered a “serious life impact.” In 1998, the Legislature enacted the Automobile Insurance Cost Reduction Act (AICRA) N.J.S.A. 39:6A-1.1 et seq. which replaced the verbal threshold with a so-called limitation on lawsuit threshold, N.J.S.A. 39:6A-8(a).

AICRA contains only six categories of serious injuries and no statutory requirement of a “serious life impact.” Given the enormous impact that Oswin v. Shaw had on the Legislature in enacting AICRA, was it the Legislature’s intention to require that plaintiffs continue to establish a “serious life impact” as a result of the accident and injury? In essence, is the entire holding of Oswin v. Shaw part of AICRA?

This morning, in an opinion written by Justice Albin, the Justices ruled that the “serious impact” element required by Oswin v. Shaw IS NOT part of AICRA and accordingly, plaintiffs have no need to offer proof on this issue in suits for pain and suffering resulting from an automobile accident.

There is no doubt that the opinion in this case, captioned DiProspero v. Penn will have an immediate, serious life impact on both the plaintiffs’ and automobile insurance defense bar in New Jersey and may spark additional legislation related to AICRA.

Download a copy of DiProspero v. Penn

Category: Muni-Mail Archive

Attorney General 2005 DWI Penalty Table

Today, the Attorney General released a directive that relates to the 2005 DWI Penalty Table. The table provides a useful, shorthand way of finding the direct consequences required under New Jersey law for drunk driving and related offenses.

Please note that in certain instances, the New Jersey law as to what the correct sentence should be is not clear or unsettled. The table recognizes this and contains a disclaimer as to certain for the sentences related to driving on the revoked list. In another instance, the table indicates that a first offense in a school zone has an optional 60-day jail term (which seems to be the practice around the State) although the statute (N.J.S.A. 39:4-50(g)(3)) requires a jail term of not more than 60-days. Accordingly, please take this into consideration when utilizing the data contained in this table, which is linked below for your use and convenience.

Download a copy of the DWI penalty table

Category: Muni-Mail Archive

New Rules for Atty Internet Advertising – Opinion 32

Yesterday’s Opinion 32 from the Supreme Court Committee on Attorney Advertising contains several important new rules governing attorney advertising on the internet.

First, a firm or attorney’s web address (URL) need NOT contain the name of a member of the firm as is otherwise required in other types of attorney advertising under RPC7.5(a). However, the web address cannot contain false or misleading information (e.g. www.iwineverycaseandgetyoulotsofmoney.org) nor can it be used as an exclusive substitute for the firm name.

Second, the actual law firm home page of the site must contain the firm or attorney’s name, business street address and telephone number. The site must also display any disclaimers or or advisories required by the Rules of Professional Conduct.

Download a copy of Opinion 32

Category: Muni-Mail Archive

Totality of Circumstances Applies to Confession – State v. Knight

This morning’s New Jersey Supreme Court ruling in State v. Knight is a major decision related to both the substantive and procedural law of confessions. The 7-0 opinion, written by Justice Wallace, reverses the Appellate Division decision below.

The facts of the case involve a Newark murder investigation during which the defendant was arrested and questioned by two teams of detectives for an extended period of time, given little food or opportunity to rest. During the interrogation, the defendant was without clothing, save for a hospital-type gown. In addition to a murder confession, detectives also obtained a series of confessions related to a string of bank robberies.

The Supreme Court ruled that the totality of the circumstances test is to be used when deciding whether a confession has been given freely, knowingly and voluntarily. Among the relevant factors in this case were:

Age
Education (some college)
Intelligence Level
Miranda Warnings
Previous encounters with law enforcement
Familiarity with Criminal Justice System
Length of interrogation
Nature of the questioning
Time between Miranda warnings and confession
Use of non-coercive psychological techniques

Procedurally, the Court prohibited the defendant from challenging the voluntariness of his confessions related to the robberies because he had plead guilty to these offenses unconditionally. A plea of guilty acts as a bar to raising constitutional challenges with three narrow exceptions:

1. Denial of a motion to suppress physical evidence;
2. Denial of admittance into PTI
3. Any other denial of a pre-trial motion that is reserved through the use of a conditional plea of guilty.

Download a copy of State v. Knight

(c) Muni-mail 2005 – All Rights Reserved

Category: Muni-Mail Archive