Monthly Archives: August 2005

“Off-the-record” Confession Not Admissible – State v. Fletcher

This morning’s Appellate Division decision in State v. Fletcher reaffirms the general rule of law that a promise by the police to hold an “off-the-record” conversation with a criminal suspect can vitiate the voluntariness of a later confession under the totality of the circumstances test.

Download a copy of State v. Fletcher

Category: Muni-Mail Archive

Bicycle Helmets Now Required for Children under 17 Years Old

Today, the Acting-Governor signed a series of bills that amends the provisions of NJSA 39:4-10.1 et seq. in such a way as to require children under the age of 17 to wear a helmet while riding a bicycle or using roller skates or skateboards. The previously, New Jersey law required helmets for children under the age of 14. The amended statute goes into effect in the spring of 2006.

The statutes as amended are reproduced below.

1. Section 1 of P.L.1991, c.465 (C.39:4-10.1) is amended to read as follows:

1. a. A person under 17 years of age shall not operate, or ride upon a bicycle as a passenger, unless that person is wearing a properly fitted and fastened bicycle helmet which meets the standards of the American National Standards Institute (ANSI Z90.4 bicycle helmet standard) or the Snell Memorial Foundation’s 1990 Standard for Protective Headgear for Use in Bicycling. This requirement shall apply to a person who rides upon a bicycle while in a restraining seat which is attached to the bicycle or in a trailer towed by the bicycle.

As used in this act, “bicycle” means a vehicle with two wheels propelled solely by human power and having pedals, handle bars and a saddle-like seat. The term shall include a bicycle for two or more persons having seats and corresponding sets of pedals arranged in tandem.

b. The director shall publish a list of bicycle helmets which meet the standards described in subsection a. of this section and shall provide for its distribution in as many locations frequented by the public as the director deems appropriate and practicable.

c. The requirement in subsection a. of this section shall apply at all times while a bicycle is being operated on any property open to the public or used by the public for pedestrian and vehicular purposes; however, a municipality may by ordinance exempt from this requirement a person operating or riding on a bicycle as a passenger when the bicycle is operated:

(1) on a road or highway closed to motor vehicle traffic and limited to pedestrian or bicycle use at all times or only during specified periods of time during which bicycles may be operated; or

(2) exclusively on a trail, route, course, boardwalk, path or other area which is set aside for the use of bicycles or for the use of pedestrians and bicycle operation is not otherwise prohibited. However, an exemption may not be granted under this paragraph for any portion of a trail, route, course, boardwalk, path or other area which is immediately adjacent to a road or highway used by motor vehicle traffic and which does not contain a barrier of sufficient height and rigidity to prevent the inadvertent or deliberate entry of a bicycle operator onto the road or highway.

d. An ordinance enacted pursuant to subsection c. of this section shall specify those roads, highways, trails, routes, courses, boardwalks, paths or areas within the municipality where helmets are not required during the operation of a bicycle.

e. When a bicycle is being operated in an area where bicycle helmets are not required, the operator or a passenger, except a passenger in a restraining seat or trailer, shall dismount from the bicycle and walk whenever it is necessary to enter a crosswalk or to cross a road or highway upon which motor vehicle traffic is permitted.

(cf: P.L.1997, c.411, s.10)

2. Section 3 of P.L.1991, c. 465 (C.39:4-10.3) is amended to read as follows:

3. a. A person regularly engaged in the business of selling or renting bicycles shall post a sign at the point where the sale or rental transaction is completed stating: “STATE LAW REQUIRES A BICYCLE RIDER UNDER 17 YEARS OF AGE TO WEAR A HELMET.” The size of the sign shall be at a minimum 15 inches in length and 8 inches in width. This notification requirement shall not apply to a seller when a bicycle is sold through the use of a catalog or brochure and the purchase and payment are made by mail, telephone or another telecommunications or electronic method.

A person who fails to post a sign required by this subsection within 60 days after the effective date of this amendatory act (P.L.1995, c.177) shall be subject to a penalty not to exceed $25 a day for each day the business is open to the public and the sign is not posted. The enforcement of this subsection shall be vested in the Director of the Division of Consumer Affairs of the Department of Law and Public Safety, the inspectors appointed under his authority, and the police or peace officers of, or inspectors duly appointed for this purpose, by any municipality or county or by the State. Jurisdiction of proceedings to collect the penalties prescribed by this act is vested in the Superior Court and the municipal court in any municipality where the defendant may be apprehended or where he may reside. Process shall be either a summons or warrant and shall be executed in a summary manner pursuant to “the penalty enforcement law” (N.J.S.2A:58-1 et seq.).

b. A person regularly engaged in the business of renting bicycles shall provide a helmet to a person under 17 years of age who will operate the bicycle in an area where a helmet is required, if the person does not already have a helmet in his possession. A fee may be charged for the helmet rental.

c. A person regularly engaged in the business of selling or renting bicycles who complies with the applicable requirements of this section shall not be liable in a civil action for damages for any physical injury sustained by a bicycle operator or passenger who is under the age of 17 years as a result of the operator’s or passenger’s failure to wear a helmet or to wear a properly fitted or fastened helmet in violation of the requirements of this act.

d. Within 60 days after the effective date of this amendatory act (P.L.1995, c.177), the Division of Consumer Affairs in the Department of Law and Public Safety shall make a reasonable effort to notify any person who is regularly engaged in the business of selling or renting bicycles of the requirements of this section. The responsibility of a person under this section shall not be abrogated or diminished in any manner if the person fails to receive or become aware of a notice from the division.

(cf: P.L.1995, c.177, s.1)

3. Section 1 of P.L.1997, c.411 (C.39:4-10.5) is amended to read as follows:

1. a. As used in this act:

“Director” means the Director of Consumer Affairs in the Department of Law and Public Safety.

“Roller skates” means a pair of devices worn on the feet with a set of wheels attached, regardless of the number or placement of those wheels, and used to glide or propel the user over the ground.

b. A person under 17 years of age shall not operate any roller skates or skateboard unless that person is wearing a properly fitted and fastened helmet which meets the standards of the American National Standards Institute (ANSI Z90.4 bicycle helmet standard), the Snell Memorial Foundation’s 1990 Standard for Protective Headgear for Use in Bicycling, the American Society for Testing and Materials (ASTM) standard or other such standard, as appropriate.

c. The requirement in subsection b. of this section shall apply at all times while a person subject to the provisions of this act is operating roller skates or skateboarding on any property open to the public or used by the public for roller skating or skateboarding.

(cf: P.L.1997, c.411, s.1)

4. Section 5 of P.L.1997, c.411 (C.39:4-10.9) is amended to read as follows:

5. a. A person, firm, corporation or other legal entity regularly engaged in the business of selling or renting roller skates or skateboards shall post a sign at the point where the sale or rental transaction is completed stating: “STATE LAW REQUIRES A PERSON UNDER 17 YEARS OF AGE TO WEAR A HELMET WHEN ROLLER SKATING OR SKATEBOARDING.” The size of the sign shall be at a minimum 15 inches in length and 8 inches in width. This notification requirement shall not apply to a seller when roller skates are sold through the use of a mail order catalog or brochure where the purchase and payment are made by mail, telephone or another telecommunications or electronic method.

b. A person, firm, corporation or other legal entity who fails to post the sign required by subsection a. of this section shall be subject to a penalty not to exceed $25 a day for each day the business is open to the public and the sign is not posted. The enforcement of this subsection shall be vested in the director, the inspectors appointed under his authority and the police or peace officers of, or inspectors duly appointed for this purpose by, any municipality or county or the State. Jurisdiction of proceedings to collect the penalties prescribed by this act is vested in the Superior Court and the municipal court in any municipality where the defendant resides. Process shall be either a summons or warrant and shall be executed in a summary manner pursuant to “the penalty enforcement law” (N.J.S.2A:58-1 et seq.).

c. A person, firm, corporation or other legal entity regularly engaged in the business of renting roller skates or skateboards shall make available an approved helmet to a person under 17 years of age who rents the roller skates or skateboards for use in an area where a helmet is required, if the person does not already have a helmet in his possession. A fee may be charged for the helmet rental.

d. A person, firm, corporation or other legal entity regularly engaged in the business of selling or renting roller skates or skateboards who complies with the applicable requirements of this section shall not be liable in a civil action for damages for any physical injury sustained by a user of roller skates or a skateboard who is under the age of `17 years as a result of that person’s failure to wear a helmet in accordance with the provisions of this act.

e. Sixty days before the effective date of this act, the Division of Consumer Affairs in the Department of Law and Public Safety shall make a reasonable effort to notify any person, firm, corporation or other legal entity who is regularly engaged in the business of selling or renting roller skates or skateboards of the requirements of this section. The responsibility of a person, firm, corporation or other legal entity under this section shall not be abrogated or diminished in any manner if the person fails to receive or become aware of a notice from the division.

(cf: P.L.1997, c.411, s.5)

5. This act shall take effect on the first day of the seventh month after enactment.

STATEMENT

Under current law, minors under 14 years of age must wear a helmet when operating or riding on a bicycle, roller skate, or skateboard. This bill would raise the age of that requirement to include all individuals under 17 years.

The bill also includes technical changes, reflecting the higher age, to the sections of law which:

(1) require businesses that rent or sell bicycles, roller skates, or skateboards to post signs regarding the helmet laws; and

(2) limit the civil liability of those businesses.

Category: Muni-Mail Archive

Amendment Bans Smoking in College Dormitories

The Acting Governor today signed legislation to prohibit smoking in public and private college and university dormitories. This statute makes New Jersey the first state in the nation to completely ban this type of conduct. The statute will be effected as a result of a one sentence amendment to NJSA 26:3D-17.

Violation of this statute are handled in municipal court and subject the offender to a civil penalty of up to $100.

A copy of the new statute (with new portion in bold) and the penalty provision follows.

(NJSA 26:3D-17 is amended to read as follows:

a. The appropriate governing body, board or individual responsible for or who has control of the administration of a school, college, university, or professional training school, either public or private, except the board of education of a school district, shall make and enforce suitable regulations controlling the smoking of tobacco on their premises, except in those areas within the premises wherein smoking is prohibited by municipal ordinance under authority of R.S.40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire. The governing body, board or individual may, but need not, designate certain areas within the premises as areas in which smoking is permitted. Smoking in classrooms, lecture halls and auditoriums shall be prohibited except as part of a classroom instruction or a theatrical production. Smoking shall be prohibited in any portion of a building used as a student dormitory that is owned and operated or otherwise utilized by a school or institution of higher education.

b. The board of education of each school district shall make and enforce regulations to prohibit the smoking of tobacco anywhere in its buildings or on school grounds, except as part of a classroom instruction or a theatrical production.

26:3D-20. Violations, fines, penalties

6. a. The person responsible for administration of the school, college, university, or professional training school or any other person having control of such premises or any agent thereof or a police officer or other public servant engaged in executing or enforcing this act may order any person smoking in violation of this act to comply with the provisions of this act. Thereupon any such person who smokes on such premises in violation of this act is subject to a fine not to exceed $100.

b. The State Department of Health and Senior Services or the local board of health or such board, body or officers exercising the functions of the local board of health according to law, upon written complaint and having reason to suspect that any school, college, university or professional training school is or may be in violation of the provisions of this act shall, by written notification, advise the person responsible for the administration of the school, college, university or professional training school or other person having control of the premises accordingly and order appropriate action to be taken. Thereupon, any person receiving such notice who knowingly fails or refuses to comply with the order is subject to a fine not to exceed $25 for the first offense and not to exceed $100 for the second offense and not to exceed $200 for each offense thereafter. In addition to the penalty provided herein, the court may order immediate compliance with the provisions of this act. Notwithstanding the provisions of this subsection, no person shall be liable for a fine if the person has taken reasonable steps to enforce the prohibition on smoking in school buildings or on school grounds.

c. Any penalty recovered under the provisions of this act shall be recovered by and in the name of the Commissioner of Health and Senior Services of the State of New Jersey or by and in the name of the local board of health. When the plaintiff is the Commissioner of Health and Senior Services, the penalty recovered shall be paid by the commissioner into the treasury of the State. When the plaintiff is a local board of health, the penalty recovered shall be paid by the local board into the treasury of the municipality where the violation occurred.

d. Every municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of any provision of this act, if the violation has occurred within the territorial jurisdiction of the court. The proceedings shall be summary and in accordance with “The Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). Process shall be in the nature of a summons or warrant and shall issue only at the suit of the Commissioner of Health and Senior Services of the State of New Jersey, or the local board of health, as the case may be, as plaintiff.

Category: Muni-Mail Archive

Needle Exchange Ordinance Void – State v. Atlantic City

The Appellate Division of Superior Court released a ruling a few minutes ago that held that an Atlantic City ordinance creating a needle exchange program is void as pre-empted by the Code of Criminal Justice, specifically those statutes in Chapter 36 dealing with possession of drug paraphernalia.

Download a copy of State v. Atlantic City

Category: Muni-Mail Archive

Unwitnessed Controlled Buy Supports PC – State v. Keyes

State v. Keyes is a New Jersey Supreme Court case that was published this morning. In Keyes, the Justices review the factors that will support a finding of probable cause when the information available to the police comes from a confidential informant.

In this case, the informant had provided reliable information in the past that had resulted in arrests for drug offenses. He also agreed to make a controlled buy for the police. However, the police were not able to observe the controlled buy as it occurred.

The local municipal court issued a search warrant based upon an affidavit that included information related to the informant’s past reliability, the unwitnessed controlled buy and other factors.

The Supreme Court ruled that, based upon the totality of the circumstances, there was ample evidence in the search warrant application for the municipal court judge to have found probable cause to issue the warrant. The Justices also noted that a controlled buy and one other piece of corroborating evidence will usually be enough evidence to establish probable cause.

Download a copy of State v. Keyes

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Category: Muni-Mail Archive

Presumptive Terms Eliminated – State v. Natale

This morning’s New Jersey Supreme Court decision in State v. Natale eliminates the use of presumptive terms for sentences imposed under the New Jersey Code of Criminal Justice. The justices concluded that the imposition of a sentence in excess of the statutory presumptive term violates the United States Constitution as interpreted by the U.S. Supreme Court in Apprendi, Blakely and Booker.

In the future, judges will sentence within the statutory range provided for the crime based upon aggravating and mitigating factors without regard to the presumptive term.

Because this represents a new rule of law, the justices have ordered that it be given so-called “pipeline retro-activity” only.

Download a copy of State v. Natale

Category: Muni-Mail Archive

DWI MV Stop NOT Objectively Reasonable – State v. Puzio

This morning’s Appellate Division decision in State v. Puzio involves a police officer who honestly believed that a vehicle he had been following was in violation of the commercial plates motor vehicle statute. The officer, in good faith, stopped the vehicle and arrested the operator for drunk driving.

Despite his good faith belief and intentions, the Appellate Division held that the officer’s interpretation of the statute was wrong as a matter of law and accordingly there was no objectively reasonable basis for stopping the defendant’s vehicle. The panel also re-affirmed New Jersey’s commitment to NOT entertaining a “good-faith” exception to the warrant requirement.

Please contrast this decision with the July 22, 2005 opinion in State v. Pitcher where the Appellate Division rejected a similar defense argument where the police officer relied upon incorrect DMV data in effecting a motor vehicle stop.

Download a copy of State v. Puzio

Category: Muni-Mail Archive

DMV Admin. Susp for DWI Not Double Jeopardy – State v. Pepe

Today’s decision by the Appellate Division in State v. Pepe stands for two legal propositions. In this case, the defendant was convicted of DWI in New York. His out-of-state violation was reported to New Jersey DMV and about 4 months after receiving the report of the conviction, the New Jersey DMV proposed an administrative 6-month license loss. (Please note, although the opinion does not discuss this issue, the defendant was also, no doubt, subject to a $1000 per year surcharge for 3 years.)

The panel held that the 4-month delay in proposing a license suspension for the defendant by the DMV was “unfortunate” but did not raise an issue of substantial prejudice. Moreover, the panel ruled that the administrative suspension in New Jersey for DWI based upon a conviction in another state did not constitute double jeopardy.

Download a copy of State v. Pepe

Category: Muni-Mail Archive