Monthly Archives: February 2007
The Administrative Office of the Courts has released the Report of the Supreme Court Committee on Municipal Courts which contains proposed amendments to the Part VII Rules. Those that are adopted by the Court will be effective with the start of the new court year in September. Among the proposed changes to the municipal court rules are the following:
1. An addition to the plea bargaining guidelines that would permit the plea bargaining of DWI school-zone charges under certain circumstances.
2. The elimination of private prosecutions in municipal court. All prosecutions would be conducted by a public prosecutor.
3. Removal of time limitations for the filing of Laurick PCR applications and formalized filing requirement for this type of motion.
4. A new procedure which would permit the filing of guilty plea by mail in criminal cases.
5. Revised procedures for submitting not guilty pleas or guilty pleas by mail in traffic cases.
6. A grant of authority for a municipal court judge to order the stay of a jail term imposed as part of a sentence.
7. An increase in the time to petition the court for a new trial to 20-days.
8. An expansion of the municipal appeal procedures that will authorize the appeal of the denial of a motion to suppress evidence following the granting of a conditional discharge.
9. Elimination of the ability of anyone to appeal the dismissal of a municipal court complaint on a pre-trial basis except for a publicly appointed prosecutor.
10. Elimination of the municipal court’s authority to conduct probable cause hearings in indictable matters.
The Supreme Court invites written comments on the proposed amendments to the Part VII Rules. Comments should be sent to:
Philip S. Carchman, J.A.D.
Acting Administrative Director of the Courts
Hughes Justice Complex; P.O. Box 037
Trenton, New Jersey 08625-0037
Comments may also be submitted via Internet e-mail to the following address: Comments.Mailbox@judiciary.state.nj.us.
The Justices will not consider anonymous comments, although the confidentiality of the person making the commentary will be maintained upon request.
Download the committee’s report.
In order to purchase automobile insurance in the voluntary market in New Jersey, one must be an “eligible person.” N.J.A.C. 11:3-34.4 sets forth the definition of an eligible person. One of the events that will transform an eligible person into an ineligible person is the accumulation within a three-year period of seven or more insurance eligibility points. Insurance eligibility points are assigned by the insurance companies in much the same manner as MVC penalty points for moving violations. In addition, insurance eligibility points can also be assessed for other events, such as being involved in an “at fault” accident, which, when coupled with damages of $1000 or more, will result in the assessment of five insurance points. (See generally NJAC 11:3-34(a)(8)) As can be seen from the foregoing, an “at fault” accident, coupled with a two-point careless driving ticket will result in the assessment of seven points and the loss of the ability to purchase insurance in the voluntary market.
In today’s Appellate Division decision, Reilly v. AAA Mid-Atlantic Insurance, the plaintiff challenged the assessment of five insurance points against him by his insurance company as a result of a single car accident. The plaintiff claimed that although he was involved in the accident, its occurrence was due to bad weather and not any negligent driving on his part. However, in ruling in favor of the Commissioner of the Department of Banking and Insurance, the Court held that traditional notions of negligence are not the standard by which to judge fault in a single-car accident attributable to weather. Rather, fault in a single-car accident is based upon insurance cost and risk. In essence, a single-car accident attributable to weather will always result in an assessment of fault for the insured driver.
Download a copy of Reilly v. AAA Mid-Atlantic Insurance.
The long anticipated findings of Judge King, P.J.A.D. (ret.) were released this morning and are attached to this muni-mail. In his report to the Supreme Court, Judge King finds that the Alcotest is a generally reliable scientific instrument for determining the blood-alcohol concentration of living human beings. His report will be the foundation for the factual findings and conclusions of law when the Supreme Court ultimately rules on the scientific reliability of this instrument later this year. In his report, Judge King also made numerous procedural recommendations designed to enhance the accuracy of the instrument’s test results and the fairness of its use to DWI defendants. Among those recommendations were:
1. The use of a breath temperature sensor by the state.
2. A downward adjustment of 6.58% downward adjustment to all BAC readings until the breath temperature sensor is put in use.
3. Communication of data obtained from alcotest units to a central database on a periodic basis.
4. A minimum air sample of 1.2 liters for women over the age of 60 and a general 1.5 liters of air requirement for the remainder of the population.
5. A listing of the foundational documents required for admissibility of the Alcotest results, said documents to be admitted as business records.
6. A tolerance range among the 4 readings produced by 2 tests that would be “tightened” to a range of 10% of the average of the 4 readings.
Following the publication of this report, the attorneys involved in the case will have approximately two weeks to submit their briefs to the Supreme Court. A date for oral argument should follow.
Download a copy of the report.
One of the conditions of admissibility for the results of the analysis of a blood sample in a drunk driving case is that the sample was taken from the body of the defendant in a medically acceptable manner. Under N.J.S.A. 2A:62A-11, a person who draws a blood sample at the request of the police in a drunk driving case need not appear in court to personally testify at trial. Rather, that person may submit a certificate under oath, indicating that the sample was properly taken.
Today’s decision by the Appellate Division in State v. Renshaw invalidates this statutory procedure based upon confrontation clause considerations required under Crawford v. Washington, 541 U.S. 36 (2004). The Appellate Division ruled that the declarations made in the certificate are “testimonial” within the meaning of Crawford, and as such, are not admissible at trial in the absence of consent to the certificate’s use by the defendant. Based upon the foregoing, it appears that medical personnel who extract blood samples at the request of the police will be required to personally appear at trial and be subject to cross examination in future DWI blood cases.
Download a copy of State v. Renshaw.
Yesterday’s Appellate Division opinion in State v. Amodio is the first time a New Jersey court of appellate authority has had the opportunity to review the limitations placed on police when they respond to the scene of a residential fire. In Amodio, the police went to the scene of a major fire at the defendant’s residence. The police found the defendant badly burned on the front lawn of the property. The defendant’s clothing was cut from his body by emergency medical personnel so he could be treated for his burns. The police immediately seized the clothes. Once the fire was extinguished, two fire inspectors examined in the inside of the home, looking for the cause of the blaze. During their search, they uncovered the bodies of an adult female and a child. In the area near the bodies, the inspectors recovered evidence that tended to show that the female had been killed by blunt force trauma. Their search also yielded evidence that an accelerant had been used to enhance the effects of the fire. The police did not seek a formal search warrant for the residence until the following morning when additional evidence of arson and murder was recovered.
The Appellate Division ruled in conformity with two United States Supreme Court decisions that police who investigate a fire have the right to remain on the scene and search for its cause for a reasonable period of time without obtaining a search warrant. Apart from putting out fires, fire fighters and police have a duty to determine the cause of fires. In making these determinations, they may conduct searches and seize any incriminating evidence that they locate in plain view. In this case, the police were not required to obtain a search warrant when the bodies were discovered because the investigation into the cause of the fire had not been completed.
The Court also ruled that the seizure of the defendant’s clothing without a search warrant was proper as well. The exigent circumstances surrounding the emergency medical treatment of the defendant, coupled with the possibility that the clothing might contain incriminating trace evidence that would be useful to the police justified the seizure without a warrant.
Download a copy of State v. Amodio.
In this morning’s Appellate Division decision in State v. Hemphill, the Court ruled that credit for confine (also known as jail credits) are mandatory when a defendant is detained on a charge for which he is later convicted and given a custodial sentence. This practice is required in the Superior Court under Rule 3:21-8 and in the municipal court under the identically-worded Rule 7:9-3. (The defendant shall receive credit on the term of custodial sentence for any time served in custody, either in jail or in a state hospital, between the arrest and the imposition of a sentence.)
In Hemphill, the Court held that the credit for confinement would apply even if the pre-conviction detention takes place in another country. The defendant in Hemphill had absconded following an indictment for sex crimes against a small child. Many years later, he was arrested in Europe and held for six-months on a rendition detainer. The Appellate Division ruled that if the time spent in detention in Europe was as a result of the rendition detainer for the New Jersey indictment, the defendant would be entitle to jail credit for the time spent in detention overseas.
Download a copy of State v. Hemphill.
In State v. Goodmann, the defendant got involved with a dispute over the cost of developing some film he had taken to a drug store. The defendant refused to pay the disputed price, took all the pictures and left the store without paying. He was later charged and convicted of shoplifting. This conviction was reversed today by the Appellate Division. The Court ruled that the photographs in question were not merchandise within the meaning of the shoplifting statute and the service provided for developing the photos was unrelated to the sale of merchandise.
Please note an important footnote in the case where the Appellate Division criticizes the municipal court for not allowing the defendant to open the record and move an important document into evidence. The document had been previously identified and authenticated but through inadvertence, it was not moved into evidence at the end of the defense case.
Download a copy of State v. Goodmann.
Under current law, New Jersey drivers may get a two-point credit against their accumulated MVC penalty points by successfully completing an approved driver improvement school course. This two-point credit is available once every 5 years. There are also substantial (and mandatory) insurance discounts that are available to good drivers who complete the course. On occasion, municipal court judges will want young motorists to complete such a course before the judge will accept a plea bargain to an otherwise serious traffic offense.
Now,under a newly proposed regulation, the approved defensive driving course could be completed online, thereby eliminating the current practice of personally attending the class at a facility.
A copy of the Motor Vehicle Commission’s plan to change its regulations in the New Jersey Administrative Code follows:
RELEASE: January 24, 2007
Proposed Amendments and New Rules Implementing
Online Defensive Driving Schools
The Motor Vehicle Commission has proposed amendments and new rules relating to the addition of an online defensive driving school option to the already existing defensive driving school regulatory scheme. The Commission’s proposed rulemaking implements the public policy as noted in N.J.S.A. 17:33B-45, N.J.S.A. 39:5-30.9 and N.J.A.C. 11:3-24.3 pertaining to insurance rate reductions and reduction of motor vehicle violation points for drivers completing defensive driving classes.
The proposed amendments to N.J.A.C. 13:21-24 include requirements for course providers to offer the same curriculum, quality and length of course as a traditional in-classroom course. Additionally, they will need to satisfy the requirements of the Chief Administrator proving that the course is secure and that the individual who completes the course is the individual that receives credit for the course. Course providers will further be required to administer a proficiency examination with a passage rate of at least 80% in order for a student motorist to successfully complete the course.
The Motor Vehicle Commission’s regulatory proposal was published on January 16th, 2007. The public will have 60 days from the date of publication to submit comments regarding the Motor Vehicle Commission’s regulatory proposal. Comments should be directed to Steven E. Robertson, Director, Legal, Legislative and Regulatory Affairs, Motor Vehicle Commission, 225 East State Street, P.O. Box 162, Trenton, NJ 08666-0162.