Earlier today, the New Jersey Supreme Court released the latest supplemental report prepared by Special Master Michael Patrick King, P.J.A.D. (ret.). Judge King’s report followed 10 days of hearings and two days of oral argument. The hearings were conducted at the order of the New Jersey Supreme Court so as to permit the defendants in the landmark DWI case, State v. Chun, to challenge the reliability of the software that runs the Alcotest 7110 breath-testing instrument. Among Judge King’s findings and recommendations are the following:
1. The Alcotest 7110 is scientifically reliable as a breath testing instrument as to both hardware and software, subject to certain conditions;
2. Alcotest 7110 instruments in use should be subject to re-certification procedures every six months instead of yearly, as is now the practice;
3. As a result of certain mistakes in the software, evidence from a third breath test should not be utilized until the errors have been corrected;
4. An illegal operations trap in the software should be programmed to be activated;
5. If any of the categories on the Alcohol Influence Report are incomplete in any respect or missing, no portion of the report may be used in evidence. In practice this will mean that evidence of a blood alcohol level of .08% or greater would not be admissible at trial in those case where the report is incomplete or missing data;
6. Foundational documents should be provided to the defense as discovery in all cases, regardless of whether the defendant is being represented by an attorney;
7. Written notice of any future software changes should be forwarded to Jeffrey E. Gold, Esq., counsel for amicus the New Jersey State Bar Association.
The Supreme Court has invited briefs from the parties and will hold oral argument at 10:00 am on January 7, 2008.
Download a copy of Judge King’s supplementary report.
The Supreme Court has approved a Court Rule amendment that will allow attorneys who seek guidance on ethics issues to receive free advice.
Previously, attorneys were required to call an expensive pay-for-service 1-900 number. All inquiries were addressed by the secretary to the Supreme Court Advisory Committee on Professional Ethics. Now, however, based upon an amendment to Rule Rule 1:19-9(a), attorneys may call the secretary directly for free, rather than using the 1-900 number. Callers to the free ethics hotline may receive general information and research assistance on legal ethics, solicitation and attorney advertising. However, the hotline staff does not provide legal advice or advisory opinions, such as those issued by an Advisory Committee.
The phone number for the free attorney ethics hotline is 609-292-0694.
A Notice to the Bar announcing this free service follows:
NOTICE TO THE BAR
Advisory Committee on Professional Ethics
“Ethics Hotline” — New Telephone Number
The Advisory Committee on Professional Ethics operates a telephone ethics hotline to provide general information and research assistance to members in good standing of the New Jersey bar with respect to issues of legal ethics within its jurisdiction, and issues of advertising and solicitation within the jurisdiction of the Committee on Attorney Advertising, but not legal advice or advisory opinions. In accordance with the Supreme Court’s recent amendment to Rule 1:19-9(a), please be advised that the telephone number for the ethics hotline has changed from a 900 number to the regular telephone number for the Secretary to the Advisory Committee on Professional Ethics and the Committee on Attorney Advertising. That telephone number is: (609) 292-0694.
Earlier today, the Governor signed into law an amendment to NJSA 39:4-97.3 which makes the use of a cell phone by a person who is operating a motor vehicle a primary offense. This means police may effect a motor vehicle stop upon viewing this violation. The amended statute also makes it an offense to “text message” while driving. Finally, the amended statute provides that when the cell phone law is utilized as part of a plea and sentence agreement in municipal court, the same penalties and $250 surcharge that is required for unsafe operation of a motor vehicle under NJSA 39:4-97.2 shall apply. Moreover, a conviction for the cell phone offense will count as a prior conviction of unsafe operation of a motor vehicle. The amended law will go into effect on April 1, 2008.
A copy of the amended statute follows. The amended language is underlined.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.2003, c.310 (C.39:4-97.3) is amended to read as follows:
1. a. The use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free, provided that its placement does not interfere with the operation of federally required safety equipment and the operator exercises a high degree of caution in the operation of the motor vehicle. For the purposes of this section, an “electronic communication device” shall not include an amateur radio.
b. The operator of a motor vehicle may use a hand-held wireless telephone while driving with one hand on the steering wheel only if:
(1) The operator has reason to fear for his life or safety, or believes that a criminal act may be perpetrated against himself or another person; or
(2) The operator is using the telephone to report to appropriate authorities a fire, a traffic accident, a serious road hazard or medical or hazardous materials emergency, or to report the operator of another motor vehicle who is driving in a reckless, careless or otherwise unsafe manner or who appears to be driving under the influence of alcohol or drugs. A hand-held wireless telephone user’s telephone records or the testimony or written statements from appropriate authorities receiving such calls shall be deemed sufficient evidence of the existence of all lawful calls made under this paragraph.
As used in this act, “hands-free wireless telephone” means a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a conversation without the use of either hand; provided, however, this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of the telephone.
“Use” of a wireless telephone or electronic communication device shall include, but not be limited to, talking or listening to another person on the telephone , text messaging, or sending an electronic message via the wireless telephone or electronic communication device.
c. [Enforcement of this act by State or local law enforcement officers shall be accomplished only as a secondary action when the operator of a motor vehicle has been detained for a violation of Title 39 of the Revised Statutes or another offense] Deleted by amendment, P.L. , c. (2[now]2 pending before the Legislature as this bill).
d. A person who violates this section shall be fined $100.
e. No motor vehicle points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) shall be assessed for this offense.
f. The Chief Administrator of the New Jersey Motor Vehicle Commission shall develop and undertake a program to notify and inform the public as to the provisions of this act.
g. Whenever this section is used as an alternative offense in a plea agreement to any other offense in Title 39 of the Revised Statutes that would result in the assessment of motor vehicle points, the penalty shall be the same as the penalty for a violation of section 1 of P.L.2000, c.75 (C.39:4-97.2), including the surcharge imposed pursuant to subsection f. of that section, and a conviction under this section shall be considered a conviction under section 1 of P.L.2000, c.75 (C.39:4-97.2) for the purpose of determining subsequent enhanced penalties under that section.
(cf: P.L.2003, c.310, s.1)
2. Section 3 of P.L.2003, c.310 (C.39:4-97.5) is amended to read as follows:
3. This act supersedes and preempts all ordinances of any county or municipality with regard to the use of a wireless telephone or electronic communication device by an operator of a motor vehicle.
3. This act shall take effect on the first day of the fourth month following enactment.