Monthly Archives: January 2008

One Passenger Owes no Duty to Another in DWI Crash – Champion v. Dunfee

In today’s ruling from the Appellate Division in Champion v. Dunfee, the Court held that a mere passenger in a motor vehicle who knows that the driver may be intoxicated has no duty to warn other passengers in the vehicle of the potential danger. An exception to this rule may exist when there is a special relationship between the intoxicated driver and the passenger with knowledge of the intoxication, such as employer/employee or guardian/ward.

In the Champion case, the plaintiff was severely injured while riding as a passenger in a vehicle driver by an intoxicated person. The defendant passenger knew or should have known about the intoxicated condition of the driver (her boyfriend). However, she took no steps to either warn the other passenger or protect him from the danger. The Appellate Division ruled that New Jersey law does not impose an obligation upon mere passengers to warn other passengers about potential danger from the intoxicated driver of their car.

Download a copy of Champion v. Dunfee.

Category: Muni-Mail Archive

Judges, Not Police, Must Make P/C Decisions for Search Warrants – State v. Marshall

In today’s decision in State v. Marshall, the Appellate Division held that the decision as to the existence of probable cause sufficient to support the issuance of a search warrant is exclusively vested in judges and cannot be delegated to police. In Marshall, a judge authorized the police to determine which of two apartment units probably contained an illegal drug stash and to search that apartment. The Appellate Division ruled that permitting such an exercise of discretion by the police illegally transferred to probable cause determination from a neutral and detached magistrate to the police.

Download a copy of State v. Marshall.

Category: Muni-Mail Archive

Judges May Credit $200 on Unpaid Traffic Fines for Community Service

In an amendment signed into law on January 13, 2008, the legislature has provided municipal court judges with the authority to waive as much as $200 in unpaid traffic fines for indigent defendants. In exchange for the waiver, the indigent defendant would be required to perform community service, participate in any other program authorized by law or satisfy any other aspect of sentence. The $200 waiver is unavailable to indigent defendants who have been convicted of drunk driving or refusing to submit to a breath test. The amended statute reads as follows:

Indigent time Payments

1. Section 1 of P.L.1981, c.365 (C.39:4-203.1) is amended to read as follows:

1. Any defendant convicted of a traffic offense pursuant to Title 39 of the Revised Statutes or a parking offense, shall, upon a satisfactory showing of a condition of indigency or participation in a government-based income maintenance program, be permitted by the court to pay the fine in installments. The court shall set the amount and frequency of each installment. In addition, the court may waive an unpaid portion, up to $200, of any court-imposed time-payment order, as a result of a conviction for a motor vehicle traffic violation or a parking offense, except for a violation of R.S.39:4-50 or section 2 of P.L.1981, c.512, (C.39:4-50.4a), for a defendant who is indigent or is participating in a government-based income maintenance program and who has demonstrated an inability to comply with the time-payment order , and in lieu of the remaining unpaid amount , require the defendant to perform community service for a period of time to be determined by the court or participate in any program authorized by law, or satisfy any other aspect of a sentence imposed. For the purposes of this section, the guideline for the court to determine indigency is an income up to 250 percent of the poverty level, as defined in section 4 of P.L.2005, c.156 (C.30:4J-11).

(cf: P.L.1999, c.397, s.2)

Category: Muni-Mail Archive

‘Last Drink’ DWI Data to Target ‘ Problem’ Bars- AG Directive 2007-02

Last July, the Attorney General promulgated Directive 2007-02 which requires that law enforcement officers obtain information from people who have been arrested for drunk driving that relates to the commercial establishment where they had their last drinks. Following a waiver of the right to remain silent, the law enforcement officer is now required to question the DWI defendant on what kinds of alcoholic drinks he has had, how many and where. Evidence that the defendant consumed his drinks in a commercial establishment must be recorded and forwarded to other New Jersey enforcement agencies for analysis. The information gleaned from these data can be used by law enforcement for the purpose of DWI enforcement associated with a particular commercial establishment. A copy of the Attorney General’s Directive 2007-02, which went into effect in October 2007 can be downloaded here.

Category: Muni-Mail Archive

Passed Out Drunk Behind the Wheel NOT Operation – State v. Mize (Unpublished)

Today’s UNPUBLISHED Appellate Division decision holding in State v. Mize provides an excellent review on all of the motor vehicle operation law in New Jersey as it has developed over the decades. In this particular case, the Appellate Division ruled that a person who was passed out drunk behind the wheel of a parked vehicle was not operating his motor vehicle for purposes of the drunk driving statute.

Download a copy of State v. Mize.

Category: Muni-Mail Archive

Failure to Comunicate With Client Not Ineffective Assistance – State v. Gaither

Friday’s Appellate Division holding in State v. Gaither stands for two important legal propositions. First, the failure of appellate counsel to communicate with his client does not constitute per se ineffective assistance of counsel requiring a new trial. Rather, a defendant who seeks a new trial on this basis must also show that he was prejudiced in that, but for the lack of communication, the result of the appeal likely would have been different.

The second point clarifies the proper limitations on the legal issues that may be raised on direct appeal. Previously, the New Jersey Supreme Court has ruled that an attorney who represents a petitioner on a post conviction application matter must raise all issues desired by his client, including those that the attorney believes are utterly irrelevant or without merit. In Gaither, the Appellate Division ruled that the same standard does not apply to attorneys on direct appeal. Accordingly, appellate attorneys should only advance arguments that are relevant and have some degree of legal merit based upon the professional opinion of the advocate as opposed to the desires of the client.

Download a copy of State v. Gaither.

Category: Muni-Mail Archive

Tort Claim Notice No Bar to Expungement – State v. JRS

In yesterday’s decision in State v. JRS, the Appellate Division held that the mere filing of a notice of tort claim does not constitute pending civil litigation that will bar an expungement. In the JRS case, the petitioner sought to expunge an arrest for a disorderly persons’ offense that had been dismissed in municipal court. Following the dismissal, the petitioner filed a notice of tort claim against the State Police. He thereafter sought and was granted an expungement. Following the expungement, he filed suit against the police.

The Somerset County Prosecutor moved before the Superior Court to vacate the expungement on the grounds that at the time of the filing, the petitioner had been involved in civil litigation with the State by virtue of the notice of tort claim. However, the Appellate Division held that the filing of the notice of tort claim does not constitute a civil action within the meaning of the expungement statute.

Download a copy of State v. JRS.

Category: Muni-Mail Archive

New Law Offers Relief on Unpaid DEDR Penalties

In an amendment signed into law on January 13, 2008, the legislature provided New Jersey judges with a procedure by which they can reduce the amount of a Drug Enforcement and Demand Reduction (DEDR) penalty by as much as one half in exchange for the performance of so-called “reformative service” by the defendant. Reformative service is broadly defined to include such activities as community service, work training, substance abuse counseling, education and the like. The opportunity to perform reformative service in lieu of paying the full DEDR penalty is not available to people who seek a conditional discharge.

Finally, the amended statute clarifies that a judge has the discretionary authority to impose only a single DEDR penalty in a case where the defendant has been convicted of multiple drug offenses. The amended statute reads as follows:

DEDR and Reformative Service

An Act concerning certain penalties and amending N.J.S.2C:35-15.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:35-15 is amended to read as follows:

2C:35-15. a. (1) In addition to any disposition authorized by this title, the provisions of section 24 of P.L.1982, c.77 (C.2A:4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, every person convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed for each such offense a penalty fixed at:

(a) $3,000.00 in the case of a crime of the first degree;

(b) $2,000.00 in the case of a crime of the second degree;

(c) $1,000.00 in the case of a crime of the third degree;

(d) $750.00 in the case of a crime of the fourth degree;

(e) $500.00 in the case of a disorderly persons or petty disorderly persons offense.

(2) A person being sentenced for more than one offense set forth in subsection a. of this section who is neither placed in supervisory treatment pursuant to this section nor ordered to perform reformative service pursuant to subsection f. of this section may, in the discretion of the court, be assessed a single penalty applicable to the highest degree offense for which the person is convicted or adjudicated delinquent, if the court finds that the defendant has established the following:

(a) the imposition of multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity; and

(b) the imposition of a single penalty would foster the defendant’s rehabilitation.

Every person placed in supervisory treatment pursuant to the provisions of N.J.S.2C:36A-1 or N.J.S.2C:43-12 for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed the penalty prescribed herein and applicable to the degree of the offense charged, except that the court shall not impose more than one such penalty regardless of the number of offenses charged. If the person is charged with more than one offense, the court shall impose as a condition of supervisory treatment the penalty applicable to the highest degree offense for which the person is charged.

All penalties provided for in this section shall be in addition to and not in lieu of any fine authorized by law or required to be imposed pursuant to the provisions of N.J.S.2C:35-12.

b. All penalties provided for in this section shall be collected as provided for collection of fines and restitutions in section 3 of P.L.1979, c.396 (C.2C:46-4), and shall be forwarded to the Department of the Treasury as provided in subsection c. of this section.

c. All moneys collected pursuant to this section shall be forwarded to the Department of the Treasury to be deposited in a nonlapsing revolving fund to be known as the “Drug Enforcement and Demand Reduction Fund.” Moneys in the fund shall be appropriated by the Legislature on an annual basis for the purposes of funding in the following order of priority: (1) the Alliance to Prevent Alcoholism and Drug Abuse and its administration by the Governor’s Council on Alcoholism and Drug Abuse; (2) the “Alcoholism and Drug Abuse Program for the Deaf, Hard of Hearing and Disabled” established pursuant to section 2 of P.L.1995, c.318 (C.26:2B-37); (3) the “Partnership for a Drug Free New Jersey,” the State affiliate of the “Partnership for a Drug Free America”; and (4) other alcohol and drug abuse programs.

Moneys appropriated for the purpose of funding the “Alcoholism and Drug Abuse Program for the Deaf, Hard of Hearing and Disabled” shall not be used to supplant moneys that are available to the Department of Health and Senior Services as of the effective date of P.L.1995, c.318 (C.26:2B-36 et al.), and that would otherwise have been made available to provide alcoholism and drug abuse services for the deaf, hard of hearing and disabled, nor shall the moneys be used for the administrative costs of the program.

d. (Deleted by amendment, P.L.1991, c.329).

e. The court may suspend the collection of a penalty imposed pursuant to this section; provided the person is ordered by the court to participate in a drug or alcohol rehabilitation program approved by the court; and further provided that the person agrees to pay for all or some portion of the costs associated with the rehabilitation program. In this case, the collection of a penalty imposed pursuant to this section shall be suspended during the person’s participation in the approved, court-ordered rehabilitation program. Upon successful completion of the program, as determined by the court upon the recommendation of the treatment provider, the person may apply to the court to reduce the penalty imposed pursuant to this section by any amount actually paid by the person for his participation in the program. The court shall not reduce the penalty pursuant to this subsection unless the person establishes to the satisfaction of the court that he has successfully completed the rehabilitation program. If the person’s participation is for any reason terminated before his successful completion of the rehabilitation program, collection of the entire penalty imposed pursuant to this section shall be enforced. Nothing in this section shall be deemed to affect or suspend any other criminal sanctions imposed pursuant to this chapter or chapter 36 of this title.

f. A person required to pay a penalty under this section may propose to the court and the prosecutor a plan to perform reformative service in lieu of payment of up to one-half of the penalty amount imposed under this section. The reformative service plan option shall not be available if the provisions of paragraph (2) of subsection a. of this section apply or if the person is placed in supervisory treatment pursuant to the provisions of N.J.S.2C:36A-1 or N.J.S.2C:43-12. For purposes of this section, “reformative service” shall include training, education or work, in which regular attendance and participation is required, supervised, and recorded, and which would assist in the defendant’s rehabilitation and reintegration. “Reformative service” shall include, but not be limited to, substance abuse treatment or services, other therapeutic treatment, educational or vocational services, employment training or services, family counseling, service to the community and volunteer work.

The court, in its discretion, shall determine whether to accept the plan, after considering the position of the prosecutor, the plan’s appropriateness and practicality, the defendant’s ability to pay and the effect of the proposed service on the defendant’s rehabilitation and reintegration into society. The court shall determine the amount of the credit that would be applied against the penalty upon successful completion of the reformative service, not to exceed one-half of the amount assessed. The court shall not apply the credit against the penalty unless the person establishes to the satisfaction of the court that he has successfully completed the reformative service. If the person’s participation is for any reason terminated before his successful completion of the reformative service, collection of the entire penalty imposed pursuant to this section shall be enforced. Nothing in this subsection shall be deemed to affect or suspend any other criminal sanctions imposed pursuant to this chapter or chapter 36 of this title.

Any reformative service ordered pursuant to this section shall be in addition to and not in lieu of any community service imposed by the court or otherwise required by law. Nothing in this section shall limit the court’s authority to order a person to participate in any activity, program or treatment in addition to those proposed in a reformative service plan.

(cf: P.L.1999, c.376, s.3)

2. This act shall take effect on the 90th day following enactment.

STATEMENT

This bill would grant the court the discretion to lessen the penalties for certain drug offenses and to allow certain defendants to perform “reformative service” in lieu of a portion of such penalties.

Under current law, set out in N.J.S.2C:35-15, in addition to any other disposition ordered by the court, every person convicted of or adjudicated delinquent for an offense involving a controlled dangerous substance, controlled substance analog, counterfeit substance or drug paraphernalia is assessed a mandatory penalty for each such offense. The penalties are $3,000 in the case of a crime of the first degree; $2,000 in the case of a crime of the second degree; $1,000 in the case of a crime of the third degree; $750 in the case of a crime of the fourth degree, and $500 in the case of a disorderly persons or petty disorderly persons offense. The penalties generally are required to be imposed for each conviction, even if other aspects of the sentence are ordered to be run concurrently. These penalties are informally known as “DEDR” penalties because they are deposited in the “Drug Enforcement and Demand Reduction Fund” (“DEDR”). The funds are appropriated for use in programs to prevent and treat drug and alcohol abuse.

The bill would expand the circumstances under which the court has discretion to allow imposition of a single penalty, instead of multiple penalties. Specifically, the bill would authorize the court to impose the penalty applicable to the highest degree offense for which the person is convicted or adjudicated delinquent under the following circumstances:

(1) the imposition of multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity; and

(2) the imposition of a single penalty would foster the defendant’s rehabilitation.

The bill also provides that, in the alternative, the defendant may propose to the court and the prosecutor a plan to perform “reformative service” in lieu of payment of up to one-half of the DEDR penalty in appropriate cases. The bill provides that “reformative service” includes training, education or work, in which regular attendance and participation is required, supervised, and recorded, and which would assist in the defendant’s rehabilitation and reintegration. “Reformative service” includes, but is not limited to, substance abuse treatment or services, other therapeutic treatment, educational or vocational services, employment training or services, family counseling, service to the community and volunteer work.

Under the bill, the court, in its discretion, would determine whether to accept the plan, after considering the position of the prosecutor, the plan’s appropriateness and practicality, the defendant’s ability to pay and the effect of the proposed service on the defendant’s rehabilitation and reintegration into society. The court would determine the amount of the credit that would be applied against the penalty upon successful completion of the service. The credit could not exceed one-half of the penalty amount assessed.

Any reformative service plan ordered under the bill would be in addition to and not in lieu of any community service imposed by the court or otherwise required by law. The bill provides that the court’s authority to order a person to participate in any activity, program or treatment in addition to those proposed in a reformative service plan would not be limited.

The defendant would be entitled to the credit against the DEDR penalty when he provides the court with proof of successful completion of the reformative service.

This bill embodies a recommendation of the Governor’s Strategy for Safe Streets and Neighborhoods, announced earlier this year.

Category: Muni-Mail Archive

Judges May Now Suspend Registration Privileges for Parking Tickets

Under legislation signed into law by the governor on January 13, 2008, New Jersey’s municipal court judges now have the option of suspending either the driver’s license or registration privileges of a person who fails to appear in response to a parking ticket or who fails to pay parking ticket fines. The new option of registration suspension is intended to provide judges and the Motor Vehicle Commission with enhanced options in order to compel compliance with the local, county and state parking law enforcement. Note that the amended statute permits suspension of either the license or registration, but not both. The amended statute under the Parking Offenses Adjudication Act is as follows:

Registration Suspension

1. Section 9 of P.L.1985, c.14 (C.39:4-139.10) is amended to read as follows:

9. a. If a person has failed to respond to a failure to appear notice or has failed to pay a parking judgment, the municipal court may give notice of that fact to the commission in a manner prescribed by the chief administrator. If notice has been given under this section of a person’s failure to respond to a failure to appear notice or to pay a parking judgment and if the fines and penalties are paid or if the case is dismissed or otherwise disposed of, the municipal court shall promptly give notice to that effect to the commission.

b. The judge or the commission may suspend the driver’s license, or the registration of the motor vehicle of an owner, lessee, or operator who has not answered or appeared in response to a failure to appear notice or has not paid or otherwise satisfied outstanding parking fines or penalties. If an owner, lessee or operator has been found guilty of a parking offense, the court shall provide notice and an opportunity to appear before a judge prior to suspending that person’s driver’s license or motor vehicle registration. If the owner, lessee or operator is found by the court to be indigent or is participating in a government-based income maintenance program, that person shall be permitted to pay the parking fine and other penalties in installments in accordance with section 1 of P.L.1981, c.365 (C.39:4-203.1).

c. The commission shall keep a record of a suspension ordered by the court pursuant to subsection b. of this section.

(cf: P.L.1999, c.397, s.1)

2. Section 10 of P.L.1985, c.14 (C.39:4-139.11) is amended to read as follows:

10. a. When a person whose license or motor vehicle registration has been suspended pursuant to subsection b. of section 9 of P.L.1985, c.14 (C.39:4-139.2 et seq.) satisfies the fines and any penalties imposed by the court, the court shall forward to the commission a notice to restore the person’s driver’s license or registration.

b. Upon receiving a notice to restore pursuant to subsection a. of this section, the commission shall record the restoration and notify the person of the restoration.

(cf: P.L. 1985, c. 14, s. 10)

3. This act shall take effect immediately.

Statement

The Senate Transportation Committee reports favorably Senate Bill No. 2326 with committee amendments.

This amended bill would provide a judge and the Motor Vehicle Commission with greater flexibility when dealing with a person who has failed to respond to a failure to appear notice or who has not satisfied outstanding parking fines or penalties. Under current law, a judge or the commission may suspend the person’s driver’s license. Under the provisions of this bill, a judge or the commission would be permitted to suspend either the person’s motor vehicle registration or driver’s license. In determining whether to suspend the person’s driver’s license or the motor vehicle registration, the judge and the commission shall take into consideration the area where the person resides and whether or not the person has access to off-street parking.

This bill was prompted by a recommendation from the Motor Vehicles Affordability and Fairness Task Force.

The committee amended the bill by requiring the judge and the commission to take into consideration the area the person resides in and whether or not the person has access to off-street parking in deciding between suspension of the driver’s license or the motor vehicle registration. The committee also made a technical amendment.

Category: Muni-Mail Archive

Refusal to Take a Breath Test Now Includes “Baby DWI” Offenders – NJSA 39:4-5

Under legislation signed into law last week by the governor, it is now an offense to refuse to provide a breath sample for the purpose of chemical testing when an individual has been arrested for underage drinking under NJSA 39:4-50.14, the so-called “Baby DWI” statute. People who are convicted of a refusal offense following an arrest for underage drinking will be subject to all the normal penalties for refusing to submit to a breath test, including loss of license, fines, and IDRC requirements. Collateral consequences involving motor vehicle surcharges of $1000 per year for 3 years and 9 insurance eligibility points apply as well. Finally, people who are arrested for this offense in a school zone are subject to doubled fines and license loss.

Category: Muni-Mail Archive

Supreme Court Relaxes Automatic Disbarment Rule – In re Kivler

Yesterday, in In re Kivler, the New Jersey Supreme Court ruled that an attorney with a significant disciplinary prior history who did not appear to defend himself in response to an order to show cause would be subject to a 3-year suspension of his license to practice law. This decision is significant in that it represents a major departure from a rule of disciplinary law that was announced only 4 years ago. In 2004, Justice Albin, writing for the Court, held that “[a]n attorney who declines to appear before this Court to explain his unprofessional conduct and who offers no evidence in mitigation of punishment for disciplinary infractions as serious as those in this case openly displays his unfitness to continue to practice law.” In re Kantor, 180 N.J. 226, 233 (2004). The Justices reaffirmed this rule the following year in a per curiam opinion by stating, “Moreover, inasmuch as respondent failed to cooperate, failed to respond to the request for a verified answer, and failed to offer evidence in mitigation, disbarment is the appropriate sanction.” In re Morell, 184 N.J. 299, 30 (2005).

The facts in Kivler are virtually indistinguishable to those in Kantor. The respondent in Kivler had the same type of disciplinary history as was the case in Kantor, engaged in the same type of attorney misconduct and failed to either cooperate with disciplinary authorities or show up in the Supreme Court to answer an order to show cause. Yet, despite the similarities, the Justices voted to suspend instead of following the rule in Kantor which would have resulted in disbarment.

The fact that the Justices issued a rare, signed disciplinary opinion in this matter is extremely significant and signals a modification to the harsh rule of law announced in the 2004 Kantor decision.

Download a copy of In re Kivler.

Category: Muni-Mail Archive

Red Light Enforcement via Digital Photo Now Legal in New Jersey

Yesterday, the governor signed into law an amendment to Title 39 that establishes a pilot program which will permit traffic control device enforcement to be made via digital photography at intersections. The photographs made by the cameras would used to establish a violation of NJSA 39:4-81 and other statutes related to red lights. For purposes of this statute, the owner and driver would be jointly and severally liable for the violation. Process in the form of a summons will be issued by a law enforcement officer for this violation. In addition, unlike other red light violations, no motor vehicle penalty points or insurance eligibility points will be assessed for violations enforced by way of a camera at an intersection. The text of the statute follows:

1. The Legislature finds:

The disregard of traffic control devices at intersections impedes the efficient flow of traffic, and more importantly, dramatically increases the likelihood of accidents that endanger the safety and well being of motor vehicle occupants and pedestrians.

The installation and use of a traffic control signal monitoring2 system, which complements the efforts of local law enforcement, 1 could1 serve as an effective tool in encouraging drivers to strictly obey traffic control devices at intersections, facilitating the flow of traffic and protecting the safety and well being of motor vehicle occupants and pedestrians.

The Legislature, therefore, declares:

It is altogether fitting and proper, and within the public interest, to require the Commissioner of Transportation to establish a pilot program to determine the effectiveness of the installation and utilization of traffic control signal monitoring systems in this State and to approve applications municipalities where such systems may be installed.1

2. As used in this act:

“Recorded image” means a digital image recorded by a traffic control signal monitoring system .

“Summons” means a citation alleging a violation of a traffic control signal.

“Traffic control signal” means a device, whether manually, electrically, mechanically 2,2 or otherwise controlled 2,2 by which traffic is alternatively directed to stop and to proceed 2, and2 which has been approved by the Commissioner of Transportation in accordance with the “Manual on Uniform Traffic Control Devices for Streets and Highways.”1

“Traffic control signal monitoring system” means an integrated system or device utilizing a camera 2, or a multiple camera system,2 and vehicle sensors which work in conjunction with a traffic control signal and is capable of producing:

a. high resolution color digital recorded images that show: (1) the traffic control signal while it is displaying a red light; (2) a motor vehicle unlawfully entering and continuing through2 the intersection while the traffic control signal is displaying a red light; and (3) a portion of the rear of the motor vehicle unlawfully in the intersection sufficient to clearly reveal the vehicle’s license plate and the make and model of the vehicle; and

b. a video recording of the violation 2that shows the violation occurring2.

A digital camera may be used as part of a traffic control signal monitoring system provided the violation images are captured by a digital camera , or a multiple camera system,2 which produces a set of 2at least2 two images for each violation. At least one of the digital color images shall contain the following: (1) the scene of the location where the violation occurred; (2) the violating motor vehicle; (3) 2 the license plate numbers, letters 2,2 and issuing jurisdiction; (4)2 the day, month 2,2 and year of the violation; (5)2 the time of the violation in hours, minutes 2,2 and seconds; (6)2 the amount of time that had passed between the time the light turned red and the violation occurred; and (7) the frame sequence code2. This information shall be imprinted along the bottom or top edge of the image frame so as not to obstruct the violation image.

13. a. The Commissioner of Transportation shall establish a 2five-year2 pilot program to determine the effectiveness of the installation and utilization of traffic control signal monitoring systems in this State. A municipality desiring to participate in the program shall submit an application to the Commissioner of Transportation. The application shall include:

(1) The intersection or intersections in the municipality at which it is desired to install and utilize a traffic control signal monitoring system;

(2) Data which indicate that the intersection or intersections in question have a high number of violations of the traffic control signals, and any additional safety data the municipality deems appropriate;

(3) A certification by the municipal engineer that (a) the intersection or intersections in question have a minimum duration of the amber light at the traffic control signal of three seconds if at least 85 percent of the vehicular traffic approaching the signal is traveling at a speed of 25 miles per hour or less; and (b) for each five mile increase in the speed of vehicular traffic referred to in subparagraph (a) of this paragraph above 30 miles per hour this minimum duration of the amber light shall be increased by one-half second.

(4) Such other information as the Commissioner of Transportation may require.

The commissioner may approve as many2 municipalities making application 2as he deems appropriate,2 and shall indicate which of the intersections in those applications are approved for the installation and utilization of traffic control signal monitoring systems.

b. Notwithstanding the provisions of P.L.1992, c.91 (C.39:4-103.1 et seq.), the governing body of a municipality, by ordinance, may determine to install and utilize a traffic control signal monitoring system to facilitate the lawful observance of and compliance with traffic control signals governing the flow of traffic at intersections under its jurisdiction approved by the Commissioner of Transportation pursuant to subsection a. of this section.

c. A traffic control signal monitoring system installed and utilized pursuant to this section shall be of a type approved by the governing body of the municipality.

d. In any municipality where the governing body has authorized the installation and use of a traffic control signal monitoring system pursuant to subsection b. of this section, a sign notifying drivers that such a monitoring system is being utilized shall be placed on each street converging into the affected intersection. The sign shall be of a design and 2[shall be]2 placed in accordance with specifications approved by the municipal engineer. The specifications so approved shall conform with the uniform system set forth in the “Manual on Uniform Traffic Control Devices for Streets and Highways.”

e. A traffic control signal monitoring system shall be inspected and certified at least once every six2 months by the municipal engineer2 from the date of its installation for the duration of the five-year pilot program prescribed by P.L. , c. (C. ) (pending before the Legislature as this bill)2.

4. a. In any municipality where the governing body has authorized the installation and use of a traffic control signal monitoring system, a law enforcement official of such municipality shall review the recorded images produced by the traffic control signal monitoring system. In conducting such review, the law enforcement official shall determine whether there is sufficient evidence to conclude that a traffic control signal violation has occurred and shall issue a summons where it is deemed appropriate.2 1A traffic control signal violation summons issued pursuant to a traffic control signal monitoring system established in accordance with this act shall be served by a law enforcement official in accordance with the Rules of Court. Except as otherwise provided in this subsection, the recorded images produced by the traffic control signal monitoring system shall be available for the exclusive use of any law enforcement official for the purposes of discharging the official’s duties pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). Any recorded image or information produced in connection with the traffic control signal monitoring system shall not be deemed a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law concerning access to public records. The recorded images shall not be discoverable as a public record by any person, entity, or governmental agency, except upon a subpoena issued by a grand jury or a court order in a criminal matter, nor shall they be offered in evidence in any civil or administrative proceeding not directly related to a traffic control signal violation.

Any recorded image or information produced in connection with the traffic control signal monitoring system pertaining to a specific violation shall be purged and not retained later than 60 days after the collection of any fine or penalty. If a law enforcement official does not issue a summons for a traffic control signal violation within 40 business days, all recorded images and information collected pertaining to that alleged violation shall be purged within two business days. Any municipality operating a traffic control signal monitoring system shall certify compliance with this subsection in the report required to be filed with the Commissioner of Transportation pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill)2.

b.1 Except as provided in subsection c. of this section, the owner and operator shall be jointly liable for a traffic control signal violation issued pursuant to a traffic control signal monitoring system established in accordance with this act, unless the owner can show that the vehicle was used without his consent, express or implied. An owner who pays any fine, penalty, civil judgment, costs or administrative fees in connection with a traffic control signal violation issued pursuant to a traffic control signal monitoring system shall have the right to recover that sum from the operator in a court of competent jurisdiction.

c.. The owner of a motor vehicle who is a lessor shall not be liable for a traffic control signal violation summons issued pursuant to this act when the motor vehicle is under the control or in the possession of the lessee, if upon notice of a traffic control signal violation, the owner of the motor vehicle which was leased at the time of the offense notifies the clerk of the court where the case is pending, by an affidavit2 of the name and address of the lessee. The affidavit2 shall be in a form prescribed by the Administrative Director of the Courts.

After providing the name and address of the lessee, the owner shall not be required to attend a hearing of the offense, unless otherwise notified by the court.

2d. In no case shall motor vehicle points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) be assessed against any person for a violation occurring under the provisions of this act.

e. It shall not be a defense to any traffic control signal violation that the signs required to be posted pursuant to subsection c. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), notifying drivers that a traffic control signal monitoring system is being utilized, are not posted or are improperly posted.2

5.2 The Commissioner of Transportation, the Chief Administrator of the Motor Vehicle Commission, and the Superintendent of the State Police may, in accordance with the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate rules and regulations to effectuate the purposes of this act. The Supreme Court of New Jersey may adopt Rules of Court appropriate or necessary to effectuate the purposes of this act.

6. The municipalities whose applications have been approved for the pilot program established pursuant to this act shall submit reports 2every 12 months after a traffic control signal monitoring system has been installed2 to the Commissioner of Transportation detailing increases or decreases in violations and accidents at intersections where traffic control signal monitoring systems have been installed. 2The2 Commissioner of Transportation shall prepare and submit an annual report to the Governor, the President of the Senate, the Speaker of the General Assembly, and the Senate Transportation Committee and the Assembly Transportation and Public Works Committee or their successor committees describing the pilot program developed pursuant to this act, including accident and violation information reported by the affected municipalities.The first such report shall be submitted no later than one year after the installation of the first traffic control signal monitoring system authorized pursuant to this act. Thereafter, subsequent reports shall be submitted annually for the duration of the five-year pilot program prescribed by P.L. , c. (C. ) (pending before the Legislature as this bill), with the fifth and final report providing a comprehensive review of the pilot program, including but not limited to, an evaluation of the program’s effectiveness, a discussion of extending the program to other intersections in the State, and any other information relevant to the report.

7. This act shall take effect ninety days following enactment and shall expire upon the submission of the Commissioner of Transportation’s fifth and final report to the appropriate parties pursuant to section 6 of this act.

Category: Muni-Mail Archive

Owner presumed Responsible for Leaving the Scene – Amended NJSA 39:4-129 – Lyman Bud Kay Rule

Yesterday, the governor signed into law certain amendments to the leaving the scene of an accident statute, NJSA 39:4-129. The amendments provide that there will now be a permissive inference that can be drawn by the fact finder in court that the registered owner of a motor vehicle was involved in the motor vehicle accident for which the driver left the scene. The amendment also creates a new offense of concealing the identity of a person who has been involved in an accident and has left the scene. The legislature also made similar amendments to the failure to report statute under NJSA 39:4-130.

Note that the permissive inference does not call for a conclusion that the owner was the operator of the offending vehicle, but merely that such person was “involved” in the accident.

Copies of the amended portions of the two statutes are included with this muni-mail.

Amendment to NJSA 39:4-129(e)

(e) There shall be a permissive inference that the driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property has knowledge that he was involved in such accident.

For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident.

There shall be a permissive inference that the registered owner of the vehicle which was involved in an accident subject to the provisions of this section was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

Amendment to NJSA 39:4-130

In those cases where a driver knowingly violates the provisions of this section by failing to make a written report of an accident, there shall be a permissive inference that the registered owner of the vehicle which was involved in that accident was the person involved in the accident; provided, however, if that vehicle is owned by a rental car company or is a leased vehicle, there shall be a permissive inference that the renter or authorized driver pursuant to a rental car contract or the lessee, and not the owner of the vehicle, was the person involved in the accident, and the requirements and penalties imposed pursuant to this section shall be applicable to that renter or authorized driver or lessee and not the owner of the vehicle.

Any person who suppresses, by way of concealment or destruction, any evidence of a violation of this section or who suppresses the identity of the violator shall be subject to a fine of not less than $250 or more than $1,000.

Category: Muni-Mail Archive

Laurick Permits Sentencing Step-down on 4th DWI Conviction – State v. Conroy

In today’s Appellate Division ruling in State v. Conroy, the Court held that a successful collateral attack on a previous DWI conviction under State v. Laurick, 120 N.J. 1 (1990) will eliminate that conviction completely for purposes of determining the length of the authorized jail term for a subsequent DWI offense and does not prevent the defendant from receiving the benefit of a 10-year step down on a subsequent offense.

In Conroy, the defendant had three prior DWI convictions, the last of which was in 1995. In 2005, the defendant was arrested and charged with his 4th DWI offense. The 2005 offense occurred more than 10 years after his third offense in 1995. While the 4th offense was pending, the defendant collaterally attacked his first DWI conviction under State v. Laurick, arguing that this particular conviction had been uncounselled and was obtained without the proper judicial advisements and waivers. The defendant was successful in his collateral attack. Having thus successfully eliminated his first offense for sentence enhancement purposes as per Laurick, the defendant argued before the Appellate Division that he was entitled to the benefit of the 10 – year step-down on the mandatory jail term associated with his 4th offense in 2005 since that violation was now technically only his third offense for sentencing purposes. The Court agreed and ruled that for purposes of the custodial component of his sentence on the 2005 conviction, the defendant should be treated as a second offender. Thus, instead of facing a mandatory 180 jail term for his 2005 offense, following remand, the defendant will be subject to a jail term that will range between 2 and 90-days, as is required for 2nd offenders.

Download a copy of State v. Conroy.

Category: Muni-Mail Archive