[July 3, 2012 – 11:40 am] In response to the Supreme Court’s recommendation in State v. Schmidt, 206 NJ 71 (2010), the Attorney General has released an updated version of the DWI standard statement usually referred to as “Paragraph 36.” The new form is the first significant change to the standard statement since 2004.
Among the changes in the new form are the following:
1. Greatly simplified language
2. A warning about the requirement of the ignition interlock device upon conviction
3. A warning that the obligation to submit to the test includes following instructions, properly performing the test and providing sufficient breath samples, all of which were in play in the Schmidt decision.
The new form does not mention the loss of a civil cause of action under NJSA 39:6A-4.5 upon conviction nor does it provide advice to those defendant who, because of langauge issues, do not understand the standard statement (State v. Marquez, 202 NJ 485 (2010)) or the officer’s instructions on how to take the test. (See Generally State v. Rodriguez-Alejo, 419 NJ Super. 33 (App. Div. 2011)).
A copy of the new paragraph 36 can be found here.
[07/02/12 – 12:29 pm] Last week, the Appellate Division ruled that the aggravating and mitigating sentencing factors that the Supreme Court listed in State v. Moran, 202 NJ 311 (2010) apply when sentencing a defendant who has been convicted of careless driving involving a homicide.
[Note – vehicular homicide involving careless conduct does not constitute a criminal offense in New Jersey although it can be the basis of a motor vehicle offense.]
The case, captioned State v. De Palma, involved a fatal accident where the defendant struck and dragged a pedestrian. The pedestrian died of the injuries sustained two-months later.
The the municipal court, the judge sentenced the defendant to a 15-day jail term, a $241 fine and a 90-day suspension of driving privileges. The judge based his sentence on:
1. his knowledge of the case from newspaper accounts;
2. his personal review of the discovery; and
3. his belief that the defendant had murdered the victim.
The municipal court sentence was affirmed by the Law Division.
In vacating the jail term and remanding for resentencing, the Appellate Division held that the Moran sentencing principles are equally apt in determining whether to impose a custodial sentence in this matter, which involves a conviction for careless driving. Just as the Supreme Court directed trial judges to examine the indicia of willful or wanton conduct in the determination of a license suspension in reckless driving sentencing, so too must the sentencing judge identify the behavior that constitutes driving carelessly, without due caution and circumspection. Judges may only impose a license suspension or custodial sentence in careless driving cases that present aggravating circumstances. Those aggravating circumstances are to be gleaned from the evidential sources in the record, which shall be recited in the judge’s factual findings. The judge must then undertake an appropriate weighing of the Moran principles based only on the evidential sources in the record.
Please note that there are three errors in the Appellate Division opinion:
1. The Court incorrectly cites NJSA 39:4-203 as the statute to be used for sentencing under careless driving. The correct statute is NJSA 39:4-104.
2. The Court does not comment on the $241 fine imposed for the careless driving. This is no doubt an illegal sentence. Unless there is a required doubling of the fines (e.g. construction zone), the maximum fine, costs and assessments total $200 (fine) + 33 (costs) + 6 (assessments under NJSA 39:5-41) = $239
3. The Court does not comment on the fact that the holding in Moran was incorporated into the Rules of Court and have been mandatory since September 1st of last year. See Rule 7:9-1(c).
Download a copy of State v. De Palma.