Monthly Archives: May 2005

Search of Utility Records Requires Warrant – State v. Domicz

Earlier today, the Appellate Division ruled that under Article I, Paragraph 7 of the New Jersey Constitution, police must obtain a search warrant in order to obtain a utility’s records related to the usage of electricity in an individual’s home.

The facts in State v. Domicz involve an investigation that began when the police learned that the defendant had obtained certain, unspecified packages of equipment from a local company that sold plant growth equipment. This fact aroused the suspicion of the police who then obtained a subpoena for the defendant’s electrical usage records from his utility.Thereafter, the police used a “thermal scan” on the defendant’s home in order to ascertain whether any extraordinary heat was being generated within.

Since none of these investigative techniques provided the police with sufficient evidence to establish probable cause to believe that any crime was being committed by the defendant or to believe that evidence of a crime was inside the defendant’s house, the investigating officers went to the defendant’s house in force in order to speak to him. According to the police, the defendant voluntarily consented to a search of his home, the result of which was the discovery of marijuana plants growing inside sufficient to constitute a crime of the first degree.

The Appellate Division’s decision in Domicz is enormously important. Please pay special attention to the following points:

1. The Court notes that the police must have a reasonable suspicion before requesting consent to search a home. This requirement has previously only come up in the context of searches of motor vehicles (See State v. Carty). The Domicz holding expands this requirement for the first time and without discussion to searches of homes.

2. There is an excellent review of every case in New Jersey search and seizure jurisprudence where a Court has extended enhanced protections under the New Jersey Constitution.

3. Note that the Court states that New Jersey law enforcement should have been able to predict that thermal scans of homes would be considered an illegal investigative technique, notwithstanding that the United States Supreme Court case that found this practice to be unreasonable under the 4th amendment was not published until a year after the police conducted the thermal scan in this case.

4. The Court also holds that evidence obtained from a consent search will be excluded if it results either directly or indirectly from illegal police conduct.

Download a copy of State v. Domicz

(c) Muni-mail 2005 – All Rights Reserved.

Category: Muni-Mail Archive

AOC Releases New Statewide Bail Schd & Standards

Today, the Administrative Director of the courts issued Directive 9-05 which completely revamps and updates bail procedures in municipal court for the first time in 20 years. Among the changes implemented by the Directive is the abolition of all local bail schedules. They are to be replaced by a uniform bail schedule that applies in all municipal courts in the State. A copy of the new bail schedules and the report of the Judicial Council that conducted a study of the bail issues in New Jersey is attached to this muni-mail.

An additional major change relates to bail amounts to be set on bench warrants issued for failure to pay fines or comply with a sentence. The former practice of setting the bail automatically to equal the amount owed has been disapproved. Bail in these cases must now be set in a reasonable amount and must take into consideration the defendant’s individual circumstances. This significant change in policy came about as a result of the AOC’s recognition of the harsh impact high bails associated with failure to pay bench warrants have on poor minorities.

Reproduced below is the text of Directive 9-05. The Report and new bail schedules can be downloaded here.
Directive # 9-05



DATE: MAY 12, 2005

This Directive promulgates two Statewide Bail Schedules and adopts policies on bail practices offered in the Conference of Criminal Presiding Judges Report on Bail Practices. The recommendations contained in that report were approved by the Judicial Council at its November 10, 2004 meeting. That report is available on the New Jersey Judiciary Internet site at

The two Statewide Bail Schedules attached to this Directive supersede all previously issued bail schedules, including the schedule contained in the Memorandum to Municipal Court Judges, dated May 29, 1985, from former Administrative Director Robert D. Lipscher, and are effective immediately. All local bail schedules are also superseded and may not be used.

The bail schedules should be used only when the presumption that a summons should be issued is overcome and the factors required for a warrant are present. R. 3:3-1(c) and R. 7:2-2(b).

Bail Schedule 1 contains offenses for which only a Superior Court Judge may set bail. R. 3:26-2. Bail Schedule 2 contains frequently charged offenses, including disorderly persons and petty disorderly persons offenses, for which bail may be set by a Superior Court Judge, a Municipal Court Judge or, when authorized by the Municipal Court Judge, a municipal court administrator or deputy court administrator. The authority of an authorized court administrator to set bail may be exercised only in accordance with Bail Schedule 2, promulgated by this Directive.

It should be emphasized that these bail schedules contain general bail ranges that are meant to be advisory in nature. Each case is fact sensitive. Bail must not be assessed solely by determining the degree of the charged offense, since many crimes within the same degree are significantly different with respect to the seriousness of the criminal conduct, the harm to the victim, and the danger to the community.

Releasing a defendant on bail is not a mere formality. The Supreme Court in State v. Johnson, 61 N.J. 351 (1972), directed that an evaluation should be conducted using the following factors: (1) the seriousness of the crime charged, the apparent likelihood of conviction, and the extent of the punishment prescribed; (2) the defendant’s criminal record and previous record on bail; (3) the defendant’s reputation and mental condition; (4) the defendant’s length of residence in the community; (5) the defendant’s family ties and relationships; (6) the defendant’s employment status, record of employment and financial condition; (7) the identity of responsible members of the community who would vouch for the defendant’s reliability; and (8) any other factors indicating the defendant’s mode of life or ties to the community or bearing on the risk of failure to appear. See also R. 3:26-1 and R. 7:4-1.

A summary of the court rules and statutes governing bail as of May 1, 2005 has been attached to this directive for reference when utilizing the Statewide Bail Schedules.

I. No monetary amount of bail may be set when a defendant is released on his or her own recognizance.

When the court determines that a defendant should be released on his or her own recognizance (ROR), no monetary amount of bail may be set. The development of this statewide policy is based on the premise that setting a monetary amount on an ROR bail is antithetical to the setting of an ROR bail. The theory behind ROR is to release a defendant on his or her own promise to appear in court. In other words, when a judge releases a defendant on his or her own recognizance the judge has made a determination that a defendant will return to court without the need for a monetary bail to ensure his or her appearance. If a judge believes there is a risk that the defendant will not return to court, the judge can always set bail with a monetary amount.

In addition, this policy is designed to eliminate various administrative complications involved in forfeiting ROR bails. For instance, some courts have attached a monetary amount to ROR bails, while others have not. Even in those courts that set monetary amounts on ROR bails, the majority made no effort to collect those amounts when bail was forfeited.

II. Criminal Presiding Judges and Municipal Presiding Judges must ensure that procedures for periodic bail reviews for incarcerated defendants are in place.

Fairness in bail practices involves not only the initial setting of bail amounts and conditions, but also the continuing and careful review of the bail set on defendants who are unable to make bail. Such subsequent reviews normally involve much more information than was available to the judge or judicial officer who initially set the bail.

A. Criminal Presiding Judges and Municipal Presiding Judges must ensure that all defendants held on bail receive their first appearance within 72 hours pursuant to R. 3:4-2 and R. 7:3-1. Further, Criminal Presiding Judges and Municipal Presiding Judges must ensure that procedures are in place to periodically review bail amounts of all incarcerated defendant charged with matters cognizable in the municipal courts or held on post-adjudication warrants to make sure that they are not held for unreasonable periods of time.

B. Criminal Presiding Judges must pay particular attention to ensure that procedures are in place that provide for a periodic review of the bail set for all defendants who are held in lieu of bail on indictable charges pending presentation to the Grand Jury or who are post-indictment but prior to arraignment.

C. Criminal Presiding Judges must carefully monitor and expeditiously move to trial all post-indictment defendants who have indicated that they do not wish to resolve their cases by pleas. If substantial delays occur, particularly if not caused by the defendant, serious consideration is to be given to reducing the bail of an incarcerated defendant.

III. Municipal Court Judges and other authorized judicial officers should give careful consideration to setting bail for post-adjudication warrants and not merely automatically or routinely designate the bail amount as the total amount of the outstanding fines.

In order to give indigent defendants a better opportunity to make bail and thereafter to pay or otherwise perform the remainder of their obligations, the bail amount set on post-adjudication warrants for failure to pay fines or failure to meet other conditions must be reasonable and should take into account the defendant’s personal circumstances. Therefore, the automatic setting of bail in the amount of the outstanding fines, penalties and costs is usually inappropriate. State v. Johnson, 61 N.J. 351 (1972).

Copyrighted (c) 2001 – New Jersey Judiciary

Category: Muni-Mail Archive

Guilty DWI Defendant entitled to PIP – Walcott v. Allstate

In general, a conviction for drunk driving or refusing to take a breath test will preclude the defendant from pursuing a cause of action for economic and non-economic damages related to the drunk driving conduct. The same holds true for property damages (as developed thru the case law.) This prohibition stems from N.J.S.A. 39:6A:4.5 and represents one of the major collateral consequences associated with a drunk driving conviction in municipal court.

Several weeks ago, the Appellate Division held that the prohibitions under N.J.S.A. 39:6A-4.5 do not apply to PIP coverage and accordingly, a convicted drunk driver is entitled to PIP benefits for medical expenses related to the DWI incident. Because this marks a fairly substantial change in both insurance and drunk driving law, we have included the case in this muni-mail.







Argued March 8, 2005 – Decided April 13, 2005

Before Judges Skillman, Collester and Parrillo.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. BER-L-7843-02.

David Wendel argued the cause for appellant.

Thomas W. Griffin argued the cause for respondent
(Litvak & Trifiolis, attorneys; Mr. Griffin, of
counsel and on the brief).

The opinion of the court was delivered by


At issue is whether New Jersey’s no fault insurance law bars an insured motorist who was intoxicated at the time of the accident from collecting personal injury protection (PIP) benefits for injuries sustained therein. The motion judge answered in the affirmative, finding that N.J.S.A. 39:6A-4.5(b) precludes such first-party recovery. We now hold otherwise.

The facts are straightforward. On February 19, 2001, plaintiff, Melanie Walcott, while operating her automobile insured by defendant, Allstate New Jersey Insurance Company (Allstate), was involved in a one-car collision and sustained bodily injuries requiring medical treatment. In connection with that accident, she was charged with, and pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50, based on Breathalyzer readings slightly in excess of the then legal limit of 0.10%. Subsequently, she filed a claim with Allstate for PIP benefits provided for by her policy pursuant to N.J.S.A. 39:6A-4(a), seeking recovery of medical expenses in the amount of $33,472.16. Allstate refused to pay, claiming that plaintiff was convicted of DWI and, therefore, was ineligible to receive recompense based on the exclusionary language of the policy See footnote 1 . In its denial of PIP benefits, Allstate also invoked the statutory bar of N.J.S.A. 39:6A-4.5(b), which provides, in pertinent part, that any person convicted of N.J.S.A. 39:4-50 in connection with a motor vehicle accident “shall have no cause of action for recovery of economic or non-economic loss sustained as a result of the accident.” N.J.S.A. 39:6A-4.5(b).

Plaintiff thereafter filed suit seeking PIP benefits pursuant to her Allstate policy. Following Allstate’s answer, both parties cross-moved for summary judgment. Plaintiff argued that N.J.S.A. 39:6A-4.5(b) was not applicable to claims for PIP benefits and that the only statutory exclusions for PIP benefits are those set forth in N.J.S.A. 39:6A-7, which does not contain the DWI disqualification. The judge disagreed and dismissed plaintiff’s complaint with prejudice, finding the statutory bar of N.J.S.A. 39:6A-4.5(b) applicable to first-party claims for PIP benefits. This appeal follows.

In New Jersey, all owners of motor vehicles registered or principally garaged in this State must maintain liability insurance coverage for bodily injury, death, and property damage caused by their vehicles, N.J.S.A. 39:6B-1, and every policy also must provide “[PIP] benefits” that guarantee, without regard to fault, medical expense benefits to the named insured and his family household members in the event they suffer bodily injury in an automobile accident. N.J.S.A. 39:6A-4. “This system of first-party self-insurance through PIP benefits,” enacted pursuant to the New Jersey Automobile Reformation Reform Act (the No Fault Act), L. 1972, c. 70; N.J.S.A. 39:6A-1 to -35, was designed to provide benefits promptly and efficiently to all accident injury victims. Caviglia v. Royal Tours of Am., 178 N.J. 460, 466-67 (2004); Fu v. Fu, 160 N.J. 108, 121 (1999); Gambino v. Royal Globe Ins. Co., 86 N.J. 100, 105-07 (1981). To this end, first-party coverage was “intended to serve as the exclusive remedy for payment of out-of-pocket medical expenses arising from an automobile accident.” Caviglia, supra, 178 N.J. at 466; see also Roig v. Kelsey, 135 N.J. 500, 503, 512 (1994). Thus, for example, an injured driver with a standard liability policy was barred from suing the tortfeasor for the very PIP benefits reimbursable through his own insurance carrier. Caviglia, supra, 178 N.J. at 467 (citing Sotomayor v. Vasquez, 109 N.J. 258, 261-62 (1988)).

Meanwhile, as the no-fault system evolved, in an effort to advance the cost-containment objective and to relieve congestion of court calendars, the Legislature periodically placed further restrictions on the right to sue in automobile accident cases involving third-party claims and uninsured motorist (UM) and underinsured motorists(UIM) claims that are treated as third-party claims. See L. 1983, c. 362; L. 1985, c. 520, § 14; L. 1988, c. 119 §§ 4, 6; L. 1997, c. 151, § 13. These limitations created tort options and subjected motorists to verbal thresholds as a condition to filing a lawsuit for personal injuries. Oswin v. Shaw, 129 N.J. 290, 296 (1992). Additionally, motorists not carrying the compulsory insurance required by N.J.S.A. 39:6A-4 were restricted in their ability to sue for non-economic damages, that right conditioned at first on meeting a monetary medical expense threshold, L. 1985, c. 520, § 14, and eventually eliminated altogether, L. 1997, c. 151, § 13 (current version at N.J.S.A. 39:6A-4.5).

Significantly, the Legislature addressed exclusions from PIP coverage separately. As part of the comprehensive revision of the No Fault Act effected by the Cost Containment Act in 1984, the new legislation also enlarged the class of people to be excluded from PIP coverage entirely. L. 1983, c. 362; Caviglia, supra, 178 N.J. at 468. In particular, N.J.S.A. 39:6A-7 denied PIP benefits to those persons whose intentional or criminal conduct contributed to their own personal injuries and to those owners and registrants of New Jersey vehicles who failed to maintain PIP coverage. L. 1983, c. 362, § 10. These, however, are the exclusive statutory debarments to PIP coverage. As such, they must be narrowly construed consistent with the legislative purpose to provide prompt payment of medical expenses, by replacing third-party claims with first-party coverage. Gambino, supra, 86 N.J. at 106-07.

In fact, the “Legislature expressly considered extending the exclusion from [PIP] benefits contained in the first clause of N.J.S.A. 39:6A-7(a)(1) to a driver involved in an accident while committing a motor vehicle offense, specifically drunk driving, but declined to do so.” Serio v. Allstate Ins. Co., 210 N.J. Super. 167, 172 (App. Div. 1986) (citing Iavicoli, No Fault and Comparative Negligence in New Jersey 35-36 (1973)); see also Stewart v. Royal Ins. Co., 318 N.J. Super. 479, 483 (App. Div. 1999). Thus, given the opportunity, the Legislature refused to extend the exclusion from benefits contained in N.J.S.A. 39:6A-7 to a drunk driver. Consistent therewith, we have repeatedly indicated that PIP coverage is a “social necessity” and should be given “the broadest application consistent with the statutory language.” Id. at 482; Serio, supra, 210 N.J. Super. at 170.

Thereafter, the Legislature continued to grapple with the spiraling costs of automobile insurance and overburdened court calendars. Thus, in 1985, it enacted N.J.S.A. 39:6A-4.5. While Section 7 addresses limitations on first-party claims, Section 4.5 speaks generally to third-party claims and was intended to further “effect ‘the reduction or stabilization of the prices charged for automobile insurance’ and ‘the streamlining of the judicial procedures involved in third-party claims.'” Rojas v. DePaolo, 357 N.J. Super. 115, 119 (Law Div. 2002) (quoting Gambino, supra, 86 N.J. at 105-06). As originally enacted, Section 4.5 required the uninsured driver to satisfy the most onerous monetary threshold before he was entitled to pursue a cause of action for non-economic damages. L. 1985, c. 520, § 14; Caviglia, supra, 178 N.J. at 469. In 1997, the Legislature comprehensively amended Section 4.5, as part of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, to bar causes of action for both economic and non-economic losses in automobile accident cases to three classes of people: those who operate automobiles without insurance, those who drive under the influence or refuse to submit to a breath or blood test, and those who act with the intent to injure themselves or others while driving. The statute now provides:

a. Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by [N.J.S.A. 39:6A-4] shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.

b. Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A. 39:4-50, -50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.

c. Any person acting with specific intent of causing injury to himself or others in the operation or use of an automobile shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident arising from such conduct.

[N.J.S.A. 39:6A-4.5.]

Only subsection (b) of the amended statute is at issue here.

Plaintiff now contends that the Legislature accomplished in Section 4.5 what it deliberately refused to do in Section 7, namely, make PIP benefits unavailable to insured motorists convicted of DWI. We disagree.

When statutes deal with the same subject, they should be read in pari materia and construed so that, to the extent possible, each can be given its full effect. DePalma v. Bldg. Insp. Underwriters, 350 N.J. Super. 195, 222 (App. Div. 2002). Thus, we have explained that PIP protection and UM terms should be construed as in pari materia. State Farm Mut. Auto. Ins. Co. v. Pizzi, 208 N.J. Super. 152, 155 (App. Div. 1986); see also Handler v. State Farm Mut. Auto. Ins. Co., 253 N.J. Super. 641, 644-45 (App. Div. 1992). Likewise, as part of a shared scheme to streamline the judicial process and generally broaden first-party coverage, N.J.S.A. 39:6A-4.5 and N.J.S.A. 39:6A-7 should be read together in a way that accomplishes this purpose. To this end, “[t]here is need to keep in view . . . the structure of the statute, and the relation . . . between its several parts.” Duparquet Huot & Moneuse Co. v. Evans, 297 U.S. 216, 218, 56 S. Ct. 412, 413, 80 L. Ed. 591 (1936). See also State v. Mortimer, 135 N.J. 517, 536, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed.2d 351 (1994); Brokenbaugh v. N.J. Mfrs. Ins. Co., 158 N.J. Super. 424, 434 (App. Div. 1978).

In this regard, Sections 4.5 and 7 control categorically different types of claims, completely distinct both in nature and the legislative treatment accorded the disabilities from coverage under each. Thus, Section 4.5 only applies to third-party claims and claims for UM and UIM benefits where the first-party insurer stands in the shoes of the third-party tortfeasor. Krohn v. N.J. Full Ins. Underwriters’ Ass’n, 316 N.J. Super. 477, 483 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999); Liberty Mutual Ins. Co. v. Hyman, 334 N.J. Super. 400, 412 (Law Div. 2000). Cf. New Jersey Mfrs. Ins. Co. v. McDermott, 201 N.J. Super. 251, 255-56 (Law Div. 1985). In both instances, the cause of action relies upon the claimant’s ability to demonstrate his or her claim for non-economic loss against the tortfeasor in a fault-oriented setting. By contrast, Section 7 involves a first-party claim against an insurer, and the PIP law gives substantial protection for economic loss to one who may be completely at fault. Thus, in Liberty, supra, the court, implicitly distinguishing between the two, found that the uninsured motorist was disabled from collecting PIP benefits under N.J.S.A. 39:6A-7(b), and barred from pursuing a UM claim under N.J.S.A. 39:6A-4.5(a). 334 N.J. Super. at 412.

Having recognized this critical distinction, courts have never interpreted Section 4.5 to expand the very narrow limitations on PIP benefits imposed under Section 7. And the cases relied upon by defendant and the motion judge do not suggest otherwise. In fact, as already noted, Liberty, supra, in effect acknowledged the essential difference in the types of claims under Sections 4.5 and 7. 334 N.J. Super. at 412. Likewise, Monroe v. City of Paterson, 318 N.J. Super. 505 (App. Div. 1999), only concerned an uninsured motorist’s ability to recover medical expenses against a tortfeasor in an automobile negligence case. And, in any event, it was not governed by the current version of Section 4.5, which had not even been adopted at the time of the subject injury. Id. at 506, 510.

We, therefore, find no basis in the statutory scheme or legislative history to apply Section 4.5’s bar to the recovery by drunk drivers of economic and non-economic losses to PIP benefits as well. Indeed, courts have been reluctant to expand the scope of the legislative language beyond its terms. For example, in Rojas, supra, the court declined to add out-of-state residents to the category of those uninsured drivers barred by the statute. 357 N.J. Super. at 119. Similarly, in Camp v. Lummino, 352 N.J. Super. 414, 419 (App. Div. 2002), we declined to apply Section 4.5 to bar an underaged plaintiff’s common law cause of action against his social host, at whose home he had been drinking before becoming involved in a car accident for which he was seeking damages, reasoning that the lawsuit implicated “no motor vehicle coverage and involve[d] no cause of action which would be subject to coverage under Title 39.”

We likewise decline to “enlarge” the specific language of Section 4.5 as defendant suggests. On the contrary, the plain language of that section bars a drunk driver, among others, only from having a “cause of action” for economic or non-economic losses, the former being defined as “uncompensated loss of income or property, or other uncompensated expenses including, but not limited to, medical expenses.” N.J.S.A. 39:6A-2(k) (emphasis added). However, plaintiff’s medical expenses in this case are compensable under her own insurance policy for PIP benefits, as required by N.J.S.A. 39:6A-4. Therefore, the losses for which she seeks recovery in this lawsuit are not uncompensated losses within the meaning of N.J.S.A. 39:6A-4.5’s statutory bar. On this score, we find nothing in the legislative history to suggest either that the current version of N.J.S.A. 39:6A-4.5 changed in any way the pre-AICRA requirement that PIP benefits be paid without regard to negligence, liability or fault of any kind except as provided by N.J.S.A. 39:6A-7, or that this exclusive remedy for recovery of medical expenses was made dependent upon liability for claims against third parties otherwise barred under N.J.S.A. 39:6A-4.5.

The construction we give Section 4.5 is not only consistent with its clear language, but is in keeping, as well, with the statutory mandate that the Act be liberally construed so as to effectuate its purposes, N.J.S.A. 39:6A-16. It also accords with the well-settled principles that “PIP coverage should be given the broadest application consistent with the statutory language,” Amiano v. Ohio Cas. Ins. Co., 85 N.J. 85, 90 (1981), and any exception to its coverage must be “narrowly construed” consistent with that purpose and “the plain meaning of the language.” Gambino, supra, 86 N.J. at 106-07. Accordingly, the policy provision at issue here, being at odds with coverage that we find legislatively required, is unenforceable and deemed amended to conform to the statutory standards, entitling plaintiff to PIP benefits. See Ryder/PIE Nationwide, Inc. v. Harbor Bay Corp., 119 N.J. 402, 407 (1990); Canal Ins. Co. v. F.W. Clukey Trucking Co., 295 N.J. Super. 131, 136 (App. Div. 1996); Parkway Iron & Metal Co. v. New Jersey Mfrs. Ins. Co., 266 N.J. Super. 386 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994); Hermann v. Rutgers Cas. Ins. Co., 221 N.J. Super. 162, 165 (App. Div. 1987); Selected Risks Ins. Co. v. Allstate Ins. Co., 179 N.J. Super. 444, 450 (App. Div.), certif. denied, 88 N.J. 489 (1981).


Footnote: 1 The policy provides in pertinent part:


The coverage under Part 2 [The section relating to personal injury protection benefits] does not apply to:

a. bodily injury to a person whose conduct contributed to his personal injuries or death in any of the following ways:

. . .
(3) who is convicted of, or pleads guilty to:

(a) operating a motor vehicle;
. . .

while the insured . . .:

(a) is under the influence of intoxicating liquor or . . .

(b) is later found to have a blood alcohol concentration by weight of alcohol in excess of the legal limit of the jurisdiction where the violation occurred.

Category: Muni-Mail Archive

Three Month d/l Loss For DWI Not Retroactive – State v. Chambers

This afternoon’s Appellate Division opinion in State v. Chambers makes it clear that the sentencing amendments to N.J.S.A. 39:4-50(a) that went into effect on January 20, 2004 are not to be applied retroactively.

The defendant in Chambers was charged and convicted of drunk driving during 2003. He was given a 6-month d/l suspension in municipal court. His municipal appeal was heard and decided after January 20th of 2004. Upon conviction after his trial de novo in Superior Court, the defendant requested, and was granted a 3 month license loss. (Defendant’s conviction had been based upon his operation while under the influence of alcohol. Breath test readings in his case had been excluded.)

Thereafter, the State appealed the length of the license loss, claiming that it constituted an illegal sentence and that the new sentencing provisions of N.J.S.A. 39:4-50(a) do not apply retroactively.

The Appellate Division ruled that N.J.S.A. 1:1-15 prohibits a retroactive application of the January 2004 amendments to N.J.S.A. 39:4-50(a) and accordingly, the 3-month suspension was illegal.

This case is also important in that it is the first time a court of appellate authority has had the occasion to construe the January 20th amendments to the drunk driving law. It also contains significant discussion about the right of the State to appeal an illegal sentence.

Download a copy of State v. Chambers

(c) Muni-mail 2005 – all rights reserved

Category: Muni-Mail Archive

Citizen Complainant Has No Right to Appeal – State v. Vitiello

This morning’s decision in State v. Vitiello makes it clear that a private citizen complainant has no independent right to take an appeal to the Appellate Division following the dismissal of a petty disorderly persons offense in Superior Court. The defendant in Vitiello was charged with a petty d/p by a private complainant. The defendant sought dismissal in Superior Court under the de minimis statute, NJSA 2C:2-11. The county prosecutor appeared on behalf of the State. When the defendant’s application was granted by the assignment judge, the county prosecutor chose not to appeal. The private citizen complainant thereafter filed an appeal in the Appellate Division, challenging the propriety of the dismissal.

The Appellate Division dismissed the citizen complainant’s appeal on the ground that, as a private citizen, he has no standing under the Rules of Court to bring such an appeal. The State, and only the State can bring an appeal, particularly where the matter has been handled by a public prosecutor. Unless the citizen complainant has been designated as a private prosecutor, he or she has no standing to bring an appeal.

Download a copy of State v. Vitiello

(c) muni-mail -2005 – all rights reserved

Category: Muni-Mail Archive

Penna d/l Suspension Based on NJ DWI – Lepko v. Commonwealth

In order to provide additional information regarding the impact of a New Jersey DWI conviction upon a Pennsylvania licensee, please review Lepko v. Commonwealth of Pennsylvania, an April 26th decision in Commonwealth Court which is reported at 2005 WL 946853 pending assignment of an Atlantic 2d citation.

In Lepko, the Court noted that the Pennsylvania Drunk Driving Statute was amended effective February 1, 2004 to provide that drivers convicted in another Compact state who have never been convicted of DUI before will avoid any suspension of driving privileges because first-time convictions are now treated as violations of 75 Pa.C.S. § 3802 , which is considered an ungraded misdemeanor. Drivers who are convicted of a second or
subsequent DUI will remain subject to suspension of driving privileges.

Thus, the short answer seems to be that a first offender DWI conviction in New Jersey will not result in a Pennsylvania suspension for a Pennsylvania licensee. (Although not discussed in the case, this happy benefit will probably not apply in those cases where a Pennsylvania defendant has previously avoided a DWI conviction in the Commonwealth via the use of the diversionary program known as ARD.) For further information, please refer to the Penndot web site at

Commonwealth Court of Pennsylvania.
Joseph D. LEPKO, Appellant
No. 1556 C.D.2004.
Argued April 6, 2005.
Decided April 26, 2005.

Background: Motorist sought judicial review of one-year suspension of driver’s license by Department of Transportation, Bureau of Driver Licensing, based on New Jersey arrest and conviction for driving while intoxicated (DWI). The Court of Common Pleas, Bucks County, No. 04-1387-30-6, Cepparulo, J., affirmed suspension, and motorist appealed.

Holding: The Commonwealth Court, No. 1556 C.D. 2004, Friedman, J., held that New Jersey conviction for DWI subjected motorist to one-year suspension of driver’s license in Pennsylvania under law in effect at time of offense.

Robert A. Lechowicz, Telford, for appellant.
Harold H. Cramer, Asst. Chief Counsel, Harrisburg and Joel W. Williams, Asst. Counsel, King of Prussia, for appellee.

BEFORE: COLINS, President Judge, and McGINLEY, Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, and SIMPSON, Judge.

*1 Joseph D. Lepko (Licensee) appeals from the June 22, 2004, order of the Court of Common Pleas of Bucks County (trial court) denying Licensee’s appeal from the one year suspension of his operating privileges imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to sections 3731 and 1532(b)(3) of the Vehicle Code, 75 Pa.C.S. §§ 3731 and 1532(b)(3), and the Driver’s License Compact (Compact), 75 Pa.C.S. § 1581.
On September 17, 2003, Licensee was arrested in New Jersey for driving while intoxicated (DWI), and he was convicted there on December 4, 2003; Licensee had no prior arrests for DWI in any state. On February 3, 2004, DOT notified Licensee that his driving privileges were suspended for one year as a result of the out-of-state conviction. Licensee appealed the suspension to the trial court, which, following a hearing on the matter, issued an order denying Licensee’s appeal and reinstating the previously imposed license suspension. Licensee now appeals to this court. [FN1]
Licensee raises two issues on appeal: (1) whether the trial court erred in reinstating the suspension of Licensee’s operating privileges based upon sections 1532(b)(3) and 3731 of the Vehicle Code when those sections have been amended and repealed, respectively, by the Act of September 30, 2003, P.L. 120, commonly referred to as Act 24; [FN2] and (2) whether the trial court erred by failing to apply the provisions of Pennsylvania’s “new” driving under the influence (DUI) statute, contained in section 16 of Act 24, to determine whether Licensee’s operating privileges should be suspended. [FN3] The relevant provisions of Act 24 became effective on February 1, 2004, and Licensee contends that, as of that date, DOT no longer had authority to suspend a driver’s license on the basis of a first-time DWI offense that occurred in another state prior to Act 24’s effective date.
In its opinion, the trial court thoroughly and correctly analyzed these issues. Accordingly, finding neither an error of law nor an abuse of discretion, we affirm the trial court’s order and adopt the well-reasoned opinion of Judge Albert J. Cepparulo, entered in Commonwealth of Pennsylvania, Department of Transportation v. Joseph D. Lepko (No. 04-1387-30-6, filed August 19, 2004).
AND NOW, this 26th day of April, 2005, the order of the Court of Common Pleas of Bucks County, dated June 22, 2004, is hereby affirmed on the basis of the opinion issued by Judge Albert J. Cepparulo in Commonwealth of Pennsylvania, Department of Transportation v. Joseph D. Lepko (No. 04-1387-30-6, filed August 19, 2004).

Joseph D. LEPKO
No. 04-1387-30-6.

Joseph Lepko has appealed from this Court’s June 22, 2004 Order denying his Appeal from Suspension of Driver’s License and Operator’s Privilege. This Opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
By letter bearing mail date February 3, 2004, the Commonwealth of Pennsylvania, Department of Transportation notified Lepko that his driving privilege was suspended for one year effective March 9, 2004 as a result of his conviction in New Jersey for driving while intoxicated (DWI). Lepko was arrested for DWI in New Jersey on September 17, 2003 and was convicted there on December 4, 2003. Lepko appealed the suspension of his Pennsylvania driver’s license and a hearing was held before this Court on May 11, 2004. The matter was taken under advisement and, on June 22, 2004, this Court issued an Order denying Lepko’s appeal and reinstating the previously imposed license suspension.
Lepko raises two issues on appeal: whether this Court improperly applied 75 Pa.C.S. § 3731 when that section had been repealed and whether this Court erroneously refused to apply Pennsylvania’s “new” driving under the influence (DUI) statute. See Statement of Matters Complained of on Appeal. Combined, Lepko’s issues on appeal amount to a question of whether this Court erred by finding that Lepko’s Pennsylvania driver’s license could be suspended for a first-time DWI offense that occurred in New Jersey prior to the effective date of Pennsylvania’s “new” DUI statute. The “new” DUI law is contained in the Act of September 30, 2003, 2003 Pa. Legis. Serv.2004-24 (West). This legislation is commonly referred to as “Act 24” and the provisions relevant to the instant case became effective on February 1, 2004.
The terms of the Driver’s License Compact of 1996 (the “Compact”), contained in 75 Pa.C.S. § 1581 et seq., control when a Pennsylvania driver is convicted of DUI in another state that has legally joined the Compact. Specifically, Article IV of the Compact reads as follows:
Effect of Conviction
(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for:
* * *
(2) driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;
New Jersey is a party state to the Compact. See N.J.S.A. § 39:5D-1 et seq. Thus, a conviction for DWI in New Jersey is to be given “the same effect” as it would have if a DUI had occurred in Pennsylvania for purposes of license suspension.
Pennsylvania’s DUI law was contained in 75 Pa.C.S. § 3731 until February 2004. Effective February 1, 2004, 75 Pa.C.S. § 3731 was repealed and replaced by 75 Pa.C.S. § 3802. 75 Pa.C.S.A. § 3804 addresses the way in which punishment under the “new” section 3802 is to be implemented. 75 Pa.C.S.A. § 3804(e)(1)(ii) provides that “[t]he department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for:.. (ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under Article III of the compact in section 1581 (relating to Driver’s License Compact).” 75 Pa.C.S.A. § 3804(e)(2) provides that “[s]uspension under paragraph (1) shall be in accordance with the following: … (iii) There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.” 75 Pa.C.S.A. § 3804(e)(2)(iv) says that:
*2 (iv) For suspensions imposed under paragraph (1)(ii), notwithstanding any provision of law or enforcement agreement to the contrary, all of the following apply:
(A) Suspensions shall be in accordance with Subchapter D of Chapter 15 (relating to the Driver’s License Compact).
(B) In calculating the term of a suspension for an offense that is substantially similar to an offense enumerated in section 3802, the department shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under section 3802(a)(2).
Under the “old” statute (75 Pa.C.S. § 3731) all first-time DUI convictions resulted in a one-year suspension of driving privileges. Under the “new” statute (75 Pa.C.S. § 3802) drivers convicted in another Compact state who have never been convicted of DUI before will avoid any suspension of driving privileges because first-time convictions are now treated as violations of 75 Pa.C.S. § 3802(a), which is considered an ungraded misdemeanor. Drivers who are convicted of a second or subsequent DUI will remain subject to suspension of driving privileges.
Act 24 amended 75 Pa.C.S. § 1586, which is the section of the Compact providing that out-of-state offenses for DUI are to be treated as substantially similar to the Pennsylvania offense of DUI. The amended § 1586 simply substitutes “3802” for “3731,” as the number of the Pennsylvania statute that contains the DUI offense. The substitution was necessary because, as previously noted, Act 24 repealed 75 Pa.C.S. § 3731 and replaced it with 75 Pa.C.S. § 3802. Further, Section 21(2) of Act 24 provides that “[t]he repeal of … 75 Pa.C.S. § 3731 shall not affect offenses committed prior to February 1, 2004, or civil or administrative penalties imposed as a result of those offenses.”
Lepko appears to agree that his driving privileges would be properly suspended if his DUI offense and conviction had occurred in Pennsylvania. He argues, however, that 75 Pa.C.S. § 3731 applied only to Pennsylvania arrests and convictions, not to out-of-state arrests and convictions. He further argues that, although Section 21 of Act 24 provides that the new DUI law does not affect Pennsylvania offenses that occurred prior to February 1, 2004, that section failed to mention the Compact or out-of-state convictions. Lepko suggests that the changes in Pennsylvania’s DUI law do affect suspensions resulting from out-of-state convictions for offenses that occurred before February 1, 2004 where the suspension itself is initiated after February 1, 2004. While Lepko’s argument is a creative one, we are compelled to disagree.
Because the suspension of Lepko’s Pennsylvania driving privilege was based on an out-of-state offense and conviction, the suspension is governed by the Compact. Article IV of the Compact clearly mandates that Pennsylvania give the same effect to out-of-state conduct as it would if the conduct had occurred in Pennsylvania. The relevant conduct in Lepko’s case was driving under the influence in New Jersey on September 17, 2003. We are obligated, for purposes of suspending Lepko’s driver’s license, to treat the situation as though Lepko had been arrested for driving under the influence in Pennsylvania on September 17, 2003 and subsequently convicted of DUI in Pennsylvania on December 4, 2003. Had Lepko been arrested and convicted in Pennsylvania, Section 21 of Act 24 would preserve the Department of Transportation’s ability to suspend his driver’s license under the “old” law, 75 Pa.C.S. § 3731. Treating Lepko’s out-of-state conduct and conviction as though they occurred in Pennsylvania, we hold that Lepko’s driving privilege was properly suspended on February 3, 2004.
*3 Allowing the date of the suspension letter or the date of conviction to determine which version of the DUI law applies would not only be unsupported by the law, but would also produce disparate and unjust results for similarly situated drivers whose suspensions were initiated at different times. Under Lepko’s construction of the law, a person arrested and convicted of DUI in New Jersey on the same dates as Lepko would have his or her license properly suspended if the DOT sent his or her suspension letter out before February 1, 2004. He argues, however, that his suspension was improper because the DOT sent his letter after February 1, 2004. Therefore, Lepko advocates treating differently two individuals who violated the same statute at the same time based on the date that the letter notifying the individuals of license suspension was mailed. This result is absolutely untenable because it requires an individual at the time of the offense to guess whether license suspension is a possible consequence of his or her arrest by guessing when the DOT will mail the suspension letter.
In the same vein, using the date of conviction as the relevant date to determine which law applies might result in disparate results for two individuals arrested on the same day for the same offense. Parties and counsel can easily manipulate conviction dates and thereby choose whether to be subject to the “new” or “old” law. Thus, an individual would not know, at the time of arrest, whether license suspension is a possible consequence for him or her because the date of conviction could be manipulated to change the possible punishments. Because using the date of the DUI offense as the applicable date is the only means of ensuring consistent application of license suspensions to out-of-state DUI convictions, and because the statutory language in Pennsylvania supports using the date of conduct as the applicable date, Lepko is subject to Pennsylvania DUI law as it stood on September 17, 2003. The law in effect at that time mandated a one-year license suspension based on his conviction in New Jersey.
The foregoing represents the reasons for this Court’s Order of June 22, 2004.
/s/ Albert J. Cepparulo
Date: 8/17/04

FN1. Our scope of review is limited to determining whether the trial court’s findings are supported by substantial evidence and whether it committed an error of law or abuse of discretion. Laughlin v. Department of Transportation, Bureau of Driver Licensing, 719 A.2d 850 (Pa.Cmwlth.1998), appeal denied, 559 Pa. 670, 739 A.2d 168 (1999).

FN2. Section 1532(b)(3) of the Vehicle Code, as amended by section 7 of Act 24, no longer authorizes suspensions for DWI offenses reported to DOT under the Compact, and section 3731 of the Vehicle Code has been repealed by section 14 of Act 24.

FN3. See 75 Pa.C.S. §§ 3802(a) and 3804(e)(2)(iii).

FN1. No substantive testimony was taken at the hearing held before this Court on May 11, 2004. Instead, counsel for the parties submitted briefs and the case was decided on those submissions.

Lepko v. Com., Dept. of Transp., Bur. of Driver Licensing
2005 WL 946853 (Pa.Cmwlth.)

Category: Muni-Mail Archive

DWI Marijuana Prosecution Requires Expert Testimony – State v. Bealor

This morning’s Appellate Division decision in State v. Bealor provides some important clarifications related to the prosecution of driving while under the influence of marijuana under NJSA 39:4-50(a). The defendant in this case was stopped by troopers as a result of weaving. Evidence at the scene of the stop strongly suggested recent consumption of both alcohol and marijuana. At the State Police barracks, the defendant became increasingly abusive and out-of-control. A urine sample taken from defendant’s body revealed the presence of the metabolite that is found in marijuana. The defendant was convicted in both municipal court and Superior Court on appeal.

The Appellate division reversed the conviction today on the basis that the State never established through expert testimony or specialized lay witness testimony that the defendant was under the influence of marijuana at the time he was operating his motor vehicle. The Court also declined to formulate a pre se rule that would hold that the mere presence of the marijuana metabolite in a defendant’s urine is sufficient evidence to find him guilty of being under the influence of marijuana while driving.

Download a copy of State v. Bealor

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Category: Muni-Mail Archive

Committee Recommends Recording Custodial Interrogations

The New Jersey Supreme today authorized the release of the report on Recordation of Custodial Interrogations. The committee that wrote the report was established as a result of the Court’s decision in State v. Cook, 179 N.J. 533 (2004). The committee recommends that the Supreme court encourage the electronic recording of custodial interrogations in New Jersey by either audio or audio-visual means. The adoption of such a procedure in New Jersey will require significant changes in criminal procedure and will require new court rules, jury instructions and police operating procedures.

The comment period will last until July 1st. The report is attached to this muni-mail. Re-printed below is a summary of the Supreme Court’s press release.

Supreme Court Releases Report on Recordation of Custodial Interrogations

In State v. Cook, which was decided in 2004, defendant argued that due process required the electronic recordation of custodial interrogations as a condition of their admissibility. Although the Supreme Court declined to find such a due process requirement, it concluded that the use of electronic recordation of custodial interrogations should be evaluated by a special committee. On Aug.10, 2004, the Court appointed the Special Committee on Recordation of Custodial Interrogations to undertake that task.

Comments on the Special Committee’s report and recommendations are being sought by the Court for its consideration prior to taking any action. The deadline for the submission of comments is July 1, 2005. Please submit them to the clerk of the Supreme Court at:

Clerk of the Supreme Court
Hughes Justice Complex
POB 970
Trenton, NJ 08625-0970

Comments also may be submitted via e-mail to the following address: [email protected]

The Supreme Court will not consider comments submitted anonymously. Those submitting comments by mail should include their name and address; e-mailed comments must include the submitter’s name and e-mail address. Comments submitted in response to this notice will be maintained in confidence only if the author specifically requests confidentiality. In the absence of such a request, the author’s identity and his or her comments will be made available to the public after the Court has acted on the proposed recommendations.

Download the report

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