Monthly Archives: January 2007
Earlier today, the governor signed into law the provisions of S-997. Effective immediately, NJSA 39:4-131, as amended, requires police agencies to send accident reports through the mail or via fax upon request. The police may require as a condition that the person making the request complete a request form and pay the appropriately authorized fee set forth in the statute. The text of the amended statute with the new text highlighted is as follows:
The commission shall prepare and supply to police departments and other suitable agencies, forms for accident reports calling for sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved, the compliance with P.L.1984, c.179 (C.39:3-76.2e et seq.) by the operators and passengers of the vehicles involved in the accident, whether the operator of the vehicle was using a cellular telephone when the accident occurred, and such other information as the chief administrator may require.
Every law enforcement officer who investigates a vehicle accident of which report must be made as required in this Title, or who otherwise prepares a written report as a result of an accident or thereafter by interviewing the participants or witnesses, shall forward a written report of such accident to the commission, on forms furnished by it, within five days after his investigation of the accident.
Such written reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by section 6 of P.L.2001, c.404 (C.47:1A-5). If copies of reports are requested other than in person, an additional fee of up to $5.00 for the first three pages and $1.00 per page thereafter may be added to cover the administrative costs of the report. Upon request, a police department shall send an accident report to a person through the mail or via fax as defined in section 2 of P.L.1976, c.23 (C.19:59-2). The police department may require the person requesting the report to provide a completed request form and the appropriate fee prior to faxing or mailing the report. The police department shall provide the person requesting the report with the option of submitting the form and providing the appropriate fee either in person, through the mail, or via fax as defined in section 2 of P.L.1976, c.23 (C.19:59-2).
The provisions of any other law or regulation to the contrary notwithstanding, reports obtained pursuant to this act shall not be subject to confidentiality requirements except as provided by section 28 of P.L.1960, c.52 (C.2A:84A-28).
This morning, the New Jersey Supreme Court ruled that the taking of DNA samples from people who have been convicted of crimes or who have been adjudicated as delinquent is valid under both the New Jersey and federal constitutions. The Court’s holding was set forth in two companion cases, State v. O’Hagen and A.A. v. Attorney General. In analyzing the issues, the Justices decided that the taking of a DNA sample from a convicted criminal defendant under the New Jersey DNA Database and Databank Act of 1994 (NJSA 53:1-20.17-20.28) constituted a “special needs” search which was reasonable under both the 4th Amendment as well as Article I, paragraph 7 of the State Constitution of 1947. The Justices also ruled that DNA evidence on file with law enforcement can be used to solve crimes that were committed before the DNA sample was submitted.
Download a copy of State v. O’Hagen.
Assuming there will be no appeal, this morning’s Appellate Division decision in State v. Reid will be regarded as a landmark decision. In Reid, the police obtained information related to a suspect’s on-line screen name by simply serving a subpoena duces tecum issued out of municipal court upon the internet service provider (ISP) provider, Comcast. At the time the subpoena issued, there was no pending municipal court case, nor was the court in session during the return date and time specified on the subpoena. Comcast complied with the subpoena and provided the information to the police which ultimately lead to the arrest of the defendant.
The Appellate Division rejected the investigative procedure utilized by the police in this case. The use of a subpoena duces tecum issued by a court that had no jurisdiction over the offense under investigation and was not in session on the return date of the subpoena was entirely improper.
Beyond this, however, the Court also ruled that people in New Jersey have an expectation of privacy in their internet screen names under the New Jersey Constitution. In so holding, the Court distinguished an earlier Supreme Court case, State v. Evers, 175 N.J. 355 (2003) which seemed to imply that there was no such expectation of privacy. This ruling adds to the pantheon of cases where people in New Jersey receive more protection under Article I, paragraph 7 of the State Constitution of 1947 than they would otherwise receive under the IVth Amendment to the United States Constitution. As a result of this case, it appears that police who require information related to a screen name from an ISP will have to obtain either a search warrant, a grand jury subpoena or an order to produce from the Superior Court based upon a showing of probable cause.
Download a copy of State v. Reid.
In today’s Supreme Court decision in State v. Dispoto, the Justices invalidated a controversial ruling by the Appellate Division. The Appellate Division had previously held that if police provide Miranda warnings to a criminal suspect who has not been arrested, those warnings are ineffective once the suspect has been arrested and must be repeated prior to a custodial interrogation.
In rejecting this holding, the Supreme Court declined to create any “bright-line” or per se rule regarding providing Miranda warnings to suspects who have not yet been arrested. Rather, the Court noted that it will use a “totality of the circumstances” test on a case by case basis to see whether new Miranda warnings should be applied following the arrest of the defendant.
The Dispoto decision is also a domestic violence (DV) case during which the investigating police obtained a DV search warrant to recover weapons. The warrant was issued on clearly insufficient evidence. During the ensuing search for weapons, the police developed probable cause to seek a criminal search warrant which led to the recovery of a substantial amount of illegal drugs. The Justices held that the police may not use a wrongfully granted DV search warrant to boot-strap their criminal investigation.
Download a copy of State v. Dispoto
In today’s Appellate Division decision in State v. Liviaz, the court held that while it is improper for a prosecutor to reject a PTI application solely on the basis that the applicant is in the United States illegally, the illegal immigration status of the PTI applicant, coupled with the steps he has taken to maintain his illegal status in our country are relevant factors that can justify rejection from the program. The case also presents a good overview of the standards for PTI rejection by prosecutors and the highly circumscribed review of the exercise of prosecutorial discretion that appellate courts will exercise when review a PTI rejection.
Download a copy of State v. Liviaz