Monthly Archives: October 2009

DWI 20-Minute Observation Case Approved for Publication

[10/25/09 – 7:10 pm] The Committee on Opinions has approved the publication of an important “twenty-minute observation” case which is now reported under State v. Filson, 409 N.J. Super. 246 (Law Div. 2009). Unless and until the Appellate Division considers this issue, the holding in Filson will be the guiding case for police, prosecutors, defense counsel and the municipal court bench. The holding in Filson discusses in precise detail the requirement that the police observe a subject who has been arrested for DWI for an uninterrupted period of 20-minutes before having him to submit breath samples for an Alcotest examination. The State maintains the burden of proving the twenty-minute period by clear and convincing evidence. Even a short break in the observation period requires that the officer start observing anew. These and other specific details of necessary police procedure are reviewed in the opinion.

In Filson, the State’s proofs were insufficient to prove this point, due largely to differences between the times recorded on the video, the CAD and the Alcotest unit itself.

Download a copy of State v. Filson is attached to this muni-mail.

Category: Muni-Mail Archive

Chief Justice Roberts Protests DWI Case Rejection – Virginia v. Harris

[10/21/09 – 11:17 pm] In a highly unusual move, United States Supreme Court Chief Justice John Roberts has published a dissent expressing his displeasure in the Court’s rejection of the appeal of a Virginia drunk driving case. The case in question, Virginia v. Harris had been decided by the Virginia Supreme Court. The state court opinion held that when police receive an anonymous tip that a drunk driver is operating a motor vehicle, the police officers may not stop the vehicle until they actually witness the driver do something unsafe on the roadway. Chief Justice Roberts and Justice Scalia both sought to accept an appeal of this decision from Virginia. However, the appeal will not be heard because an insufficient number of additional Justices agreed to hear the case.

In his dissenting opinion, the Chief Justice decried the state court decision and characterized it as allowing drunk drivers “one free swerve” before they can be legally pulled over by the police. Although not unheard of, a dissent stemming from a rejected appeal is an extremely unusual event in the United States Supreme Court.

In New Jersey, our Supreme Court has previously considered this precise issue and has ruled that an uncorroborated tip to the police about an intoxicated driver can constitute sufficient reasonable suspicion for the police to effect a motor vehicle stop of the questioned vehicle. (State v. Golotta, 178 N.J. 205 (2003)).

Download a copy of Virginia v. Harris.

Category: Muni-Mail Archive

A New Reason for the Cops to Stop Your Car – SNOW! NJSA 39:4-77.1

[10/20/09 – 11:05 pm] This morning, the governor signed into law a series of amendments to the provisions of NJSA 39:4-77.1 which will now create a new motor vehicle offense of operating a motor vehicle with accumulated snow or ice on the vehicle. This includes all areas of the vehicle, such as hood, trunk, windows and windshield. New Jersey police are authorized under the new statute to stop motor vehicles with accumulated snow and ice that are being operated on a street or highway when the officer feels that the vehicle poses a danger to persons or property. This non-point violation carries a daily fine between $25 and $75.

Download a copy of NJSA 39:4-77.1.

Category: Muni-Mail Archive

Compassion for Family Earns retired Judge a Reprimand

[10/13/09 – 10:14 am] The New Jersey Supreme Court has issued a reprimand for a retired Superior Court judge. In an order dated October 8, 2009, the Justices reprimanded retired Judge Charles Delehey for an incident where the judge conducted a brief, in-chambers conference with family members of a defendant who had a case pending before the judge. During the conference, the judge expressed compassion for the hurt the family was feeling and suggested that the plea agreement that had been offered by the State was a good one. Further, the judge stated that, although the defendant had rejected the offer, “maybe you can convince him otherwise, but if there is one thing I have learned, it is that people make decisions for their own reasons, not for mine.” The judge went on to explain, “[I]t would seem to me its in your brother’s best interest to take it because if he is convicted at a later date, even if he gets a concurrent sentence, it will be so [sic] along in his first sentence that it’ll be….the effect of it will be a consecutive sentence.” The judge then added, “Maybe you could make some sense to him.” The Advisory Committee on Judicial Conduct (ACJC) considered the judge’s explanation that he made the communication to the family based upon sympathy but recommended that he be reprimanded.

Simply click to download a copy of the ACJC presentment and Supreme Court order.

Category: Muni-Mail Archive

United States Supreme Court Opens New Term This Morning

[10/05/09 – 10:50] Within the last hour, the Supreme Court began its 2009-2010 term. Several high-profile cases will be argued this week and next, among which are several of special interest to subscribers:

Simple Assault/Domestic Violence – Johnson v. (08-6925)

Oral argument: Oct. 6, 2009

Curtis Darnell Johnson was convicted of possession of ammunition by a convicted felon. Because he had been previously convicted of three felonies, one of which was a battery involving possible touching of another person, the prosecution sought to sentence him under the Armed Career Criminal Act (“ACCA”). The ACCA is a federal law that imposes a minimum sentence of fifteen years in prison on criminals who have at least three violent felony convictions. Johnson appealed his sentence, claiming that a battery potentially caused by touching another person did not meet the physical force requirement of the ACCA to be considered a violent felony. The Supreme Court must now decide whether a battery conviction that may have arisen from one person simply touching another meets the physical force requirement of the ACCA. The Supreme Court’s decision in this case will influence not only the ACCA but other federal laws, especially domestic violence statutes that use the physical force requirement. It may also affect the importance of the rule of lenity.

This case will be of particular importance to N.J. defense attorneys in advising clients in prosecutions for simple assault and harassment.

Category: Muni-Mail Archive

New Statutory Immunity for Under-Age Drinkers Signed into Law

[10/02/09 – 10”45 pm] The governor’s has signed into law an amendment to NJSA 2C:33-15 that will provide statutory immunity to certain individuals who consume alcoholic beverages while under the legal age to do so. NJSA 2C:33-15 generally prohibits either the consumption or possession of an alcoholic beverage by a person under the age of 21. The offense is a disorderly persons’ offense and carries a minimum fine of $500. Conviction also requires a six-month suspension of driving privileges when the offense occurs in a motor vehicle. Under the amendment that goes into effect today, a statutory immunity will apply when:

(1) one of the underage persons called 9-1-1 and reported that another underage person was in need of medical assistance due to alcohol consumption;
(2) the underage person who called 9-1-1 and, if applicable, one or two other persons acting in concert with the underage person who called 9-1-1 provided each of their names to the 9-1-1 operator;
(3) the underage person was the first person to make the 9-1-1 report; and
(4) the underage person and, if applicable, one or two other persons acting in concert with the underage person who made the 9-1-1 call remained on the scene with the person under the legal age in need of medical assistance until assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.
The underage person who received medical assistance also shall [also] be immune from prosecution under NJSA 2C:33-15..
The amendment is intended to encourage the intervention of emergency rescue personnel in instances where intoxication has resulted in illness.

Category: Muni-Mail Archive

Mandatory CLE Proposed to Begin in 84 Days : Supreme Court

[10/08/09 – 3:58 pm] This morning, the New Jersey Supreme Court released a proposed new Rule which will establish the requirement for mandatory continuing legal education by all members of the bench and bar. The proposed Rule 1:42-1 will require the completion of 24 credit hours of continuing legal education over a 2-year period. Four of these credits must be related to ethics issues. Rule 1:42-2 establishes the administrative framework for the mandatory CLE program. The proposed Rule establishes a Board on Continuing Legal Education made up of 11 members of the bar, three of whom must also serve on the Attorney Certification Board. All of the fees, approval of CLE courses and requirements for licensed CLE providers will be implemented by the new CLE board.

As an adjunct to the proposed new Rules of Court, the Supreme Court also issued an administrative determination related to the Report of the Ad Hoc Committee on Continuing Legal Education (The Verniero Committee). The administrative determination provides modifications and rejections of certain of the recommendations made by the Verniero Committee and will be implemented by virtue of Rule 1:42-1 and Rule 1:42-2. Compliance with the new requirement for continuing legal education will begin on January 1, 2010.

Public comments related to the proposed new Rule 1:42 can be sent to the following address:

Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Hughes Justice Complex
P.O. Box 037
Trenton, N.J. 08625

Click here to download a copy of the Administrative Determination.

Click here to download a copy of proposed Rule 1:42.

Category: Muni-Mail Archive