Monthly Archives: April 2010

DWI Ticket no “BAR” to Suing Saloon – Voss v. Tranquilino

[04/28/10 – 10:24 pm] In this morning’s Appellate division decision in Voss v. Tranquilino, the Appellate Division ruled that a drunk driving conviction under NJSA 39:4-50(a) does not pose a bar to the intoxicated driver from filing a dram shop suit against the tavern that served him the intoxicating liquor. According to the Court:
“N.J.S.A. 39:6A-4.5(b) provides that a driver of a motor vehicle who is convicted of or pleads guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), 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.” The issue in this appeal is whether this statutory provision bars a dram shop claim by an intoxicated motorist against a liquor licensee that allegedly served him alcoholic beverages when he was visibly intoxicated prior to the motor vehicle accident. Although a literal reading of the statute suggests that all claims are barred, we reach a contrary conclusion. We hold that N.J.S.A. 39:6A-4.5(b) does not bar a dram shop claim because (1) the purpose of the statute is to reduce automobile insurance premiums and its scope should be limited accordingly to losses that are subject to coverage under Title 39; (2) an interpretation barring dram shop claims would unjustifiably constitute repeal by implication of a portion of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7, commonly referred to as the “Dram Shop Act”; and (3) immunizing liquor licensees from liability in such circumstances would be inimical to the policy of this State of curbing drunk driving.”

Download a copy of Voss v. Tranquilino.

Category: Muni-Mail Archive

Pros Misconduct to Vouch for Cop’s Crediibility at Trial – State v. Murphy

[4/22/10 – 11:27 am] In an opinion that is of vital importance to prosecutors, the Appellate Division this morning ruled that it is improper for a prosecutor to attempt to vouch for the credibility of a police witness in summation. In Murphy, the prosecutor noted during summation that the officer who had testified in the case had no stake in the outcome of the trial and no reason to lie. In granting a new trial, the Court held that

“[c]redibility was the critical issue in the case,” and the
“State’s entire case rested on the testimony of the officer[.]
When a jury must choose which of two opposing versions to
credit, it simply cannot be said that the evidence is
overwhelming.” Thus, when “the jury’s determination hinged
completely on whether the jurors believed the officer[‘s]
testimony or [defendant’s] testimony,” a prosecutor’s remark
that exceeds the bounds of legitimate advocacy can never be
deemed harmless.

In addition, the Court also ruled that a 17-year old conviction should not have been used to impeach the testimony of the defendant during trial.

Download a copy of State v. Murphy.

Category: Muni-Mail Archive

Muni-mail – Error by Police Dispatcher Results in Suppression of Evidence – State v. Handy

[04/12/10 – 2:10 pm] In this morning’s decision by the Appellate Division in a case captioned State v. Handy, the Court ruled that negligence by a police dispatcher in not properly advising arresting officers required the suppression of evidence in the form of illegal drugs. In Handy, the police called in for a warrant check on a person they had lawfully detained. The dispatcher reported an active warrant but did not advise the police that the pedigree information the officers had provided on the arrestee did not properly match up against police records. On the basis of the bad information provided by the dispatcher, the police arrested the suspect and found illegal drugs It was later discovered that there was no active warrant for the person the police had arrested and the purported warrant was most likely for another person. In ruling the evidence suppressed, the Court cited the need under our State Constitution to deter negligent actions by police and those working for them that result in illegal arrests and unreasonable searches.

Download a copy of State v. Handy.

Category: Muni-Mail Archive

Muni-mail – Ignition Interlock Devices for Dummies – NJSA 39:4-50.17

[04/05/10 – 12:56 pm] On January 14th, an amendment to the state’s drunk driving laws went into effect that changes the requirements for the use of the so-called ignition interlock devices by people who have been convicted of drunk driving and refusal to submit to a breath test. The following will help explain how the new law works.

1. With one exception, following a conviction for drunk driving, the municipal court judge must order that the defendant both install an interlock device on the vehicle he principally operates and refrain from operating any vehicle that is not so equipped. This obligation begins immediately upon the pronouncement of sentence and continues for a determinate period after the defendant gets his driving privileges restored by the MVC. Suspension of registration privileges as an alternative is not longer available under the new statute.

2. The sole exception to this procedure occurs in the case of a first offender who has a BAC of less than .15%. This would include cases where there is no BAC evidence available due to exclusion, refusal and the like. In those instances, the judge has an option as to whether or not to order the interlock device. If the judge so orders, the obligation to use it does not begin until the suspension period is over.

3. For a first offense, the term of the interlock ranges from 6 moths to one year.

4. For second and subsequent offenders, the term of the interlock ranges from 1 year to three years.

5. All refusal convictions require installation of the interlock upon the pronouncement of sentence with a term that tracks the first, second and subsequent offender terms for DWI convictions.

6. School Zone – The school zone offense set forth in NJSA 39:4-50(g) has no interlock provision. However, since the DWI penalties under NJSA 39:4-50(a) would normally survive the merger into a greater-included offense, it is likely that the interlock requirements apply to school zone offenses as a matter of law.

7. What is an interlock device? – The interlock is a computer-type device that is installed on the vehicle by a licensed N.J. technician. A person who wishes to start a vehicle equipped with the device must blow a breath sample into it. If the device detects a BAC level of .05% or greater, it will not permit the vehicle to start for 1 hour. The device also requires periodic samples while the vehicle is being driven. If the device detects a BAC of .05% or greater, it will emit a loud noise and sound the vehicle’s horn non-stop in an effort to persuade the driver to pull over. Once the vehicle is turned off, it will not restart for an hour. The data on the device must be downloaded every 60-days by the technician for filing with the MVC. At that time, the driver can normally pay the maintenance fee. Special discounts are required for poor people.

8. The technical sentencing provisions are set forth under N.J.S.A. 39:4-17(a) et. seq

Category: Muni-Mail Archive