Monthly Archives: May 2011

Muni-mail – “I’ll take the test” + No Samples = REFUSAL – State v. Schmidt

[05/26/11 – 11:58 pm] In this morning’s Supreme Court decision in State v. Schmidt, the Justices ruled that once a person gives his initial consent to providing a breath sample, no further action by the police is necessary to provide additional warnings to him in the event he does not provide adequate breath samples. InSchmidt, the police arrested for drunk driving and, prior to administering a breath test, read him the first portion of the standard statement required under NJSA 39:4-50.2(e) (aka paragraph 36). The defendant consented to taking a breath test, but thereafter was either unwilling or unable to provide adequate breath samples. The defendant claimed on appeal that the police should have read him the second portion of paragraph 36 before charging him with the refusal offense. However, the Court held that once the defendant consented to taking the test, no other warnings were required. The Court went on to advise the attorney general that it might be a good idea to amend the first part of paragraph 36 to include language instructing defendants that the failure to provide an adequate breath sample will be considered a refusal to submit to a breath test.

Download a copy of State v. Schmidt.

Category: Muni-Mail Archive

Muni-mail – Do Flashing Police Lights Mean Don’t Leave the Scene? – State v. Adubato

 [05/23/11 – 11:59 pm] This morning, in a case captioned State v. Adubato, the Appellate Division ruled that a motorist who had parked his vehicle in front of his own residence was not necessarily detained by the police when they pulled up behind his vehicle and initialized their overhead lights. In Adubato, the police responded to a telephone call that reported a vehicle riding around the neighborhood, repeatedly stopping. The caller also suspected that the operator was intoxicated. The police pulled up to a stopped vehicle and noted that the driver was out of the vehicle. The police activated their overhead lights and began to question the driver. His intoxicated state was immediately apparent to the police who subsequently arrested him. The Appellate Division ruled that the use of overhead lights by police do not necessarily imply either detention or arrest. Rather, among the many purposes for the use of these lights is officer safety. Thus, the actions by the police in stopping to speak to the motorist were reasonable as either an inquiry or as a community caretaking function.

Download a copy of State v. Adubato.

Category: Muni-Mail Archive

Muni-mail – SCOTUS Announces New Rule for Warrantless Home Entry – Kentucky v King

[0/5/22/11 – 12:04 am] Last Monday, the United States Supreme Court ruled that police officers do not create their own exigent circumstances by knocking and announcing their intention to make a warrantless entry into a residence in order to prevent the destruction of evidence. In a case captioned Kentucky v. King, the Justices described how police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. The cops smelled marijuana outside anapartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search.
The Justices noted that normally, the combination of probable cause and exigent circumstances will permit police to make a warrantless entry into a residence. Once exception to this rule of law occurs when the exigent circumstances have been created by the police themselves as a result of their investigative techniques, However, in the King case, the Court ruled that when the police act reasonably by neither violating nor threatening to violate the 4th Amendment, they do not create their own exigent circumstances. In this case, the fact that the police knocked and announced their presence was reasonable and did not create any police-initiated exigency.

Download a copy of Kentucky v. King.

Category: Muni-Mail Archive

Muni-Mail – Important New Rules for Notice in Drug Cases – State v. Heisler

[05/18/11 – 5:10 pm] – Yesterday, in a case captioned State v. Heisler, the Appellate Division established an important new procedure to be utilized in drug prosecutions in both the municipal and Superior courts. The case involved a dispute in municipal court as to the correct notice procedures under NJSA 2C:35-19. The Court construed the statute to require the following: At least 20-days before trial, the State must put the defense on notice of its intent to utilize documentary evidence from a forensic laboratory to prove the composition of the drugs that are the subject of the prosecution. Formerly, upon receipt of the notice of intent, the defendant had been afforded 10-days to file an objection to the use of the documentary evidence and demand the personal testimony of the person who tested the drugs. Under the new procedure established yesterday by the Appellate Division in Heisler, the 10-day period to file an objection by the defense does not begin to run until the defendant has been served by the prosecutor with BOTH a notice of intent to offer AND the results of the laboratory test. The failure of the State to follow this procedure will result in a bar at trial to the admission of the documentary drug evidence.

Click here to download State v. Heisler.

Category: Muni-Mail Archive

Muni-mail – CDL Refusal & DWI Refusal NOT the same – State v. Nunnally

 [05/04/11 – 11:33 pm] This morning, in a case captioned State v. Nunnally, the Appellate Division ruled that there are a number of distinct differences betweeen the general DWI refusal statute under NJSA 39:4-50.4a and the commercial driver DWI refusal statute under NJSA 39:3-10.24. The differences are so vast, that the commercial refusal is not a lesser included offense of the general statute. Moreover, a person who has been arrested for drunk driving in a commercial vehicle under NJSA 39:3-10.13 may only be prosecuted under the CDL refusal statute and not the general refusal statute.

The Nunnally case is critically important in that it is the first time the Appellate Division has contured in any detail the offenses of drunk driving and refusal to submit a breath test in a commercial motor vehicle.

(Download a copy of State v. Nunnally.)

Category: Muni-Mail Archive

Muni-mail – YOU’RE FIRED! Tampering results in loss of public office – State v. Kennedy

[05/02/11 – 10:33 pm] This morning, in a case captioned State v. Kennedy, the Appellate Division ruled that the criminal offense of tampering with physical evidence is a crime involving dishonesty. As a result, the defendant, who was a public employee is required to forfeit his public employment. In this case, the defendant was convicted of tampering by swallowing heroin that the police found in his possession. Although the criminal misconduct did not relate to his public employment with a municipality, the Court ruled that forfeiture is mandatory because tampering with physical evidence is, as a matter of law, an offense involving dishonesty.

It is important to note that this is only the second time that the Appellate Division has had the occasion to rule on whether the violation a particular statute constitutes an offense involving dishonesty. The previous decision, State v. Musto, 188 NJ Super. 106 (App. Div. 1983) was published 28 years ago. All of the other forfeiture of public office case law relates to the concept of “touching on the public office”.

(Download a copy of State v. Kennedy.)

Category: Muni-Mail Archive

Muni-mail – “Surrogate” Witnesses barred in criminal trials – State v. Rehmann

[05/01/11 – 10:33 pm] On Friday morning, in a case captioned State v. Rehmann, the Appellate Division ruled that the supervisor of a state police laboratory technician would be permitted to testify at the defendant’s drunk driving trial, even though the supervisor did not personally test the defendant’s blood sample. The Court reasoned that confrontation clause considerations normally require that all fact witnesses who testify have personal knowledge about the substance of their testimony. As a result, surrogate witnesses are not permitted at criminal trials. However, in this particular case, the supervisor was no surrogate witness. He had watched the technician perform the test of the blood sample and had extensive, detailed perrsonal knowledge about how the testing had been performed. According to the Court, “[T]he Confrontation Clause is not satisified by calling just anyone to the stand to testify about laboratory tests or other scientific results. A ‘straw man’ will not do. The State must provide a witness who has made an independent determination as to the results offered.”
It is important to note that this is the first time this precise issue has been considered by a New Jersey court. The identicial issue is currently before the United State Supreme Court and will be decided later this term. (Bullcoming v. New Mexico, 131 S. Ct. 62 (2010)).

Download a copy of State v. Rehmann.

Category: Muni-Mail Archive