Thursday, July 12, 2012

N.J. ATTORNEY GENERAL’S STANDARD STATEMENT FOR MOTOR VEHICLE OPERATORS (N.J.S.A. 39:4-50.2(e)) (revised & effective July 1, 2012)

(revised & effective July 1,  2012)
Enter Defendant’s Name ______________________________________
The police officer shall read the following:
1.  You have been arrested for driving while intoxicated. N.J.S.A. 39:4-50.
2. The law requires you to submit samples of your breath for the purpose of testing to determine
alcohol content.
3.  A record of the taking of the breath samples, including the test results, will be made.  Upon your  request, a copy of that record will be made available to you.
4. After you have provided samples of your breath for testing, you have the right, at your own  expense, to have a person or physician of your own selection take independent samples of your breath,  blood or urine for independent testing.
5. If you refuse to provide samples of your breath, you will be issued a separate summons for the  refusal.  A court may find you guilty of both refusal and driving while intoxicated.
6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license
revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an  Intoxicated Driver Resource Center.  These penalties may be in addition to penalties imposed by the court  for any other offense of which you are found guilty.
7. You have no legal right to have an attorney, physician or anyone else present for the purpose of  taking the breath samples.  You have no legal right to refuse to give, or delay giving, samples of your  breath.  \
8. Any response from you that is ambiguous or conditional, in any respect, to my request that you  provide breath samples, will be treated as a refusal to submit to breath testing.  Even if you agree to take  the test, but then do not follow my instructions, do not properly perform the test, or do not provide  sufficient breath samples, I will charge you with refusal to submit to breath testing.
9. I repeat, the law requires you to submit samples of your breath for testing.  Will you submit the  samples of your breath?
Answer ________________________
If the arrested person does not respond, or gives any ambiguous or conditional  answer short of an  unequivocal “yes,” the police officer shall read the following.
Your answer is not acceptable.  The law requires that you submit samples of your breath for breath  testing.  If you do not answer, or answer with anything other than “yes,” I will charge you with refusal.   Now, I ask you again, will you submit to breath testing?
Answer _______________________

Wednesday, July 11, 2012

NJDOT suspends issuance of violations at 63 intersections where red light cameras are used to enforce the law

NJDOT suspends issuance of violations
at 63 intersections where red light cameras
are used to enforce the law
21 towns in the pilot program ordered to re-certify
timing of yellow lights

(Trenton) - The New Jersey Department of Transportation has directed 21 of the 25 municipalities that are participating in a pilot program to suspend issuing summonses to motorists on the basis of video evidence provided by cameras placed at intersections.
The suspension order affects 63 of the 85 intersections statewide where red light cameras are operating or have been approved for operation. It affects all locations in 19 participating municipalities and one intersection in each of two other municipalities.
The pilot program, authorized by an act of the Legislature in 2008 and implemented beginning in 2009, aims to determine whether red light cameras promote safety by reducing the frequency and severity of crashes at intersections that have a history of motorists running red lights.
NJDOT, which is administering the five-year pilot program, has ordered that the issuance of new violation summonses be suspended at the 63 intersections because it has come to the attention of the Department that the pilot program legislation specifies a formula to determine the proper duration of the yellow light in a traffic signal that differs from the legally required, nationally accepted formula that NJDOT or municipalities use when installing traffic signals. The difference in the formulas may or may not require a longer duration for the yellow light.
Every traffic signal at each of the 85 intersections in the pilot program conforms to the nationally accepted standard used by NJDOT.
However, traffic signals at only 22 of the 85 intersections were certified in accordance with the formula specified in the legislation.
NJDOT has notified the 21 affected municipalities of the variance in the formulas and has directed each to perform an analysis that conforms to the formula in the legislation.
• If the analysis shows that the duration of a yellow light meets the minimum duration as required by the legislation, municipalities will be permitted to issue violation notices for violations that occur during the suspension period, and continue issuing violation notices.

• If the analysis shows that a signal does not display a yellow light long enough to meet the formula in the legislation, that intersection will be removed from the pilot program.
The violation suspension and signal re-certification directives affect all cameras installed at intersections in the following 19 municipalities:
Newark, Linden, Wayne, Palisades Park, Union Township, Springfield (Union County), Roselle Park, Rahway, Englewood Cliffs, Pohatcong, Piscataway, Edison, East Windsor, Lawrence, Cherry Hill, Stratford, Monroe, Brick and Glassboro.
The order affects one location in each of the following two municipalities:
In Jersey City at JFK Boulevard (CR 501) and Communipaw Avenue and Woodbridge at Route 1 and Avenel Street.
Click here for a complete list of the 85 intersections approved for red light camera enforcement.
The intersections not affected by the directives include one in Deptford, one in East Brunswick, four in Gloucester and one in New Brunswick. Additionally, 12 of 13 intersections equipped with cameras in Jersey City and three of four intersections in Woodbridge are excluded from the directives.
NJDOT has directed affected municipalities to conduct their traffic analyses and submit certifications to the Department no later than August 1, 2012.
Yellow time calculations

NJDOT follows the legally required engineering and safety standards in the Manual on Uniform Traffic Control Devices, which requires a minimum duration of the yellow light to equal one-tenth of the posted speed limit on the approaching road. This is a safety standard designed to provide motorists with sufficient time to respond to the yellow light and prevent collisions.
For example, where the approaching road has a posted speed of 40 miles per hour, the signal must display yellow for a minimum of four seconds. NJDOT rounds up to the nearest whole second, so in instances where the approaching speed limit is 45 miles per hour, the signal displays a yellow light for five seconds.
The formula in the legislation to determine pilot-program eligibility requires an analysis of vehicle speeds as they approach the intersection where a red light camera installation is proposed. The formula requires a yellow signal of at least three seconds if at least 85 percent of the approaching traffic travels at speeds of 25 miles per hour or less.
For each five mile-per-hour increase in vehicle speed above 30 miles per hour, the minimum duration of the yellow light must be increased by 0.5 seconds, according to the legislation.
This requirement aims to ensure that the traffic signal is timed properly to provide motorists with sufficient time to avoid a violation and fine by entering an intersection when the light is red.

Friday, July 6, 2012


                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-4657-10T3




February 10, 2012

Submitted January 30, 2012  -  Decided

Before Judges Sabatino and Ashrafi.

On appeal from a Final Decision of the New Jersey Motor Vehicle Commission.

Geldhauser, Shiffman & Rizzo, LLC, attorneys for appellant (John P. Shiffman, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Elaine C. Schwartz, Deputy Attorney General, on the brief).


            Appellant Larissa A. Gethard contests a final agency decision of the New Jersey Motor Vehicle Commission ("MVC") suspending her driver's license for ninety days because she had been convicted in the State of New York for operating a vehicle while her driving ability was impaired.  Because the applicable statutes and published judicial opinions clearly support the MVC's action as a matter of law, we affirm the suspension.
            The pertinent facts and procedural history are uncomplicated and substantially undisputed.  On November 20, 2010, appellant was charged in New York State with driving while intoxicated, N.Y. Veh. & Traf. Law § 1192(3).  On February 7, 2011, she was convicted[1] of the lesser-included offense of driving while impaired, N.Y. Veh. & Traf. Law § 1192(1).  The New York authorities notified the MVC of the conviction, as required by an interstate compact.  N.J.S.A. 39:5D-3.
            On March 18, 2011, the MVC notified appellant that her New Jersey driver's license would be suspended for ninety days starting on April 11, 2011, because she had been convicted in New York for operating a vehicle while impaired.  The ninety-day suspension was the minimum length authorized by statute.  N.J.S.A. 39:4-50(a).  Various customary monetary charges were also imposed, which are not the subject of this appeal.  The notice stated that appellant could request a hearing, but such a request had to specify all legal and factual issues that she wanted to raise, and she had to present all arguments on those issues.  If she did not do so, the request would be denied.  See N.J.A.C. 13:19-1.2(e).
            Appellant's counsel requested a hearing, but he initially did not specify any issues and arguments and therefore his request was denied.  The MVC then issued a superseding notice of suspension, dated May 3, 2011, setting a new date, May 31, 2011, for the suspension.  Appellant's attorney then requested reconsideration of the MVC's denial of a hearing.  This time, he asserted there was a material issue with regard to appellant's offense in New York and whether her license should have been suspended.  He asserted that "the New Jersey Legislature has specifically excluded the acts of this defendant" from violations that require suspension of her New Jersey license.  The request for reconsideration was denied.
            The MVC denied appellant's request to stay the suspension of her license pending this appeal.  However, we granted such a stay of the suspension after the appeal was filed.
            The applicable reciprocity law is as follows.  Pursuant to the interstate compact, as codified in New Jersey at N.J.S.A. 39:5D-3, a state is required, where a non-resident commits a motor vehicle offense, to report that offense to the driver's home state.  N.J.S.A. 39:5D-4 further provides:
(a)        The licensing authority in the home State, for the purposes of suspension . . . 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[.]

Subsection (c) of N.J.S.A. 39:5D-4 further states that if the law of another state does not describe an offense in precisely the same words used in N.J.S.A. 39:5D-4(a), i.e., "[d]riving a motor vehicle while under the influence of intoxicating liquor," the description used in N.J.S.A. 39:5D-4(a) shall be construed to apply to "violations of a substantially similar nature."
            Appellant contends that her conviction in New York for a violation of that state's driving-while-ability-impaired ("DWAI") statute, N.Y. Veh. & Traf. Law § 1192(1),[2] is not "substantially similar" to our State's statute prohibiting driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, specifically, N.J.S.A. 39:4-50 ("DWI").  We rejected that same legal contention in Div. of Motor Vehicles v. Lawrence, 194 N.J. Super. 1, 2-3 (App. Div. 1983), concluding that a New York DWAI conviction was "of a 'substantially similar nature'" as a New Jersey DWI conviction.      More recently, we reached the same conclusion, albeit in a slightly different procedural context involving the treatment of prior offenses for purposes of the repeat-offender provision in N.J.S.A. 39:4-50, in State v. Zeikel, 423 N.J. Super. 34, 44-49 (App. Div. 2011)[3] (finding such substantial similarity, absent "clear and convincing proof" from the licensee, as required by N.J.S.A. 39:4-50(a)(3), that the New York DWAI offenses were based "exclusively" on a blood alcohol content ("BAC") of less than 0.08%).[4]             Appellant argues that Zeikel and Lawrence do not control the result in this case, and that the applicable New Jersey and New York statutes are not, in fact, substantially similar.  She suggests that a New York DWAI conviction should instead be treated in this State like a reckless driving offense under N.J.S.A. 39:4-96, and not as a DWI conviction under N.J.S.A. 39:4-50.  We disagree, substantially for the reasons that have been expressed in Zeikel and Lawrence which are the controlling precedents.

            The MVC's final agency decision is affirmed.  The stay of appellant's driver's license suspension is vacated, effective March 15, 2012, a peremptory date which shall not be extended absent relief obtained by appellant from the Supreme Court.

[1] The record is unclear whether appellant pled guilty to the New York offense or instead was found guilty after a trial.

[2]  Appellant asserted in her submission to the MVC that N.Y. Veh. & Traf. Law § 1192(1) "is based entirely upon a blood-alcohol content of .05-.07."  However, N.Y. Veh. & Traf. Law § 1195(2)b provides that evidence of a blood-alcohol content of more than .05 but less than .07 is relevant evidence, but is not given prima facie effect in determining whether a driver's ability to operate a vehicle was impaired.  Thus, a DWAI conviction in New York may not necessarily be solely based upon blood-alcohol content.  See People v. McDonald, 811 N.Y.S.2d 492, 493 (App. Div. 2006) (affirming the defendant's DWAI conviction based on, among other things, the officer's observations of the defendant and the defendant's admission to consuming alcohol even though the defendant did not submit to a blood-alcohol test).  Additionally, N.Y. Veh. & Traf. Law § 1195(2)c states that evidence of a blood-alcohol content of more than .07 but less than .08 "shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol."

[3] At our invitation, counsel have furnished the court with supplemental briefs addressing the recent decision in Zeikel.

[4]  It is unclear whether the terms of N.J.S.A. 39:4-50(a)(3) affording licensees the possibility of showing that a prior out-of-state conviction should not be treated as a prior offense for purpose of the enhanced penalties in N.J.S.A. 39:4-50 for repeat DWI offenders, can apply to reciprocal suspensions under N.J.S.A. 39:5D-4(a).  Even if, for the sake of argument, those terms were imputed into N.J.S.A. 39:5D-4(a), appellant can obtain no benefit from them on this record.  Like the appellant in Zeikel, appellant in this case also fails to provide clear and convincing proof that her February 2011 conviction in New York for DWAI was based upon a blood alcohol content reading of less than 0.08%.  Although there is a suggestion in the record that appellant's blood alcohol reading in New York may have been between 0.05% and 0.08%, there is no documentary proof supplied that "clearly and convincingly" shows that appellant's level was below 0.08% and that her New York conviction was "exclusively" based upon such a below-0.08% reading and not based, for example, upon observations or other proof of impairment.