New Jersey Municipal Court and Criminal Interview Form |
PLEASE FILL OUT BOTH PAGES OF OUR CONFIDENTIAL INTERVIEW FORM AND FAX OVER TO OUR OFFICE at FAX # (732) 572-0030.
KENNETH VERCAMMEN & ASSOCIATES, PCATTORNEY AT LAW 2053 WOODBRIDGE AVENUE EDISON, NJ 08817 732-572-0500 PLEASE PRINT NAME ____________________________________________________ ADDRESS _________________________________________________ CITY _______________________ STATE ____ ZIP ______________ CELL #(_____)_________________ PHONE-DAY(____)________________ NIGHT (______)_________________ TODAYS DATE ____/_____/_____ E-MAIL ________________________ Referred By: __________________________________ If referred by a person, is this a client or attorney? CHARGES/TICKETS ISSUED [provide tickets, hearing notice and other important papers to front desk to be copied] 1. ____________________________________________________ 2. ____________________________________________________ 3. ____________________________________________________ 4. ____________________________________________________ IMPORTANT INFORMATION Date of Offense: __________________ Time: _____ (A.M./P.M.) Your Age _____ Town: ___________________________ (street/location)?________________________ What Happened: ______________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ Write additional details on the back of this page. Other Persons Arrested or Witnesses: _______________________________________________________________________ co-defendant/ Witness Name Their Address Phone No. _______________________________________________________________________ Name Address Phone No. What statements did you give to the police? ____________________________________ ________________________________________________________________________ ________________________________________________________________________ Occupation: _____________ Employer: _______________ Town: ________ Do you need your drivers license for work? _______ Distance driven to work: _______ Prior criminal convictions or arrests (include description of each charge, date of conviction, and place of conviction. If none, write none): ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ Prior motor vehicle convictions, town and year(ex: drunk driving, no insurance, driving while suspended, etc. If none, write none): ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ Prior Traffic ticket downgrades to no point tickets since 1999 [39:4-97.2]: 1. Town _______________________ Year ___________ [if none, write none] 2. Town _______________________ Year ___________ [Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years.] What questions do you have/ how can we help you and anything else important: ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ All new clients are entitled to receive our Free Email Newsletter featuring updates in Traffic Law, Criminal and Personal Injury. All paid clients receive a T-shirt upon request. This page must be filled out before meeting with the attorney. Thank you. YOU MUST FILL OUT ALL THE PREVIOUS QUESTIONS PRIOR TO SEEING THE ATTORNEY. Thank you for contacting Kenneth Vercammen & Associates, PC for representation in a Municipal Court matter. Legal Services To Be Provided- Please read! 1. Office consultation with client 2. Preparation of statement to provide legal services [ retainer agreement ] setting forth fees and work to be performed; 3. Offer sound legal advice to client; 4. Preparation of letter of representation to Municipal Court after fee paid; 5. Preparation of letter of representation to Municipal Court Prosecutor; 6. Review documents supplied by client and court; 7. Copies of all correspondence to Court and Prosecutor to client; 8. Opening of file and client may have free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure; 9. Review of necessary statutes and case law; 10. Follow up with Municipal Prosecutor for discovery if suspension or jail is likely; 11. Prepare defense and mitigating factors; 12. Miscellaneous correspondence, drafting of brief/ pleadings if needed; 13. Review Court hearing notice and send letter to client to remind them of hearing 14. Travel to Municipal Court and Representation in Municipal Court. 15. Preparation of End of Case Letter with client questionnaire. 16. Free Brochures provided on other legal topics such as Personal Injury, Workers Comp, Wills, Probate and other matter we help clients 17. Free subscription to monthly e-mail newsletter providing legal updates and Invitations to client socials 19. Answer specific questions after the case is over 18. Free T-shirts, Can Koozie, Water bottle for clients - Please ask. 20 Free Magnets, USA Keychains, USA Flag Calendar We will review and research necessary statutes and caselaw, speak with the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve solutions which are just and reasonable for you. Legal Fees. Fees are to be paid at initial consultation (today). Fees must be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen Law Office today. Fees must be paid in full prior to a Letter of Representation being sent to the Court. Neither this office nor other area attorneys accept payment plans if the fees are less than $2,500. Fees are not reduced and not negotiable. Under the NJ Rules of Professional Conduct and Court Rules, we cannot send a letter of representation to the court until the Retainer is paid in full What you should do: After you have retained [paid] your attorney, call the court, plead not guilty. In traffic tickets, the phone number is on the back of the ticket. Judges will often ask you how many tickets you have had in the past 5 years. You want to be accurate with your response. In traffic matters we recommend you contact DMV, now Motor Vehicle Commission and obtain a drivers license abstract. Call 888-486-3339 or 609-292-6500. Please note the DMV/MVC only permits 2 "no point" downgrades in 5 years. If you have 2 downgrades to unsafe driving 39:4-97.2, you must wait 5 years for another downgrade to unsafe driving 39:4-97.2. If you do not wait 5 years, the MVC computer will impose 4 points against you. |
Monday, January 30, 2017
New Jersey Municipal Court and Criminal Interview Form
Driving While Suspended New Fines & Jail NJ
Driving While Suspended New Fines & Jail |
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Driving While Suspended Fines and Jail 39:3-40 Offense 39:3-40 driving while license suspended- general provision 1st Offense - $500 fine, and - drivers license suspension not to exceed 6 months -9 car insurance eligibility points for each violation $750 DMV surcharges 2nd Offense - $750 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment 1- 5 days, -9 car insurance eligibility points for each violation $750 DMV surcharges and - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) 3rd or Subsequent Offense - $1000 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment for 10 days, -9 car insurance eligibility points for each violation $750 DMV surcharges and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) Note: For all offenses under this statute that involve an accident resulting in personal injury to another, the court is required to impose a period of imprisonment for not less than 45 days, or more than 180 days. N.J.S.A. 39:3-40(e). If the accident results in the death of another person, then the defendant shall be guilty of a crime of the third degree and the defendants drivers license shall be suspended for an additional period of one year. If the accident results in serious bodily injury to another person, then the defendant shall be guilty of a crime of the fourth degree and the defendants drivers license shall be suspended for an additional period of one year. Offense 39:3-40 (f) (1) [no insurance suspensions] driving while license suspended due to conviction for N.J.S.A. 39:6B-2 (driving without insurance) 1st Offense - $1000 fine, and - drivers license suspension not less than 12 months, nor more than 30 months, and - may impose incarceration not to exceed 90 days $750 DMV surcharges -9 car insurance eligibility points for each violation 2nd Offense - $1250 fine, and - drivers license suspension of not less than 12 months nor more than 30 months, and - may impose period of incarceration of not more than 90 days, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 2nd offense occurs within 5 years of a conviction for 39:3-40, then revocation of registration certificate for period drivers license is suspended (see N.J.S.A. 39:3-40.1) 3rd or Subsequent Offense - $1500 fine, and - drivers license suspension of not less than 12 months nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed "notwithstanding" the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(3), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart. Offense 39:3-40 (f) (2) [DWI suspensions] driving while license suspended due to conviction for: - 39:4-50 (driving while intoxicated), or - 39:4-50.4a (refusal to submit to chemical test), or - 39:5-30a to -30e (habitual offender) 1st Offense - $1000 fine, and -drivers license suspension of not less than 12 months, nor more than 30 months, and -incarceration of not less than 10 days, nor more than 90 days, and -revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation 2nd Offense -$1250 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, and - revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation 3rd or Subsequent Offense - $1500 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 10 days, nor more than 90 days, and - revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed "notwithstanding" the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(30), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart. Offense 39:3-40 (f) (3) [School Zone suspensions] driving while license suspended due to conviction for N.J.S.A. 39:4-50 or 39:4-50.4a, while driving in a school zone, or driving through a school crossing 1st Offense - $1000 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 60 days nor more than 90 days $750 DMV surcharges -9 car insurance eligibility points for each violation 2nd Offense - $1250 fine, and - drivers license suspension for not less than 12 months, nor more than 30 months, and - incarceration of not less than 120 days nor more than 150 days - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) $750 DMV surcharges -9 car insurance eligibility points for each violation 3rd or Subsequent Offense - $1500 fine, and - drivers license suspension for not less than 12 months, nor more than 24 months, plus may impose additional suspension not to exceed 6 months - incarceration for 180 days, and - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of violators registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) Note: The fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are imposed "notwithstanding" the general penalty provisions listed above. This chart is based on the assumption that the fines and penalties set forth in N.J.S.A. 39:3-40(f)(1)-(3) are in addition to those found in N.J.S.A. 39:3-40(a)-(e). This reading of the statute is suggested by State v. Wrotny, 221 N.J. Super. 226, 228-30 (App. Div. 1987), though Wrotny does not explicitly hold as much. For a contrary reading of N.J.S.A. 39:3-40(f)(1)-(3), see State v. Walsh, 236 N.J. Super. 151, 155 (Law Div. 1989), and State v. Rought, 221 N.J. Super. 42, 47 (Law Div. 1987), which both held that the fines and penalties of N.J.S.A. 39:3-40(f)(1)-(3) are a substitute for those provided by N.J.S.A. 39:3-40(a)-(e). Before imposing sentence for a conviction under N.J.S.A. 39:3-40(f)(1)-(3), please consult these cases and any other relevant cases decided after the date of this chart. Offense 39:3-40 (g) [Surcharge Suspensions] driving while license suspended for failure to pay surcharges under N.J.S.A. 17:29A-35 1st Offense - $500 fine, and - drivers license suspension not to exceed 6 months, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed -9 car insurance eligibility points for each violation 2nd Offense - $750 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment not more than 5 days, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed, $750 DMV surcharges -9 car insurance eligibility points for each violation and - if 2nd offense occurs within 5 years of a conviction for N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) 3rd or Subsequent Offense - $1000 fine, and - drivers license suspension not to exceed 6 months, and - imprisonment for 10 days, and - $3000 fine to be collected by DMV. Fine to be waived upon payment of total surcharge imposed $750 DMV surcharges -9 car insurance eligibility points for each violation - if 3rd offense occurs within 5 years of a conviction of N.J.S.A. 39:3-40, then revocation of registration certificate for the period drivers license is suspended (see N.J.S.A. 39:3-40.1) Speak with an experienced attorney to determine possible rights, defenses and mitigating factors. |
39:4-1 Traffic Violations 4 Points or Less NJ
39:4-1 Traffic Violations 4 Points or Less | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. TRAFFIC REPRESENTATION AND NO POINTS TRAFFIC VIOLATIONS 4 POINTS OR LESS N.J.S.A. 39:4-1- WE GO TO COURT TO TRY TO NEGOTIATE FOR NEW NO POINT TICKET Our office helps people with traffic/ municipal court tickets. We provide representation on most Central New Jersey traffic cases. Motor vehicle violations and criminal charges can cost you. If you plead guilty by mail or in court for almost all traffic tickets, you will have to pay fines in court and will later receive points on your drivers license. Both the DMV and your car insurance company will impose surcharges and eligibility points for three years. Under the New Jersey Court Rules, a New Jersey Attorney can negotiate with the Municipal Court Prosecutor to attempt to reduce points. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. Division of Motor Vehicles or have your license suspended. Don't give up! We can appear in court for you on most Central New Jersey traffic violations.
The new no point statute reads as follows: Driving, operating a motor vehicle in an unsafe manner, offense created; fines. Law L.2000, c.75, s.1. 1. a. Notwithstanding any other provision of law to the contrary, it shall be unlawful for any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property. b. A person convicted of a first offense under subsection a. shall be subject to a fine of not less than $50.00 or more than $150.00 and shall not be assessed any motor vehicle penalty points pursuant to section 1 of P.L. 1982, c.43 (C.39:5-30.5). c. A person convicted of a second offense under subsection a. shall be subject to a fine of not less than $100.00 or more than $250.00 and shall not be assessed any motor vehicle penalty points pursuant to section 1 of P.L. 1982, c.43 (C.39:5-30.5). d. A person convicted of a third or subsequent offense under subsection a. shall be subject to a fine of not less than $200.00 or more than $500.00 and shall be assessed motor vehicle penalty points pursuant to section 1 of P.L. 1982, c.43 (C.39:5-30.5). THIS MEANS FOR YOUR THIRD OFFENSE WITHIN FIVE YEARS OF THIS STATUTE, YOU WILL BE CHARGED 4 POINTS. e. An offense committed under this section that occurs more than five years after the prior offense shall not be considered a subsequent offense for the purpose of assessing motor vehicle penalty points under subsection d. of this section. L.2000, c.75, s.1. The Law Office of Kenneth Vercammen and Associates will provide all potential clients with : 1. Our Written Agreement to Provide Municipal Court Legal Services 2. Municipal Court Information Sheet We request all potential clients fill out the Municipal Court Information Sheet. You also need to bring in, or fax or mail us: 1. Copies of the ticket and any hearing notice. 2. A check or money order. You can also pay by Visa, Master Charge or American Express over the phone and by fax. You should keep the Agreement to Provide Legal Services for your records. Once we receive the fee paid we will prepare a Letter of Representation to the Court, Prosecutor and you. We recommend our clients meet with us once prior to the court date. Representation/ What We will do for you. We will review and research necessary statutes and caselaw, contact the prosecutor, prepare defenses and determine mitigating factors. 1. Telephone consultation with client; 2. Office consultation with client, if requested; 3. Offer sound legal advice to client, plus access to our legal info website www.NJLaws.com 4. Preparation of letter of representation to Municipal Court; 5. Preparation of letter of representation to Municipal Court Prosecutor; 6. Preparation of statement to provide legal services; 7. Copies of all correspondence to Court and Prosecutor to client; 8. Opening of file. If client comes to our office, they may have a free client case folder, Municipal Court brochure, DMV points brochure, and Website brochure; 9. Review of necessary statutes and case law; 10. Draft Defense by Affidavit 11. Determine defense and mitigating factors; 12. Miscellaneous correspondence, preparation and drafting of pleadings and legal documents in contested serious cases; 13. Review documents supplied by client and court; 14. Travel to Municipal Court; 15. Negotiations with the Prosecutor and Representation in Municipal Court. 16. Preparation of End of Case Letter and client questionnaire. 17. Free Brochures provided on other legal topics such as Workers Comp, Wills, Personal Injury 18. Free subscription to monthly e-mail newsletter. Provide your email address. 19. Follow up telephone advice [If you call, provide the specific questions with the message]. 20. Invitation to client socials/ seminars and Community events via email. 21. Hold and maintain file for seven years in storage as free client service. Other Legal Services. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any additional work or any of the following: (a) Provide any legal services after the decision of the trial court; (b) Appeal any decisions of the trial court or make additional appearances after appearing in Court; (c) provide other legal services or advice not set forth above; or (d) Represent you in any other court or Tribunal Your Responsibility- Please read carefully and follow instructions to help us help you 1. You must fully cooperate with the Law Firm and provide all information relevant to the issues involved in this matter. This includes providing details on what you told the police and court. 2 You must notify the court and the law office immediately if your address or phone numbers change. 3 Under the NJ Rules of Professional Conduct and Court Rules, we cannot send a letter of representation to the court until the Retainer is paid. All fees and requirements under this written retainer agreement and any other written documents must be complied with. Failure to comply with all requirements shall permit the law office to withdraw its offer of representation. The Law Firm will also withdraw at your request. You must advise our office and the Court in writing. 4. Pay your fines immediately. 5. If you call, you must provide your questions to our receptionist. |
39:4-96, 39:4-97 Careless Driving, Reckless Driving, Leaving the Scene, Failure to Report NJ
39:4-96, 39:4-97 Careless Driving, Reckless Driving, Leaving the Scene, Failure to Report | ||
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. 39:4-96. Reckless driving; punishment 39:4-96. A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving and be punished by imprisonment in the county or municipal jail for a period of not more than 60 days, or by a fine of not less than $50.00 or more than $200.00, or both. On a second or subsequent conviction he shall be punished by imprisonment for not more than three months, or by a fine of not less than $100 or more than $500, or both.
39:4-96 Reckless driving First offense: Fine or
imprisonment not exceeding 60
days, or both
fines $50 $200 plus court costs and possible non renewal by car insurance
Plus 5 car insurance points
Plus Judge can suspend license
Judge Can Suspend DL for Willful Traffic Offense.
State v. Moran 202 NJ 311 (2010)
The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges
Second or subsequent offense:
Fine or imprisonment not
exceeding 3 months, or both
$100 $500 plus court costs and possible non renewal by car insurance
39:4-97. A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving. Amended 1951,c.23,s.54; 1955, c.220,s.2; 1995, c.70,s.3. 39:4-129. Action in case of accident [Leaving the scene] 39:4-129. (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than $500 nor more than $1,000 or be imprisoned for a period of 180 days, or both, for the first offense, and for a subsequent offense shall be fined not less than $1,000 nor more than $2,000, or be imprisoned for a period of 180 days, or both. The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section. In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State. (b) The driver of any vehicle knowingly involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than $200 nor more than $400, or be imprisoned for a period of not more than 30 days, or both, for the first offense, and for a subsequent offense, shall be fined not less than $400 nor more than $600, or be imprisoned for a period of not less than 30 days nor more than 90 days or both. In addition, a person who violates this subsection shall, for a first offense, forfeit the right to operate a motor vehicle in this State for a period of six months from the date of conviction, and for a period of one year from the date of conviction for any subsequent offense. (c) The driver of any vehicle knowingly involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operators license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person. In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection. (d) The driver of any vehicle which knowingly collides with or is knowingly involved in an accident with any vehicle or other property which is unattended resulting in any damage to such vehicle or other property shall immediately stop and shall then and there locate and notify the operator or owner of such vehicle or other property of the name and address of the driver and owner of the vehicle striking the unattended vehicle or other property or, in the event an unattended vehicle is struck and the driver or owner thereof cannot be immediately located, shall attach securely in a conspicuous place in or on such vehicle a written notice giving the name and address of the driver and owner of the vehicle doing the striking or, in the event other property is struck and the owner thereof cannot be immediately located, shall notify the nearest office of the local police department or of the county police of the county or of the State Police and in addition shall notify the owner of the property as soon as the owner can be identified and located. Any person who violates this subsection shall be punished as provided in subsection (b) of this section. (e) The driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250.00 or more to any vehicle or property shall be presumed to have knowledge that he was involved in such accident, and such presumption shall be rebuttable in nature. For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident. Amended 1940,c.147; 1967, c.189,s.1; 1977,c.407; 1978,c.180; 1979,c.463,s.1; 1994,c.183,s.1. 39:4-130. Immediate notice of accident; written report [Failure to report] 39:4-130. The driver of a vehicle or street car involved in an accident resulting in injury to or death of any person, or damage to property of any one person in excess of $500.00 shall by the quickest means of communication give notice of such accident to the local police department or to the nearest office of the county police of the county or of the State Police, and in addition shall within 10 days after such accident forward a written report of such accident to the division on forms furnished by it. Such written reports shall contain sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved and such information as may be necessary to enable the director to determine whether the requirements for the deposit of security required by law are inapplicable by reason of the existence of insurance or other circumstances. The director may rely upon the accuracy of the information contained in any such report, unless he has reason to believe that the report is erroneous. The division may require operators involved in accidents to file supplemental reports of accidents upon forms furnished by it when in the opinion of the division, the original report is insufficient. The reports shall be without prejudice, shall be for the information of the division, and shall not be open to public inspection. The fact that the reports have been so made shall be admissible in evidence solely to prove a compliance with this section, but no report or any part thereof or statement contained therein shall be admissible in evidence for any other purpose in any proceeding or action arising out of the accident. Whenever the driver of a vehicle is physically incapable of giving immediate notice or making a written report of an accident as required in this section and there was another occupant in the vehicle at the time of the accident capable of giving notice or making a report, such occupant shall make or cause to be made said notice or report not made by the driver. Whenever the driver is physically incapable of making a written report of an accident as required by this section and such driver is not the owner of the vehicle, then the owner of the vehicle involved in such accident shall make such report not made by the driver. A written report of an accident shall not be required by this section if a law enforcement officer submits a written report of the accident to the division pursuant to R.S. 39:4-131. Any person who knowingly violates this section shall be fined not less than $30 or more than $100. The director may revoke or suspend the operators license privilege and registration privilege of a person who violates this section. For purposes of this section, it shall not be a defense that the operator of the motor vehicle was unaware of the existence or extent of personal injury or property damage caused by the accident as long as the operator was aware that he was involved in an accident. Amended 1951, c.23,s.72; 1953,c.187; 1967,c.189,s.2; 1983,c.193,s.1; 1994,c.183,s.2. |
39:4-50.2 Refusal to Take Breath Test NJ
39:4-50.2 Refusal to Take Breath Test |
Kenneth Vercammens Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. 39:4-50.2. Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50. (b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested. (c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection. (d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section. (e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act. A standard statement, prepared by the director, shall be read by the police officer to the person under arrest. L.1966, c. 142, s. 2. Amended by L.1977, c. 29, s. 3; L.1981, c. 512, s. 1, eff. Jan. 12, 1982. 39:4-50.3. Method of analyses; approval of techniques; certification of analysts; reports; forms Chemical analyses of the arrested persons breath, to be considered valid under the provisions of this act, shall have been performed according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General. The Attorney General is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to make certifications of such individuals, which certifications shall be subject to termination or revocation at the discretion of the Attorney General. The Attorney General shall prescribe a uniform form for reports of such chemical analysis of breath to be used by law enforcement officers and others acting in accordance with the provisions of this act. Such forms shall be sequentially numbered. Each chief of police, in the case of forms distributed to law enforcement officers and others in his municipality, or the other officer, board, or official having charge or control of the police department where there is no chief, and the Director of the Division of Motor Vehicles and the Superintendent of State Police, in the case of such forms distributed to law enforcement officers and other personnel in their divisions, shall be responsible for the furnishing and proper disposition of such uniform forms. Each such responsible party shall prepare or cause to be prepared such records and reports relating to such uniform forms and their disposition in such manner and at such times as the Attorney General shall prescribe. L.1966, c. 142, s. 3. Amended by L.1971, c. 273, s. 1. 39:4-50.4a. Revocation for refusal to submit to breath test; penalties 2. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50, shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for six months unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section. The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue. In addition to any other requirements provided by law, a person whose operators license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f.) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. The revocation shall be independent of any revocation imposed by virtue of a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $250.00 nor more than $500.00. b.The fine imposed upon the convicted person shall be not less than $500 or more than $1,000 and the period of license suspension shall be one year for a first offense, four years for a second offense and 20 years for a third or subsequent offense, which period shall commence upon the completion of any prison sentence imposed upon that person when a violation of this section occurs while: (1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property; (2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or (3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution. A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1997, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection. It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session. L.1981,c.512,s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5. |
39:4-50 Defending the DWI Under Influence Case When Blood Drawn NJ
39:4-50 Defending the DWI Under Influence Case When Blood Drawn |
Kenneth Vercammen's Law office represents individuals charged with DWI throughout New Jersey. 1. The State must prove probable cause to stop the motor vehicle; A WARRANTLESS STOP IS IN VIOLATION OF A DRIVERS FEDERAL AND STATE CONSTITUTIONAL RIGHTS UNLESS THERE IS PROBABLE CAUSE FOR THE STOP. The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights. Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment. State v. Davis, 104 N.J. 490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search. State v. Welsh, 84 N.J. 348, at 352. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. State v. Patino, 83 N.J. 1 (1980). When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation. State v. Brown, 132 N.J. Super. ___ (App. Div. 1975). The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976). Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra.; State v. Welsh, 84 N.J. 348, (1980). In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973) Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings Weeks v United States 232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961). State judges, no less than federal judges, have the high responsibility for protecting constitutional rights. While they are disturbed to allow defendants to go unprosecuted, their oath of office requires them to continue the guarantees afforded by the Constitution. As explained in Weeks, supra,: The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." Weeks v United States 232 US 383,393, 34 S. Ct. 341, 58 L. Ed 652 (1914). Independently of federally mandated rights, each state has the power to impose higher standards on searches and seizures under dictate law than is required by the federal constitution, PruneYard Shopping Center v Robins 447 US 74, 81 (1980); State v Johnson 68 NJ 349, 353 (1975). In fact, New Jersey has chosen to afford to the accused in the search and seizure area greater rights than those deemed mandated by the United States Constitution. State v Alston, 88 NJ 21 (1981); State v Novembrino 220 NJ Super. 229, 240-243 (App. Div. 1985), affd 105 NJ 95 (1987) Courts are to afford liberal, not grudging, enforcement of the Fourth Amendment. We do not have one law of search and seizure for narcotics and gambling cases and another for breaking and entering and theft. The meanness of the offender or the gravity of his crime does not decrease, but rather accentuates the duty of the courts to uphold and dispassionately apply the settled judicial criteria for lawful searches under the Amendment. For it is the hard case which sometimes proves the Achilles heal of constitutional rights, even as it tends to make bad law in other areas. State v Naturile 83 NJ Super. 563, 579 (App. Div. 1964). The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (1979); State v. Patino, 83 N.J. 1 (1980). If there was no indication that motor vehicle laws were violated or that any other laws were violated, police officers will have violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches. .i.2. The Prosecutor should be required to show ANY blood specimen was obtained in a medically accepted manner and submit a notarized statement; NJSA 2A: 62A-10 provides details for hospital personnel who withdraw blood for police: NJSA 2A: 62A-10. a. When acting in response to a request of a law enforcement officer, any physician, nurse or medical technician who withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and delivers it to a law enforcement officer, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised is that ordinarily required and exercised by others in the profession. b. Any physician, nurse or medical technician who, for an accepted medical purpose, withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and subsequently delivers it to a law enforcement officer either voluntarily or upon court order, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised in obtaining the specimen is that ordinarily required and exercised by others in the profession. d. For the purposes of this section, the term "law enforcement officer" includes a State, county or municipal police officer, a county prosecutor or his assistant, the Attorney General or his deputy or a State or county medical examiner. NJSA 2A: 62A-11. Certificate Any person taking a specimen pursuant to section 1 of this act shall, upon request, furnish to any law enforcement agency a certificate stating that the specimen was taken pursuant to section 1 of this act and in a medically acceptable manner. The certificate shall be signed under oath before a notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence of the statements contained therein. A good defense attorney should argue that if a certificate is not signed in front of a notary, the blood results should be inadmissible. .i.3 THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE According to N.J. Practice, Criminal Procedure by Honorable Leonard Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034, a party seeking to introduce an item of physical evidence must prove that the item was that which was taken from a particular person or place which makes the item relevant as evidence in the trial. Such proof is provided by testimony identifying the item as having been taken from that person or place, and by evidence tracing custody of the item from the time it was taken until it is offered in evidence. This latter evidence is necessary to avoid any claim of substitution or tampering. State v. Johnson, 90 N.J. Super. 105, 216 A.2d 397 (App. Div. 1965), affd 46 N.J. 289, 216 A.2d 392 (1966). The required proof includes: 1) testimony by an investigator identifying the item as that which the investigator discovered and took; 2) testimony by that investigator that there was no tampering with the item while it was in his/her custody; 3) testimony regarding delivery of the item to the second person who had custody of the item; 4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court. Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include: testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial. Arnold, N.J. Practice, Criminal Procedure, Sec. 1034. The most difficult aspect of the proof specified above is usually the identification of the evidence by the investigator who discovered it. This difficulty arises because of the frequent failure to properly "mark" the item. "Marking" means the placing by the investigator of at least his/her initials on the item. Unfortunately, sometimes items are "marked" by affixing an evidence tag to the item with a string. The investigator then puts his/her initials on the tag. When the string breaks and the tag is lost it may then be impossible for the investigator to identify the item as being the item that was discovered. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034. Many excellent texts, one such text is the Handbook of Forensic Science, published by the Federal Bureau of Investigation provide information on the proper "marking" of various types of evidence, and they should be studied by investigators having responsibility for the collection of physical evidence. But the basic rule is as follows: The item should be "marked" by the investigator placing his/her initials, date, and the case number on the item itself. Metallic surfaces should be so "marked" with a machinists scribe. Liquids, soils and small fragments should be placed in a suitable container and sealed. The container should be "marked" by scribing the same information on the container, or by using some other permanent form of marking material on the container. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034. With respect to avoiding a claim of substitution of another item for that seized or a claim that the item has been tampered with, the problems of proof can be minimized by designating one investigator as the custodian of all the physical evidence in a given investigation. All investigators who recover physical evidence must turn that evidence over to the custodian, who is then responsible for the evidence from that time forward until trial. N.J. Practice, Criminal Procedure by Honorable Leonard Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034, Where evidence must be submitted to a laboratory, the custodian delivers that evidence to the laboratory, and obtains a receipt from the laboratory. When the laboratory has completed its examination, it is the custodian who returns to the laboratory, receives the remaining specimen1 from the laboratory, and retains custody of the specimen and brings it to court for trial. By following this procedure, all the physical evidence can be introduced by calling the various investigators who recovered and marked each item of physical evidence, the custodian, and the laboratory specialist who examined the evidence. (The laboratory specialist testifies not only with respect to the laboratory examination, the specialists findings and opinion, but also as to the method of reception and storage at the laboratory prior to and after analysis.) Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034. The identification of evidence and chain of evidence rules require that the proponent of the evidence show that the evidence has not been tampered with, and that there has not been any irregularity which altered its probative value. State v. Roszkowski, 129 N.J. Super. 315, 323 A.2d 531 (App. Div. 1974). Often the Prosecutor cannot prove the chain of custody. .i.4. Lab Evidence should not be routinely admitted where there is a Formal written objection to lab Certificate Pursuant to N.J.S.A. 2C: 35-19, the defendant through attorney, may hereby in a Drug case, object to the entry of a proffered laboratory certificate as evidence at the time of trial. Grounds for objection may include: -The certificate is illegible and has not been certified in accordance with N.J.S.A. 2C: 35-19 (b). -the certificate fails to establish the type of analysis performed, the subscribers full training and experience, the nature and condition of the equipment used, or the full conclusions reached by the subscriber. -The State has failed to provide all results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986). The defense should request these documents and if they have not been provided to the defense object to the lab report. The defense may request to be provided with the operators manual for all instruments used to test the substances, pursuant to State v Ford 240 N.J. Super. 44 (App. Div. 1990). .i.5 Blood test "reports" are hearsay, which may be inadmissible EVIDENCE RULE 801. DEFINITIONS For purposes of this article, the following definitions apply: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by him as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Business. A "business" includes every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies. (e) Writing. A "writing" consists of letters, words, numbers, data compilations, pictures, drawings, photographs, symbols, sounds, or combinations thereof or their equivalent, set down or recorded by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or by any other means, and preserved in a perceptible form, and their duplicates as defined by Rule [Source: The Internet- http://www.njlawnet.com/njevidence/] Documents and papers are a writing and thus hearsay. Under the evidence RULE 802. HEARSAY RULE : "Hearsay is not admissible except as provided by these rules or by other law. " Admission of hearsay which is not admissible under any exception or other law and its use as a foundation for a conviction violates a defendants Sixth Amendment right to confront witnesses against him. State v Long 255 NJ Super. 716, 726 (Law Div. 1993) RULE 803. HEARSAY EXCEPTIONS NOT DEPENDENT ON DECLARANTS UNAVAILABILITY The following written statements are not excluded by the hearsay rule: ....... (6) Records of regularly conducted activity. [Business Records] A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy. A good attorney should argue that there is no proof the writing was made in the ordinary course or business. (8) Public records, reports, and findings. Subject to Rule 807, (A) a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the officials duty either to perform the act reported or to observe the act, condition, or event reported and to make the written statement, or (B) statistical findings of a public based upon a report of or an investigation of acts, conditions, or events, if it was within the scope of the officials duty to make such statistical findings, unless the sources of information or other circumstances indicate that such statistical findings are not trustworthy. [Source: The Internet- http://www.njlawnet.com/njevidence/] An attorney should argue there is no proof that the official actually performed the act and that there is no proof the report that part of an official duty. If the public cannot readily obtain a copy of the results, is it really a public record? RULE 808. EXPERT OPINION INCLUDED IN A HEARSAY STATEMENT ADMISSIBLE UNDER AN EXCEPTION Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness. According to Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 808, (Gann) NJRE 808 codifies principles first set out in State v Matulewicz 101 NJ 27 (1985). As stated by the 1991 Supreme Court Committee Comment, NJRE 808 is intended in general terms all of the specific criteria discussed in Matulewicz. Before a determination can be made by the trial court, it must hear proofs as to the "Method and circumstances" involved in the preparation of the proffered report. In particular, "proof should be adduced to reflect: -the relative degrees of objectivity and subjectivit involved in the procedure, -the regularity with which these analyses are done, -the routine quality of each analysis, -the presence of any motive to single out a specific analysis for the purpose of rendering an untrustworthy report, and -the responsibility of each chemist to make accurate and reliable analyses. Therefore, expert opinions contained in hearsay should not be admissible unless there is actual testimony that all conditions of NJRE 808 and State v Matulewicz are followed. In DWI breath cases, evidence must be admitted to show the breathalyzer has been inspected before and usually after the arrest and tests. In a DWI blood case for drug or alcohol influence, the State Police civilian chemists use a gas chromatagraph machine. Often there is no evidence that the as chromatagraph machine was inspected before or after the testing of the blood. All machines should be inspected on a periodic basis. For example, in Matulewicz, the expert witness was not produced. The results were too unreliable, too great a chance of a prejudicial finding are police labs reports which are offered without a right of a defendant to question the police chemist. NJ Administrative Office of the Court, Bench Book, P1-1-28 RULE 807. DISCRETION OF JUDGE TO EXCLUDE EVIDENCE UNDER CERTAIN EXCEPTIONS Except if offered by an accused in a criminal proceeding, when any statement is admissible by reason of Rules 803(c)(8), 803(c)(9), 803(c)(10), 803(c)(11), 803(c)(12), 803(c)(13), 803(c)(14), 803(c)(15), 803(c)(26) or 804(b), the judge may exclude it at the trial if it appears that the proponents intention to offer the statement in evidence was not made known to the adverse party at such time as to provide that party with a fair opportunity to meet it. The defense attorney should object and request the judge to exclude the evidence at trial if the prosecutor did not provide a notice of intent to offer the evidence. RULE 1002. REQUIREMENT OF ORIGINAL To prove the content of a writing or photograph, the original writing or photograph is required except as otherwise provided in these rules or by statute. [Source: The Internet- http://www.njlawnet.com/njevidence/] _______________ .i.6 NJ EVIDENCE RULE 506-PATIENT AND PHYSICIAN PRIVILEGE MAY RENDER THE HOSPITAL BLOOD RESULTS CONFIDENTIAL (a) N.J.S. 2A: 84A-22.1 provides: As used in this act, (a) "patient" means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his physical or mental condition, consults a physician, or submits to an examination by a physician; (b) "physician" means a person authorized or reasonably believed by the patient to be authorized, to practice medicine in the State or jurisdiction in which the consultation or examination takes place; (c) "holder of the privilege" means the patient while alive and not under the guardianship of the guardian of the person of an incompetent patient, or the personal representative of a deceased patient; (d) "confidential communication between physician and patient" means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted. (b) N.J.S. 2A: 84A-22.2 provides: Except as otherwise provided in this act, a person, whether or not a party, has a privilege in a civil action or in a prosecution for a crime or violation of the disorderly persons law to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the judge finds that (a) the communication was a confidential communication between patient and physician, and (b) the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (c) the witness (i) is the holder of the privilege. Background of the Privilege As set forth in Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) even prior to the enactment of the statutory privilege doctors were ethically restrained by the Oath of Hippocrates from violating the privacy of their patients by disclosing confidential information in the absence of legal compulsion. State v. Schreiber, 122 NJ 579, 586-588; Hague v. Williams, supra at 332, 335; Lazorick v. Brown, 195 N.J. Super. 444, 451 (App. Div. 1984). State v. Schreiber, supra declared the physician-patient privilege is not applicable where police bring the DWI suspect to the hospital. However, the defense counsel should argue the privilege should continue to apply to other aspects of the hospital and blood work. This ethical obligation is now embodied in Section 9 of the Principles of Medical Ethics of the American Medical Association. In this spirit law enforcement officers were cautioned in State v. Schreiber, supra, at 587, "not to cajole hesitant hospital doctors to violate confidences absent some preceding justification." Nevertheless, even without testimonial compulsion, it was held in Hague v. Williams, supra, that information concerning a patients medical condition could be disclosed to someone having a legitimate interest in the subject "where ... the physical condition of the patient is made an element of a claim." Id. at 336. See Kurdek v. West Orange Educ. Bd., 222 N.J. Super. 218, 224 (Law Div. 1987). The privilege is designed to enable a patient to secure medical services "without fear of betrayal and unwarranted embarrassing and detrimental disclosure in court of information which might deter him from revealing his symptoms to a doctor to the detriment of his health." Stempler v. Speidell, 100 N.J. 368, 374 (1985); Kurdek v. West Orange Educ. Bd., supra, at 223-224. The New Jersey Supreme Court has recognized that when a law enforcement agency is investigating allegations of medical fraud, it may have to give notice to holders of the physician-patient privilege before it can subpoena records deemed necessary for their investigations. State v. Dolinger, 96 N.J. 236, 254 (1984). R. 4:14-7(c), the rule of practice governing the use of a subpoena for taking depositions, is directed toward preventing disclosure of privileged information by an expert such as a doctor without notice to other parties. Vasquez v. YMCA, 263 N.J. Super. 408, 411 (Law Div. 1992). Even after Schreiber, a driver suspected of having an elevated blood alcohol level does not necessarily lose all interest in the confidentiality of his medical records. Where a blood test was taken for diagnostic rather than investigative purposes and where investigation is of death by auto charges or any other crime or disorderly persons offense, the privilege would still apply under the restrictions established by State v. Dyal, 97 N.J. 229 (1984). Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) Also, the term "confidential communication" is defined as including information obtained by an examination of the patient. State In Interest of M.P.C., supra. Thus, the privilege is not confined solely to oral or written communications; if there was an expectation of confidentiality, "[a] physicians impressions secured by any of his senses may be privileged against disclosure." State v. Phillips, supra at 542, N. 4. Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) It should be noted that the privilege encompasses not only the claimants ability to refuse to disclose communications, but also the claimants ability to prevent a witness from making such disclosure. Thus, where the privilege is applicable, neither physicians nor third persons, within the ambit of N.J.R.E. 506(a) and N.J.S. 2A: 84A-22.1(d), may disclose confidential communications. Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) Any confidential statements made to a treating nurse, who was acting either as an agent under a doctors supervision or in her own professional capacity, should be protected from disclosure under N.J.S. 2A: 84A-22.2(c)(ii). See State v. Phillips, 213 N.J. Super. 534, 543, n. 5 (App. Div. 1986). Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) But once a patient waives the privilege by bringing an action involving an aspect of his physical condition, it is a waiver covering all of his physicians knowledge concerning that condition. Stigliano v. Connaught Labs, Inc., supra, at 312. Thus, a plaintiffs treating doctors can testify for a defendant "concerning their physical examinations and diagnoses of plaintiff." Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) A Hospital blood test was admissible in DWI case of State v. Lutz 309 N.J. Super. 317 (App. Div. 1998) The Defendant in Lutz appealed from his convictions for driving under the influence of alcohol under N.J.S.A 39:4-50. Defendant contended that the results of his blood test are forensically unreliable and inadmissible. The Court affirmed the driving-under-the-influence-of-alcohol conviction and noted that although there may be differences in the methodology used for tests conducted by law enforcement for "forensic" purposes in comparison to those conducted by a hospital for "diagnostic" purposes, the procedure utilized to test defendants blood was sufficient to establish the reliability of defendants test results. The Court did not that the state produced witnesses who drew blood and witnesses for the chain of custody, rather than hearsay reports and the state. Other ideas for defense objections- 7- Have the gas chromatagraph results reviewed by an independent expert 8- Testimony is objected to from any so-called non medical drug recognition expert or police office that the defendant was under the influence. There is no reported court case that ever recognized DRE as scientific. 9- If all discovery is not received, defense makes a motion to exclude the all test results under State v Holup 10- If the state is not prepared to proceed, defense objects to the adjournment and make a record for appeal. INDEX TO LEGAL SECTIONS 1. The State must prove probable cause to stop the motor vehicle 2. The Prosecutor should be required to show ANY blood specimen was obtained in a medically accepted manner and submit a notarized statement 3 THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE 4. Lab Evidence should not be routinely admitted where there is a Formal written objection to lab Certificate 8 5 Blood test "reports" are hearsay, which may be inadmissible |
39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident NJ
39:4-129, 39:4-130 Leaving Scene of Accident and
Failure to Report, Car Accident
Kenneth Vercammen's Law
office represents individuals charged with criminal and serious traffic
violations throughout New Jersey. There is mandatory 6 month loss of license
for leaving the scene. Our goal as the attorney is to negotiate with the
prosecutor to reduce down to a violation with no suspension.
39:4-129 Action in case of accident.
39:4-129 . (a) The driver of any
vehicle, knowingly involved in an accident resulting in injury or death to any
person shall immediately stop the vehicle at the scene of the accident or as
close thereto as possible but shall then forthwith return to and in every event
shall remain at the scene until he has fulfilled the requirements of subsection
(c) of this section. Every such stop shall be made without obstructing
traffic more than is necessary. Any person who shall violate this
subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned
for a period of 180 days, or both. The term of imprisonment required by
this subsection shall be imposed only if the accident resulted in death or
injury to a person other than the driver convicted of violating this section.
More info at http://www.njlaws.com/leaving_the_scene.html
In addition, any person
convicted under this subsection shall forfeit his right to operate a motor
vehicle over the highways of this State for a period of one year from the date
of his conviction for the first offense and for a subsequent offense shall
thereafter permanently forfeit his right to operate a motor vehicle over the
highways of this State.
(b)The driver of any vehicle knowingly involved
in an accident resulting only in damage to a vehicle, including his own
vehicle, or other property which is attended by any person shall immediately
stop his vehicle at the scene of such accident or as close thereto as possible,
but shall then forthwith return to and in every event shall remain at the scene
of such accident until he has fulfilled the requirements of subsection (c) of
this section. Every such stop shall be made without obstructing traffic
more than is necessary. Any person who shall violate this subsection
shall be fined not less than $200 nor more than $400, or be imprisoned for a
period of not more than 30 days, or both, for the first offense, and for a
subsequent offense, shall be fined not less than $400 nor more than $600, or be
imprisoned for a period of not less than 30 days nor more than 90 days or both.
In addition, a person who violates this
subsection shall, for a first offense, forfeit the right to operate a motor
vehicle in this State for a period of six months from the date of conviction,
and for a period of one year from the date of conviction for any subsequent
offense.
(c)The driver of any vehicle knowingly involved
in an accident resulting in injury or death to any person or damage to any
vehicle or property shall give his name and address and exhibit his operators
license and registration certificate of his vehicle to the person injured or
whose vehicle or property was damaged and to any police officer or witness of
the accident, and to the driver or occupants of the vehicle collided with and
render to a person injured in the accident reasonable assistance, including the
carrying of that person to a hospital or a physician for medical or surgical
treatment, if it is apparent that the treatment is necessary or is requested by
the injured person.
In the event that none of the persons specified
are in condition to receive the information to which they otherwise would be
entitled under this subsection, and no police officer is present, the driver of
any vehicle involved in such accident after fulfilling all other requirements
of subsections (a) and (b) of this section, insofar as possible on his part to
be performed, shall forthwith report such accident to the nearest office of the
local police department or of the county police of the county or of the State
Police and submit thereto the information specified in this subsection.
(d)The driver of any vehicle which knowingly
collides with or is knowingly involved in an accident with any vehicle or other
property which is unattended resulting in any damage to such vehicle or other
property shall immediately stop and shall then and there locate and notify the
operator or owner of such vehicle or other property of the name and address of
the driver and owner of the vehicle striking the unattended vehicle or other
property or, in the event an unattended vehicle is struck and the driver or
owner thereof cannot be immediately located, shall attach securely in a
conspicuous place in or on such vehicle a written notice giving the name and
address of the driver and owner of the vehicle doing the striking or, in the
event other property is struck and the owner thereof cannot be immediately
located, shall notify the nearest office of the local police department or of
the county police of the county or of the State Police and in addition shall
notify the owner of the property as soon as the owner can be identified and
located. Any person who violates this subsection shall be punished as provided
in subsection (b) of this section.
(e)There shall be a permissive inference that
the driver of any motor vehicle involved in an accident resulting in injury or
death to any person or damage in the amount of $250.00 or more to any vehicle
or property has knowledge that he was involved in such accident.
For purposes of this section, it shall not be a
defense that the operator of the motor vehicle was unaware of the existence or
extent of personal injury or property damage caused by the accident as long as
the operator was aware that he was involved in an accident.
There shall be a permissive inference that the
registered owner of the vehicle which was involved in an accident subject to
the provisions of this section was the person involved in the accident;
provided, however, if that vehicle is owned by a rental car company or is a
leased vehicle, there shall be a permissive inference that the renter or
authorized driver pursuant to a rental car contract or the lessee, and not the
owner of the vehicle, was involved in the accident, and the requirements and
penalties imposed pursuant to this section shall be applicable to that renter
or authorized driver or lessee and not the owner of the vehicle.
Any person who suppresses, by way of concealment
or destruction, any evidence of a violation of this section or who suppresses
the identity of the violator shall be subject to a fine of not less than $250
or more than $1,000.
Amended 1940, c.147; 1967, c.189, s.1; 1977,
c.407; 1978, c.180; 1979, c.463, s.1; 1994, c.183, s.1; 2003, c.55, s.1; 2007,
c.266, s.1.
39:4-130 Immediate notice of accident;
written report.
39:4-130. The driver of a vehicle or street car
involved in an accident resulting in injury to or death of any person, or
damage to property of any one person in excess of $500.00 shall by the quickest
means of communication give notice of such accident to the local police department
or to the nearest office of the county police of the county or of the State
Police, and in addition shall within 10 days after such accident forward a
written report of such accident to the commission on forms furnished by it.
Such written reports shall contain sufficiently detailed information with
reference to a motor vehicle accident, including the cause, the conditions then
existing, the persons and vehicles involved and such information as may be
necessary to enable the chief administrator to determine whether the
requirements for the deposit of security required by law are inapplicable by
reason of the existence of insurance or other circumstances. The chief
administrator may rely upon the accuracy of the information contained in any
such report, unless he has reason to believe that the report is
erroneous. The commission may require operators involved in accidents to
file supplemental reports of accidents upon forms furnished by it when in the
opinion of the commission, the original report is insufficient. The
reports shall be without prejudice, shall be for the information of the
commission, and shall not be open to public inspection. The fact that the
reports have been so made shall be admissible in evidence solely to prove a
compliance with this section, but no report or any part thereof or statement
contained therein shall be admissible in evidence for any other purpose in any
proceeding or action arising out of the accident.
Whenever the driver of a vehicle is physically
incapable of giving immediate notice or making a written report of an accident
as required in this section and there was another occupant in the vehicle at
the time of the accident capable of giving notice or making a report, such
occupant shall make or cause to be made said notice or report not made by the
driver.
Whenever the driver is physically incapable of
making a written report of an accident as required by this section and such
driver is not the owner of the vehicle, then the owner of the vehicle involved
in such accident shall make such report not made by the driver.
In those cases where a driver knowingly violates
the provisions of this section by failing to make a written report of an
accident, there shall be a permissive inference that the registered owner of
the vehicle which was involved in that accident was the person involved in the
accident; provided, however, if that vehicle is owned by a rental car company
or is a leased vehicle, there shall be a permissive inference that the renter
or authorized driver pursuant to a rental car contract or the lessee, and not
the owner of the vehicle, was the person involved in the accident, and the
requirements and penalties imposed pursuant to this section shall be applicable
to that renter or authorized driver or lessee and not the owner of the vehicle.
Any person who suppresses, by way of concealment
or destruction, any evidence of a violation of this section or who suppresses
the identity of the violator shall be subject to a fine of not less than $250
or more than $1,000.
A written report of an accident shall not be
required by this section if a law enforcement officer submits a written report
of the accident to the commission pursuant to R.S.39:4-131.
Except as otherwise provided in this section, a
person who knowingly violates this section shall be fined not less than $30 or
more than $100.
The chief administrator may revoke or suspend
the operators license privilege and registration privilege of a person who
violates this section.
For purposes of this section, it shall not be a
defense that the operator of the motor vehicle was unaware of the existence or
extent of personal injury or property damage caused by the accident as long as
the operator was aware that he was involved in an accident. Copyright
2016 Vercammen Law
Subscribe to:
Posts (Atom)