Truck driver traffic ticket defense NJ

Truck driver traffic ticket defense NJ

What happens in the typical NJ Municipal Court criminal and Traffic Ticket case in NJ?

       After you have retained [paid] the attorney, your attorney will prepare a letter of representation to the court and a demand for discovery to the Prosecutor.

After you have retained [paid] your attorney, call the court, plead not guilty and give the court the name of your attorney and confirm the address they have for you is correct. The date on the initial complaint or ticket is the first appearance date. If you hire and attorney and a letter of rep is sent, you do not need to appear for the first appearance/ arraignment. If you will be taking a vacation or business trip during the next two months, advise the court and provide them with written details of the trip.The court does not accept email. All communications are hard copy via US Mail.

In traffic matters, we highly recommend you contact DMV, now Motor Vehicle Commission, and obtain a driver's license abstract. 888-486-3339 or 609-292-6500. This will help you when we go to court.

       The court schedule a hearing date and will mail a computer notice to you and your attorney. Our law office will mail a letter to our clients to remind them of the hearing date. 

You are reminded that every time you go to Court or come to our office, you should bring yourentire file with all documents and letters you have, plus everything received from our office, the Court, police, or DMV/MVC applicable to your case.

      We as your attorney may file certain motions applicable to your case. We will mail you copies.

       Police Records/ Discovery

       When we receive police reports, we copy and mail to clients. For State Police sometimes this takes 5 weeks. Please read the police records, which are called Discovery from the Prosecutor. Please write down any inaccurate statements or comments and mail them back to me. Please reference the page and paragraph of the inaccurate details. Do not call the office to indicate the inaccurate details. Keep the portions of Discovery that are correct.

       If you plead guilty or are found guilty, the judge at the time of sentencing always has several options including but not limited to jail, probation, community service, restitution and substance abuse counseling. Please prepare and mail to my office a list of 15 reasons why the judge should not impose the maximum penalties or fines within 10 days of receiving this letter.

       The judge will also review any letters or documents that are submitted to the Court on your behalf. For clients that have multiple prior violations, we recommend very strongly that you obtain letters from relatives or other individuals who know you who would be willing to write to the Court to indicate that there should not be incarceration. These letters should set forth favorable aspects regarding your life and your future.  They should point out some of the good traits that you possess.  They should also feel free to put any other reasons why the Court should impose the minimum penalties.  Bring these letters to the court. These letters are for your benefit and these instructions should be followed.

       If the Court is going to suspend your driver's license, you should get a ride to court since the judge will confiscate your license. Most Judges will no longer issue a temporary license to drive home and require you to surrender your license to the court. Obtain alternate ID. If you have any questions, please contact my office. 

      We recommend to clients that have alcohol or drug charges to obtain Substance Abuse Treatment and attend AA or related meetings. You should keep a detailed record of every event and meeting you attend and try to obtain proof of this attendance.  Make two (2) photocopies of this documentation and bring it to court with you to give to the Prosecutor and Judge.  As always, be sure to bring your entire file with you any time you come to court

What Happens on Your Day in Court?

          It is very important that you arrive in court on the day and time stated on your ticket, summons, subpoena, or court notice. In addition to bringing your file, we recommend that you bring a magazine or some light reading because the courts often take recesses and delays often occur. The court will not permit you to use your cell phone inside the courtroom, even for email. When you arrive, please check in. Hearing times are often delayed. If by chance, I or the attorney in my office handling the hearing is not at the hearing room when you arrive, please do not panic. We will soon arrive to handle the case. We often travel from another court. Do not call the law office if you do not see the attorney right away unless there is an emergency. 

          Usually we will go to speak directly with the Prosecutor or Court Clerk prior to going into the courtroom. Please sit in the courtroom/hearing room close to the front row until we arrive. Do not wait in the lobby or outside. In municipal court/traffic cases, do notspeak with the Prosecutor, wait for your attorney to arrive. Do not leave the court and go home until instructed by our office. If you will have to pay court costs or a fine, bring a checkbook or cash. Most towns and state agencies still do not accept credit cards. 

If you arrive late, or if your name is not called, you should notify court personnel immediately.

If the defendant does not appear, the judge will advise all witnesses when they may leave. A warrant will be issued for the defendant who fails to appear, and his/her driving privileges may be suspended. 

Source http://www.judiciary.state.nj.us/somerset/questions.htm

All municipal court proceedings are tape recorded. Therefore, it is necessary for everyone in the courtroom to remain quiet until it is their turn to speak. The length of time you will be in court depends on many things. Some cases take longer than others. Please be patient so that the court may give each case the time and attention it deserves.

At the beginning of the court session, the judge will give an opening statement, explaining court procedures, defendants’ rights, and penalties. As each case is called, the judge will individually advise each defendant of his/her rights. A case may be postponed to permit the defendant to hire a lawyer. Source http://www.judiciary.state.nj.us/somerset/questions.htm

If the defendant rejects the plea offer by the prosecutor, and all involved parties are present and prepared, the case will proceed to trial at the end of the court session. Once the judge has heard the testimony, he/she will decide if the defendant is guilty, not guilty, or if the case should be dismissed. If the defendant pleads guilty or is found guilty after a trial, the judge will impose a sentence. Source: http://www.judiciary.state.nj.us/somerset/questions.htm

In What Order Are Cases Called?

  The order in which cases are called is controlled by the New Jersey Court Rules. Cases are generally called in the following order:

         1.   Requests for postponements. 

         2.   Arraignments (Advising defendants of rights/penalties). 

         3.   Guilty pleas: Where defendant is represented by an attorney. 

         4.   Where defendant is not represented by an attorney. 

         5.   Not guilty pleas trials: Where defendant is represented by an attorney. 

         6.   Where defendant is not represented by an attorney [these go last]

Who Are the People Involved?

The Complainant:The complainant is the person who signed the complaint (may be a private citizen or police officer). The complainant is a witness for the state and will generally be given an opportunity to speak with the municipal prosecutor about the case. Once a complaint has been filed, it cannot be withdrawn and it generally cannot be dismissed without the consent of the prosecutor.

The Defendant:The defendant is the person formally accused of the violation. The defendant will be informed of the charges, possible penalties, and his/her right to an attorney. The defendant is presumed innocent until proven guilty beyond a reasonable doubt. The burden of proof is always on the state. The prosecutor must prove that the defendant committed each part of the offense charged. The defendant has the right to testify or not testify.

The Victim:If there is a trial, the victim may be called as a witness. If the defendant pleads guilty, no trial is needed but the victim has the right to address the court before the judge decides what sentence to impose.

The Prosecutor:The prosecutor is the lawyer hired by the municipality to represent the State.

The Public Defender:The public defender is the lawyer hired by the municipality to represent those defendants who cannot afford their own attorney.

The Defense Attorney:The Defense Attorney is the lawyer the defendant hires to represent him/her. http://www.judiciary.state.nj.us/somerset/questions.htm

What Is a Plea Agreement?

The New Jersey Supreme Court allows plea agreements to be made within the Municipal Courts except in drunk driving and certain drug related cases. A plea agreement is an agreement between the defendant and the prosecutor about how the case will be resolved. In exchange for a guilty plea, the prosecutor may amend the charge to one that is less serious or that may result in fewer points on one's license. Certain charges may be dismissed or a specific sentence may be recommended. 

http://www.judiciary.state.nj.us/somerset/questions.htmIf the defendant pleads guilty, the judge will ask questions regarding the offense charged to make sure there is a basis for the guilty plea.  

What happens at Trial if you reject the plea offer?

You must have your witnesses present in court on the day of trial. If they will not come to court voluntarily, your attorney can prepare subpoenas to require them to appear in court. Written statements of witnesses are not allowed to be presented --- the person must appear in court.  

First, the prosecutor calls each of the state's witnesses and asks them questions. You will have a chance to ask them questions too (to cross-examine them). After the prosecutor has called all of the state's witnesses, you have the opportunity to make a statement under oath (to testify) on your own behalf and to call any witnesses you may have. You have a constitutional right to remain silent --- the decision about whether to testify is yours. If you do testify, the prosecutor can ask you questions and may also ask questions of your witnesses. http://www.judiciary.state.nj.us/somerset/questions.htm

What Are the Possible Penalties?

Fines:The judge must follow the law in deciding the amount of any fine imposed. Sometimes there are minimum penalties and mandatory assessments that must be imposed by law. Fines are generally expected to be paid at the time they are imposed.

The judge may allow the fine to be paid in installments if the judge is satisfied that payment cannot be made in full. You may apply for partial payments by filling out a form. The judge will then make a decision about your payment arrangements. You will sign a court order that will explain the terms of your payments. Failure to comply with this order can result in a warrant for your arrest and/or suspension of your driving privileges.

Jail:The maximum jail term that can be imposed for offenses heard in the municipal court is six months. The sentence is served at the Somerset/Hunterdon/Warren County Jail. The judge may allow a defendant to serve the sentence on weekends. Work release is coordinated through the jail's work release administrator.

Juveniles sentenced to jail by the municipal court in traffic cases serve their sentence at the County's Juvenile Detention Facility.

License Suspension:Many offenses require suspensions for a minimum period. You cannot drive for any reason until the period of suspension ends, you have paid your restoration fee, and have received written notification from the Division of Motor Vehicles that your driving privileges have been restored. If your license has been suspended for failure to appear, pay fines, or comply with a condition of your sentence, it generally will not be restored until your case is completed. Conditional or special work licenses are not allowed in New Jersey.

Community Service:By law, the judge must order community service for certain traffic and shoplifting offenses  and may order community service for a criminal conviction. The defendant must work for a municipality or non-profit organization for a certain period of time, without compensation. Failure to perform community service may result in the case being returned to court.

Source http://www.judiciary.state.nj.us/somerset/questions.htm

Other Related Penalties:In addition to penalties imposed by the court for traffic violations, defendants may also receive points on their driving records, auto insurance surcharges, or may be required to pay restoration and administrative fees. Out of state motorists should check with their state's Motor Vehicle Agency regarding the impact of a New Jersey traffic violation on their driving privileges.

What Is a Conditional Discharge?

This procedure allows defendants charged with certain drug offenses to make a Motion for the charges to be held up for a year and to be under court supervision for a period of time determined by the court. The Judge may require the defendant to get drug counseling, have random drug tests, to attend narcotics anonymous meetings, or may place other conditions on probation (this is called supervisory treatment). To be eligible, a defendant must have:

▪   Never been convicted of a drug offense in any State or Federal Court

▪   Never been granted a conditional discharge before

▪   Never received Pre-Trial Intervention or Pre-Trial Diversion in any State or Federal Court

The judge ultimately determines who is eligible for a conditional discharge. If granted a conditional discharge, the defendant must pay mandatory assessments and the judge may suspend his/her driving privileges. If during the period of supervisory treatment no additional offenses have been committed, and there is compliance with all conditions (including satisfying all financial obligations), the defendant will be scheduled for a court hearing at which time the charges will be dismissed. If new offenses have been committed during this period, the defendant may be tried on the original charges and the new offenses. Source http://www.judiciary.state.nj.us/somerset/questions.htm

To Whom Is Bail Returned?

Bail is money required to be deposited with the court to release the defendant and assure the defendant's future appearance in court. Bail can only be returned to the person who posted it. Bail will not be returned until the case is concluded. The bail receipt should be brought to the court to speed the return of bail. It may be possible to have the bail applied to any fines or assessments that may be imposed by the court if the holder of the bail agrees.

Intoxicated Driver Resource Center (IDRC):If convicted of DWI or refusal to take a Alcotest breath machine, the court must order attendance at the Intoxicated Driver Resource Center, where the defendant must satisfy the screening, evaluation, referral, program, and fee requirements. Failure to comply with the IDRC guidelines will result in further court action.

Who Is Entitled to the Public Defender?

A defendant is only entitled to be represented by the public defender when:

▪   The charge presents a risk of the defendant going to jail, losing driving privileges, or receiving a substantial fine.

▪   The court determines that the defendant is indigent [ex- on welfare, permanently disabled, etc] The judge may require the defendant to bring in proof of income or employment (tax returns, pay stubs), and may verify the information.

http://criminalarticle.blogspot.com/2015/05/what-happens-in-typical-nj-municipal.html

Undocumented drivers with traffic tickets NJSA 39:3-40 Driving While Suspended in New Jersey DEFENSES Call Kenneth Vercammen for representation 732-572-0500

Undocumented drivers with traffic tickets

 NJSA 39:3-40 Driving While Suspended in New Jersey DEFENSES  Call Kenneth Vercammen for representation 732-572-0500

More info at www.njlaws.com/driving_on_a_suspended_license.htm       

      Thousands of motorists in New Jersey are stopped for routine traffic violations, then are surprised to be informed their license is suspended.  Where the minimum costs would be $1,261 in fines, surcharge and costs, motorists need an attorney with knowledge and skill in handling Driving While Suspended (DWS) matters.  Over the past decade Municipal Court practice has diversified requiring the need for crafted trial counsel to provide adequate representation for clients concerning both disorderly persons and motor vehicle offenses.  Although this may seem like a hopeless situation at first, the reality is that it offers an attorney the opportunity to be creative in finding possible ways to avoid a prolonged license suspension and even the possible incarceration of the client.

      The violation of DWS is set forth at NJSA 39:3-40.  This section states, "no person to whom a drivers license has been refused or whose driver's license or reciprocity privilege has been suspended or revoked or who has been prohibited from obtaining a driver's license, shall personally operate a motor vehicle during the period of refusal suspension, revocation or prohibition."  The statute also prohibits the operation of a motor vehicle whose registration has been revoked. 

PENALTIES

      Conviction under this statute brings the following penalties:  Upon conviction of the first offense of a fine of $500.00, the defendant will also be surcharged a mandatory $250.00 per year for 3 years in every DWS by the MVC (formerly DMV); 

     Upon conviction for the second offense a fine of $750.00 and imprisonment in the county jail for 1 - 5 days; 

     Upon conviction for the third offense, a fine of $1000.00 and imprisonment in the county jail for 10 days.  

      Additionally, the statute states that upon the conviction the court shall impose or extend a period of suspension not to exceed 6 months for each offense. If DWS and involved in an accident resulting in personal injury to another person, the court shall impose a period of imprisonment for not less than 45 days.

      If an individual violates this section while under suspension under 39:4-50 (DWI), they shall be fined $500.00 extra and have their license suspended for an additional period not less than one year nor more than two years and mandatory county jail for 10 - 90 days.  If suspended for Failure to Pay a Surcharge, there is an extra $3000.00 fine.  

      Although most municipal court matters are considered minor by many citizens it is obvious from the possible penalties involved that this is a serious offense carrying the possibility of both stiff fines and incarceration.  As attorneys, it is incumbent upon us to try and provide the most favorable result for the client.

      Few courts inform a driver charged with DWS that the penalty is anything more than a $500.00 fine plus up to six months loss of license.  Most courts do not warn a defendant if he pleads guilty he will have to pay MVC insurance surcharges and face other new penalties.

      Few courts and attorneys are aware of the provisions of NJAC 11:3-34, which allows insurance companies to charge additional surcharges to drivers who drive while suspended.  These insurance company surcharges are in addition to MVC surcharges and fines. For Driving While Suspended pursuant to 2C N.J.R. 576 a driver is given 9 Automobile Eligibility Points.

      There are two types of license suspension:  

1. Court imposed suspension

2. Administrative / MVC suspension

      The most common scenario reflects where that the client, through a motor vehicle violation, failure to pay a surcharge or accumulated points have been placed on a suspended list maintained by the New Jersey Division of Motor Vehicles (MVC), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state.

      If the client is aware that they are on the suspended list and acknowledged to the police officer that they were suspended, there is little room for creative legal defenses.  The lawyer in this case would most likely discuss how to mitigate penalties or negotiate a plea bargain. However, more often than not the attorney will be confronted by the client who claims that they were unaware of their placement on the suspension list. 

      The scenario that will often be presented by the client is that he/she was stopped by police for an unrelated motor vehicle violation.  In the process of the police encounter they were informed by the officer that their license has been suspended and they were issued an additional summons for DWS.

      

THE STATE MAY BE UNABLE TO SHOW DUE PROCESS AND ADEQUATE NOTICE

      The Prosecutor should be required to show adequate notice of the suspension. In Parsekian v. Cresse75 N.J. Super. 405 (App Div. 1962), the court ruled that it was incumbent upon the Director of the State Division of Motor Vehicles (now MVC) to provide fair and adequate notice to the licensed driver of the proposed suspension of their license.  The court recognized that the Director could not arbitrarily suspend the license of a driver without providing both notice and enunciating specific reasons as to why the license was being suspended.  A later case, State v. Wenof102 N.J. Super. (Law Div. 1968), both reinforced and advanced the earlier Parsekiandecision. 

      Wenofrepresents the substantive foundation upon which all-subsequent cases involving the notice issue have been based.  In Wenof, the court again recognized the importance of adequate notice of suspension.  The court related, "There is always a risk that notice may not reach the intended person, but this is not the test for legal sufficiency.  The test is rather, whether the notice was reasonably calculated to reach the intended parties." Idat 375.  In Wenof, the MVC sent to a written notice of proposed suspension (for failure to satisfy a summons) by regular mail.  The MVC thereafter sent an order of suspension by ordinary mail. The notices were mailed to the defendant's last address. By failing to leave a forwarding address informing the MVC where he could be reached by mail, the court stated "he should not be heard to complain of lack of due process, He had it."  The court found the defendant guilty.

            In State v. Ferrier294 NJ Super. 198 (App. Div. 1996) a defendant attacked the validity of a suspension four months earlier. A two-judge panel rejected the challenged to a DWS and held that “An order of suspension by the Director is a decision by a state administrative agency which may only be challenged directly in the Appellate Division after all administrative remedies have been exhausted. R.2:2-3(a)(2); Pascucci v. Vagott71 N.J. 40, 53 (1976). Jurisdiction to consider an attack on a final decision of a state administrative agency is vested exclusively in the Appellate Division by way of appeal; the Law Division may not entertain such a challenge. State v. Doe165 N.J. Super 392, 400 (App. Div. 1979). To the extent that State v. Wenof, 102 N.J. Super 370, 374 (Law Div. 1968) and State v. Kindler191 N.J. Super. 358(Law Div. 1983), suggest the contrary, they are overruled.” However the 2-page Ferriercase did not address a ticket where the MVC notice of suspension was not mailed until after the DWS violation.

      In State v. Hammond116 N.J. Super. 244 (Cty. Ct. 1971) a notice of scheduled suspension and order of suspension for failure to appear for motor vehicle violations was mailed to defendant, but was returned undelivered to MVC by postal authorities.  The defendant was charged with misstatement of fact in an application for registration of a motor vehicle (39:3-37) and application for a registration certificate during suspension (39:3-34).  The defendant thereafter applied for and obtained a New Jersey registration certificate for vehicle.

      While in State v. Wenofthe defendant was found guilty, that case was distinguished in Hammond.  In Hammondthere was insufficient evidence of any notice to Hammond of a possible revocation of his registration certificate.  Therefore, there is no adequate proof to indicate that due process was satisfied in this case.  Hammond, 116 N.J. Super. at 248.

NOTICE BY IN-COURT SUSPENSION

      If your client is on the suspension list because he was suspended in a Courtroom for a prior violation, grounds to defend are very limited.  The most common violations which carry mandatory suspensions on first offense by the Municipal Courts are for driving while intoxicated (first offense 7-12 months), driving while suspended (up to 6 months), driving without insurance (1 year), and possession of Marijuana or paraphernalia (6 months-2 years).  A Municipal Court also has the power to suspend a driver's license for reckless driving, excessive speeding, or where the judge finds a person guilty of such a willful violation of the subtitle as shall in the court's discretion, justify such revocation (NJSA 39:5-31).

      If a court suspended the client’s driver’s license, the prosecution in a subsequent DWS needs to introduce into evidence a certified abstract from the MVC.  It is not necessary for the state to demonstrate that notice was received by the defendant.  The defense may still challenge the suspension by introducing evidence that the prior in-court suspension was improper.  For example, if the defendant was not notified to be in court and the court then acted without the defendant being present.  Possibly, the prior suspension could be attacked in the original court as being illegal and/or unconstitutional.  This may be permitted under State v. Laurick120 NJ 1 (1990), State  v. Hrycak 184 N.J. 35 (2005), State v. Bringhurst401 NJ Super. 421 (App. Div. 2008). However, State v. Ferrierindicates a defendant should not argue a prior court suspension that was in error.

NOTICE OF SUSPENSION BY MVC

      Where the client was suspended by the MVC, the state should be required to introduce 1. Notice of scheduled suspension. 2. Proof of mailing notice. 3. Order of suspension. 4. Proof of mailing order. 5. Certified motor vehicle abstract. Defense counsel should argue a certified abstract alone is not sufficient to convict if the defendant was suspended only by the MVC.

      If the order of suspension was mailed on December 1, 2008 and the DWS offense took place December 2, 2008, a good defense argument is that the Order did not reach his house until after the ticket for DWS.

      Many suspensions today exist because people forgot to pay an insurance surcharge. Every insurance surcharge bill serves as a notice of suspension.  Indigency is not a defense for failure to pay a surcharge.

DEFENSES

      A valid suspension of a driver's license cannot be effectuated in the absence of a written notice to the licensee at his last known address, reciting the fact that the suspension will take place and the date of commencement of the suspension. State v. Kindler191 N.J. Super. 358, 360 (Law Div 1983).  Failure to appear for a summons is not a substitute for the written notice required by the statute, Idat 361.  The court also noted that its research does not have statutory revealing authority for the Municipal Judge to suspend driving privileges. Idat 362.

      Motorists suspended for any reason remain suspended until they pay a $100.00 MVC restoration fee.  According to the harsh decision in State v. Zalta217 N.J. Super. 209 (App. Div 1987) even if a prior court imposed suspension of 6 months is over, the suspension continues until actual restoration of the license.  Plea-bargaining is permitted in DWS matters.  Most Prosecutors agree with State v. Somma215 N.J. Super. 142 (Law Div 1986) where the court determined that the failure to pay the $100.00 fee for restoration of the suspended driver's license does not extend the period of suspension. 

       Many times individuals are told by a court their license is suspended for a certain number of months, but they are usually not told they must pay a restoration fee to actually get their license back. Individuals who pay a surcharge late will have their licenses suspended initially for the failure to  pay.  Even after the surcharge is paid they remain suspended until the $100.00 restoration fee is paid.  Often, "plea bargaining" or "alternative dispositions" can be worked out to avoid the harsh consequences of DWS and the equitable rationale of  State v. Sommais followed.

OUT OF STATE SUSPENSIONS

      If a person's driver's license has been suspended in another state, they can still be charged with DWS under NJSA 39:3-40.  Whether the prosecutor can present sufficient evidence for a court to find the driver guilty beyond a reasonable doubt is a different story. In State v. Profita183 N. J. Super. 425 (App. Div 1982), defendant was a New York driver suspended in New York for failure to respond to a summons.  She drove in New Jersey and was charged with driving while suspended and admitted she knew she was suspended in New York.  The Court affirmed the conviction even through the New Jersey MVC took no action to suspend her New Jersey driving privileges. 

      If the defendant in Profitadid not admit her license was suspended and was unaware her license was suspended, the prosecutor may have had evidence problems. Certainly the due process-notice requirements of Wenof, Hammond, and Parsekian v. Cresse  continue to apply.

      A little known 1991 Law caused havoc and driver license suspension to thousands of individuals facing charges for violating any ordinance or disorderly person offense in New Jersey by P.L. 1991, Chapter 240, approved August 5, 1991. Pursuant to NJSA 2A:8-27.1: 

      “If a defendant charged with a disorderly persons offense, a petty disorderly persons offense, a violation of a municipal ordinance, or a violation of any other lawof this State for which a penalty may be imposed fails to appear at any scheduled court proceeding after written notice has been given to said defendant pursuant to the Rules Governing the Courts of the State of New Jersey, a municipal court may order the suspension of the persons driving privileges or nonresident reciprocity privilege or prohibit the person from receiving or obtaining driving privileges until the pending matter is adjudicated or otherwise disposed of, except by dismissal for failure of defendant to appear.”

      NJSA 2A:8-27.1 thus gives a Municipal Court the power to suspend a driver's license for a person charged with violations such as littering or drinking in public if they fail to or forget to appear.

      Prior to any action being taken this statute requires that the defendant shall be given notice of the proposed action and afforded an opportunity to appear before the court to contest the validity of the proposed action. Sometimes the notice will not comply with due process requirements.

      NJSA 2A: 8-27.1(2) provides if a defendant sentenced to pay a fine or costs, make restitution, perform community service, serve a term of probation, or do any other act as a condition of that sentence fails to do so a municipal court may order the suspension of the person's driving privileges or nonresident reciprocity privilege or prohibit the person from receiving or obtaining driving privileges until the terms and conditions of the sentence have been performed or modified.

      

PARKING ADJUDICATION ACT OFFENDER

      "Scofflaws" who took their parking tickets and threw them away or forgot to pay tickets now have their licenses eventually suspended under the Parking Offense Adjudication Act. (NJSA 39:4-139.2).  If a person fails to appear or pay for a ticket, the court may give notice to the vehicle owner that the failure to appear or pay will result in suspension of driver's license.  Pursuant to NJSA 39:4-139.10(b) the judge or the Division of Motor Vehicles will suspend the driver's license of on owner license or operator who has not answered or appeared in response to a failure to appear notice or has not paid or otherwise satisfied outstanding parking from penalties.

      If the suspension was ordered by a court, good defense counsel can obtain from the suspending court copies of notices mailed to the defendant.  The due process/ notice requirements should apply as a defense.  If the originating court failed to give proper notice of the proposed suspension, defense counsel should argue the later court thereafter cannot find the defendant guilty of DWS.  Many times in DWS the State will only offer into evidence an abstract, which contains a small yellow strip of paper.  The paper often will indicate the suspension was "in count" and no proof of mailing is needed.  However, the MVC does actually mail out a notice and Order of suspension.  Courts rarely suspend a car owner's driving privilege if the driver is not present in Court.

CONTESTING PROPOSED ADMINISTRATIVE SUSPENSIONS

      The MVC, prior to suspending a license, or taking specific action against a driver must mail a notice to the driver informing them of the  proposed suspension or other action.  The proposed action to be taken against any licensee by the MVC becomes effective on the date set forth  on the notice except when otherwise specified, unless the licensee or his/ her attorney shall make a request, in writing, for a hearing within 25 days from the date of notice.  New Jersey Administrative Code (NJAC) 13:19-1.2.

      NJAC 13:19-1.2 requires the request for a hearing to set forth all disputed facts, legal issues and arguments.  Under NJAC 13:19-1.2, the MVC may either deny the request for a hearing, require a prehearing conference with a MVC employee, or transmit of the matter to the Office of Administrative Law for a hearing pursuant to NJAC 1:1. 

      The MVC employee who conducts the prehearing is referred to as a driver improvement specialist.  Often a resolution of the proposed administrative action is reached between the MVC and the licensee (ie- reduce suspension period -ex 180 days to 100 days).

      If the licensee accepts the resolution of the proposed administrative action, the license is to have abandoned any further opportunity to be heard NJAC 13:19-1.8(c).

      If the parties cannot reach a resolution, the matter should be submitted to the office of Administrative Law for a hearing NJAC 13:19-1.8(d)

ENHANCED PENALTIES

      As set forth previously, the DWS law calls for mandatory enhanced penalties on conviction second and third offense.  What counts as an offense?  Both the MVC and a court can suspend a driver for driving while suspended.

      In State v. Conte245 NJ Super. 629 (Law Div. 1990) the court examined a case where a defendant driver had two prior administrative suspensions by the MVC pursuant to NJSA 39:5-30 and NJAC 13:19-10.8.  The driver had no prior court imposed convictions.   

      NJSA 39:3-40 provides for penalties upon conviction.  In a well reasoned opinion by Judge Robert Longhi, on trial de novo, the court stated:

      The word conviction is not defined in the statute.  Black's Law Dictionary defines conviction as "the final judgment in a verdict or finding of guilty..." Black's Law Dictionary (6 ed. 1990) at 333.  NJSA 2C:44-4(a) defines "prior conviction of an offense" as "an adjudication by a courtof competent jurisdiction that the defendant committed an offense constitutes a prior conviction," Emphasis supplied. Conviction has also been defined as " the confession of the accusedin open courtor the verdict returned by the jury which ascertains and publishes the fact of guilt."  Tucker v. Tucker101 NJ Eq. 72, 73, 137 A. 40 (Ch. 1927).

      The motor vehicle statute, NJSA 39:3-40, is quasi-criminal and penal in nature and must be strictly construed against the State.  State v. Churchdale-Leasing Inc115 N.J. 83, 102, 557 A. 2d 277 (1989).  The word conviction, as it is used in NJSA 39:3-40, refers only to a plea or a finding of guilty in a court of competent jurisdiction and not an order of suspension entered by the MVC as the result of an administrative proceeding.  The two prior suspensions are not convictions and defendant must be viewed as a first offender under the statute.  State v. Conte245 N.J. Super. at 631

      The sentence imposed was reversed and the matter remanded for sentencing as a first offender.

CONCLUSION

      The defense of a person charged with driving while suspended is not impossible. There are a number of viable defense and arguments, which can be pursued to achieve a successful result. Advocacy, commitment and persistence are essential to defending a client in any municipal court matter. 

About the Author:

      

      Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton.  He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving.   He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges. 

                                                                                             

      In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, criminal hearings and contested administrative law hearings.

                                                                                             

      Since 1985, his primary concentration has been on litigation matters.  Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings,  Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Undocumented drivers with traffic tickets 39:3-10a Driving with an expired license

Undocumented drivers with traffic tickets

39:3-10a Driving with an expired license 

fine $0-  $500 

where the offender has been licensed in NJ or elsewhere (listed 39:3- 10A in ATS) 

or imprisonment in the county jail for not more than 60 days  

39:3-10b Driving without ever being licensed

39:3-10 b Fine or imprisonment for not more than 60 days and no license to issue for at least 180 days [This means a DL suspension for six months or you can’t apply for a DL for six months]

Fine $200- $500 

 or imprisonment in the county jail for not more than 60 days  

    Hire an attorney to try to avoid jail

More info at

http://www.njlaws.com/unlicensed_drivers.html

39:3-10   Penalties 

39:3-10  No person shall drive a motor vehicle on a public highway in this State unless the person is under supervision while participating in a behind-the-wheel driving course pursuant to section 6 of P.L.1977, c.25 (C.39:3-13.2a) or is in possession of a validated permit, or a probationary or basic driver's license issued to that person in accordance with this article.

No person under 18 years of age shall be issued a basic license to drive motor vehicles, nor shall a person be issued a validated permit, including a validated examination permit, until the applicant has passed a satisfactory examination and other requirements as to the applicant's ability as an operator.  The examination shall include a test of the applicant's vision, the applicant's ability to understand traffic control devices, the applicant's knowledge of safe driving practices, including the dangers of driving a vehicle in an aggressive manner, which shall include, but not be limited to, unexpectedly altering the speed of a vehicle, making improper or erratic traffic lane changes, disregarding traffic control devices, failing to yield the right of way, and following another vehicle too closely, and of the effects that ingestion of alcohol or drugs has on a person's ability to operate a motor vehicle, the applicant's knowledge of such portions of the mechanism of motor vehicles as is necessary to insure the safe operation of a vehicle of the kind or kinds indicated by the applicant, and of the laws and ordinary usages of the road.  No person shall sit for an examination for any permit without exhibiting photo identification deemed acceptable by the commission, unless that person is a high school student participating in a course of automobile driving education approved by the State Department of Education and conducted in a public, parochial, or private school of this State, pursuant to section 1 of P.L.1950, c.127 (C.39:3-13.1).  The commission may waive the written law knowledge examination for any person 18 years of age or older possessing a valid driver's license issued by any other state, the District of Columbia, or the United States Territories of American Samoa, Guam, Puerto Rico, or the Virgin Islands.  The commission shall be required to provide that person with a booklet that highlights those motor vehicle laws unique to New Jersey.  A road test shall be required for a probationary license and serve as a demonstration of the applicant's ability to operate a vehicle of the class designated.  No person shall sit for a road test unless that person exhibits photo identification deemed acceptable by the commission.  A high school student who has completed a course of behind-the-wheel automobile driving education approved by the State Department of Education and conducted in a public, parochial, or private school of this State, who has been issued a special learner's permit pursuant to section 1 of P.L.1950, c.127 (C.39:3-13.1) prior to January 1, 2003, shall not be required to exhibit photo identification in order to sit for a road test.  The commission may waive the road test for any person 18 years of age or older possessing a valid driver's license issued by any other state, the District of Columbia, or the United States Territories of American Samoa, Guam, Puerto Rico, or the Virgin Islands.  The road test shall be given on public streets, where practicable and feasible, but may be preceded by an off-street screening process to assess basic skills.  The commission shall approve locations for the road test which pose no more than a minimal risk of injury to the applicant, the examiner, and other motorists.  No new locations for the road test shall be approved unless the test can be given on public streets.

A person who successfully completes a road test for a motorcycle license or a motorcycle endorsement when operating a motorcycle or motorized scooter with an engine displacement of less than 231 cubic centimeters shall be issued a motorcycle license or endorsement restricting the person's operation of such vehicles to any motorcycle with an engine displacement of 500 cubic centimeters or less.  A person who successfully completes a road test for a motorcycle license or motorcycle endorsement when operating a motorcycle with an engine displacement of 231 or more cubic centimeters shall be issued a motorcycle license or endorsement without any restriction as to engine displacement.  Any person who successfully completes an approved motorcycle safety education course established pursuant to the provisions of section 1 of P.L.1991, c.452 (C.27:5F-36) shall be issued a motorcycle license or endorsement without restriction as to engine displacement.

The commission shall issue a basic driver's license to operate a motor vehicle other than a motorcycle to a person over 18 years of age who previously has not been licensed to drive a motor vehicle in this State or another jurisdiction only if that person has:  (1) operated a passenger automobile in compliance with the requirements of this title for not less than one year, not including any period of suspension or postponement, from the date of issuance of a probationary license pursuant to section 4 of P.L.1950, c.127 (C.39:3-13.4); (2) not been assessed more than two motor vehicle points; (3) not been convicted in the previous year for a violation of R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), P.L.1992, c.189 (C.39:4-50.14), R.S.39:4-129, N.J.S.2C:11-5, subsection c. of N.J.S.2C:12-1, or any other motor vehicle-related violation the commission determines to be significant and applicable pursuant to regulation; and (4) passed an examination of the applicant's ability to operate a motor vehicle pursuant to this section.

The commission shall expand the driver's license examination by 20%. The additional questions to be added shall consist solely of questions developed in conjunction with the Department of Health concerning the use of alcohol or drugs as related to highway safety.  The commission shall develop, in conjunction with the Department of Health, supplements to the driver's manual which shall include information necessary to answer any question on the driver's license examination concerning alcohol or drugs as related to highway safety.

Up to 20 questions may be added to the examination on subjects to be determined by the commission that are of particular relevance to youthful drivers, including the dangers of driving a vehicle in an aggressive manner, which shall include, but not be limited to, unexpectedly altering the speed of a vehicle, making improper or erratic traffic lane changes, disregarding traffic control devices, failing to yield the right of way, and following another vehicle too closely, after consultation with the Director of the Division of Highway Traffic Safety in the Department of Law and Public Safety.

The commission shall expand the driver's license examination to include a question asking whether the applicant is aware of the provisions of the "Revised Uniform Anatomical Gift Act," P.L.2008, c.50 (C.26:6-77 et al.) and the procedure for indicating on the driver's license the intention to make a donation of body organs or tissues pursuant to P.L.1978, c.181 (C.39:3-12.2).

The commission shall expand the driver's license examination to include a question asking whether the applicant is aware of the dangers of failing to comply with this State's motor vehicle traffic laws and the "STOP for Nikhil Safety Pledge" set forth in subsection e. of R.S.39:3-41.

Any person applying for a driver's license to operate a motor vehicle or motorized bicycle in this State shall surrender to the commission any current driver's license issued to the applicant by another state or jurisdiction upon the applicant's receipt of a driver's license for this State.  The commission shall refuse to issue a driver's license if the applicant fails to comply with this provision.  An applicant for a permit or license who is less than 18 years of age, and who holds a permit or license for a passenger automobile issued by another state or country that is valid or has expired within a time period designated by the commission, shall be subject to the permit and license requirements and penalties applicable to State permit and license applicants who are of the same age; except that if the other state or country has permit or license standards substantially similar to those of this State, the credentials of the other state or country shall be acceptable.

The commission shall create classified licensing of drivers covering the following classifications:

a.Motorcycles, except that for the purposes of this section, motorcycle shall not include any three-wheeled motor vehicle equipped with a single cab with glazing enclosing the occupant, seats similar to those of a passenger vehicle or truck, seat belts and automotive steering or any vehicle defined as a motorcycle pursuant to R.S.39:1-1 having a motor with a maximum piston displacement that is less than 50 cubic centimeters or a motor that is rated at no more than 1.5 brake horsepower with a maximum speed of no more than 35 miles per hour on a flat surface.

b.Omnibuses as classified by R.S.39:3-10.1 and school buses classified under N.J.S.18A:39-1 et seq.

c.(Deleted by amendment, P.L.1999, c.28).

d.All motor vehicles not included in classifications a. and b. A license issued pursuant to this classification d. shall be referred to as the "basic driver's license."

Every applicant for a license under classification b. shall be a holder of a basic driver's license.  Any issuance of a license under classification b. shall be by endorsement on the basic driver's license.

A driver's license for motorcycles may be issued separately, but if issued to the holder of a basic driver's license, it shall be by endorsement on the basic driver's license.  The holder of a basic driver's license or a separately issued motorcycle license shall be authorized to operate a motorcycle having a motor with a maximum piston displacement that is less than 50 cubic centimeters or a motor that is rated at no more than 1.5 brake horsepower with a maximum speed no more than 35 miles per hour on a flat surface.

The commission, upon payment of the lawful fee and after it or a person authorized by it has examined the applicant and is satisfied of the applicant's ability as an operator, may, in its discretion, issue a license to the applicant to drive a motor vehicle.  The license shall authorize him to drive any registered vehicle, of the kind or kinds indicated, and shall expire, except as otherwise provided, on the last day of the 48th calendar month following the calendar month in which such license was issued.

The commission may, at its discretion and for good cause shown, issue licenses which shall expire on a date fixed by it. If the commission issues a license to a person who has demonstrated authorization to be present in the United States for a period of time shorter than the standard period of the license, the commission shall fix the expiration date of the license at a date based on the period in which the person is authorized to be present in the United States under federal immigration laws.  The commission may renew such a license only if it is demonstrated that the person's continued presence in the United States is authorized under federal law.  The fee for licenses with expiration dates fixed by the commission shall be fixed by the commission in amounts proportionately less or greater than the fee herein established.

The required fee for a license for the 48-month period shall be as follows:

Motorcycle license or endorsement: $18.

Omnibus or school bus endorsement: $18.

Basic driver's license: $18.

The commission shall waive the payment of fees for issuance of omnibus endorsements whenever an applicant establishes to the commission's satisfaction that said applicant will use the omnibus endorsement exclusively for operating omnibuses owned by a nonprofit organization duly incorporated under Title 15 or 16 of the Revised Statutes or Title 15A of the New Jersey Statutes.

The commission shall issue licenses for the following license period on and after the first day of the calendar month immediately preceding the commencement of such period, such licenses to be effective immediately.

All applications for renewals of licenses shall be made in a manner prescribed by the commission and in accordance with procedures established by it.

The commission in its discretion may refuse to grant a permit or license to drive motor vehicles to a person who is, in its estimation, not a proper person to be granted such a permit or license, but no defect of the applicant shall debar the applicant from receiving a permit or license unless it can be shown by tests approved by the commission that the defect incapacitates the applicant from safely operating a motor vehicle.

In addition to requiring an applicant for a driver's license to submit satisfactory proof of identity and age, the commission also shall require the applicant to provide, as a condition for obtaining a permit and license, satisfactory proof that the applicant's presence in the United States is authorized under federal law.

If the commission has reasonable cause to suspect that any document presented by an applicant as proof of identity, age or legal residency is altered, false or otherwise invalid, the commission shall refuse to grant the permit or license until such time as the document may be verified by the issuing agency to the commission's satisfaction.

A person violating this section shall be subject to a fine not exceeding $500 or imprisonment in the county jail for not more than 60 days, but if that person has never been licensed to drive in this State or any other jurisdiction, the applicant shall be subject to a fine of not less than $200 and, in addition, the court shall issue an order to the commission requiring the commission to refuse to issue a license to operate a motor vehicle to the person for a period of not less than 180 days.  The penalties provided for by this paragraph shall not be applicable in cases where failure to have actual possession of the operator's license is due to an administrative or technical error by the commission.

Nothing in this section shall be construed to alter or extend the expiration of any license issued prior to the date this amendatory and supplementary act becomes operative.

Copyright 2016 Vercammen Law

AAA APPLICATION FOR LEGAL DEFENSE REIMBURSEMENT

AAA APPLICATION FOR LEGAL DEFENSE REIMBURSEMENT

CRITERIA: Member must enter and maintain a plea of “not guilty.” This includes charges that have been dismissed

before judgment.

The AAA Member must have been a Member in good standing at the time of offense.

No reimbursements will be made for charges to include driving under the influence, drugs or narcotics, revoked or

suspended driver’s license, illegal use or falsification of license, attempt to elude the police, or hit and run.

No reimbursement is made for a guilty plea, guilty plea on a lesser charge, court costs, fines, witness fees, or

investigations.

Application must be received within 60 days of the final trial for reimbursement consideration.

INSTRUCTIONS: IF ALL ELIGIBILITY CRITERIA HAVE BEEN MET PLEASE COMPLETE THE

FOLLOWING FORM.

Please include all of the following support material:

1) Copy of citation 2) Copy of attorney bill 3) Copy of final disposition/court summary

Verification will be forwarded to your attorney for completion before any disbursement is processed.

Member Name: Member Number:

Member Address:

Phone #:

Court:

Date of Conviction/Citation:

Name and Address of Attorney:

Phone # of Attorney:

Type of Occurrence:

Manslaughter by Auto: min classic $400/max $1000 min plus $600/max $1500 min premier $800/max $2000

Assault & Battery by Auto: min classic $100/max $250 min plus $200/max $500

Moving Traffic Violation: min classic $50/max $125 min plus $100/max $250

Maximum applies to appeals only

Signature of Applicant: Date:

NOTE: APPLICATION MUST BE RETURNED IN THE PROVIDED ENVELOPE OR TO CORRESPONDING

ADDRESS BELOW WITHIN 60 DAYS OF THE FINAL TRIAL OR WILL BE NULL AND VOID.

18_344367 (rev. 04/01/2018)

RETURN COMPLETED FORM TO: AAA | Attn: Member Relations | P.O. Box 55610 | Lexington, KY 40555

OR BY EMAIL TO: ACA_reimbursements@aaa-alliedgroup.com. For questions, call 800-763-8200 and choose option 1 for reimbursement. source https://midatlantic.aaa.com/automotive/ers-refund-form

source