Major Changes in Municipal Court - Seminar :Recent DWI and Criminal Cases and the New Alcotest Breath Machine

NJSBA Annual Meeting- Borgata Resort, Atlantic City


Thursday, May 17 10:30 a.m. - noon

Discussion of new DWI law with .08 BAC; the new 7110 breathalyzer testing machine; recent cases involving DWI or drugs; the refusal law and pending legislation; court rules to limit plea bargaining; blood test admissibility in a DWI or drug case suppression and other pre-trial motions.

Speakers:
Richard M. Keil, Esq.
Oakhurst

John Menzel, Esq.
Point Pleasant Beach

Kenneth A. Vercammen, Esq.
Kenneth Vercammen & Associates, Edison

Hon. Marilyn E. Williams
Newark Municipal Court

Sponsors: Municipal Court Practice Section
Criminal Law Section
General Practice Section
Young Lawyers Division
ICLE

Certified Trial Attorneys: 1.5 criminal credits pending
PA CLE: 1.5 substantive credits pending
NY CLE (Transitional/Non-transitional): 1.5 professional practice credits
One speaker will also provide updated information on the 7100 Alcotest Mark III MK breath test machine that will replace the
Breathalyzer Model 900 and 900A, used in New Jersey for the past thirty years. He will also discuss the science and operation of this new breath test machine, and consider its impact on breath testing in New Jersey. This information is critical for attorneys who represent plaintiffs or defendants in DWI matters.

Materials Provided to all Attendees:
Call NJSBA at 732-249-5000 for meeting registration details

For Sub-Lease: Office Space - 2053 Woodbridge Ave, Edison, NJ

Ideal for satellite office in fast growing Edison area, or for an Attorney, Financial Planner, Accountant, Insurance Agent, and other Business Professional.

The offices are located on the 1st floor of the building.

Front window office 12.1 x 7.5 - 90 square feet
connecting office 12.4 x 9.4 - 116 square feet
plus client use of joint reception room 16.6 x 7.2

$600 per month
Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law.

The following is included with rental:
1. Lighting/ Utilities
2. Bathroom Supplies
3. Landscaping / Snow Removal
4. Cleaning of Common Area
5. cold water, hot water, municipal water/sewer charges
6. Use of conference table for meetings or depositions
7. Permit you to put a sign in the front window
8. Use of our audio tape and video library.
9. Use of the front room reception area
10. Use of 2nd floor conference room by appointment

We also have available additional approximately 700 square feet of office space for $1,000.00 per month
Call Kenneth Vercammen Law Office at 732-572-0500 to schedule an appointment.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Alibi Rule Infringes on Defendant's Rights. State v. Bradshaw ___ NJ Super. ___ (App. Div. Decided April 2, 2007) A-4731-02T4.

The court held that the application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 NJ Super. 346 (App. Div. 1974), and State v. Gonzalez, 223 NJ Super. 377 (App. Div.), certif. denied, 111 NJ 589 (1988). Combined with a highly objectionable summation by
the prosecutor, the error was not harmless. A new trial is required.

Defendant Can Contest Lab Reports As Hearsay. State v. Kent 391 N.J. Super. 352 (App. Div. Decided March 22, 2007) A-3137-05T1.

Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction. At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A:62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

The court reaffirms the holdings in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory reports) concluding that the hearsay documents are "testimonial" under Crawford v. Washington, 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.

However the court, also noted that, unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such cross-examination beyond current federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that legislative and/or rule-making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions.

Defendant's DWI conviction is affirmed on independent grounds, based upon the arresting officer's numerous observations indicative of defendant's intoxication, and defendant's admission of drinking.

Fireman & Police Now Have Right to Bring Claim if Injured Due to Negligence. Ruiz v. Mero 189 NJ 525 (2007).

N.J.S.A. 2A:62A-21 abolished the firefighter’s rule. First responders may recover damages from a property owner for any injury sustained when answering an emergency.

Fire Investigators Can Remain on Scene and Seize Items in Plain View. State v. Amodio 390 NJ Super 313 (App. Div. 2007).

In this matter, defendant was convicted of passion/provocation manslaughter, felony murder, arson and other offenses arising from the death of his girlfriend and her son in a fire at defendant's home. The court held that: 1) evidence obtained by the police and other officials in the fire-damaged home was properly seized without a warrant because the evidence was found during an investigation into the cause and origin of the fire, which was conducted within a reasonable time after the fire had been extinguished; and 2) the warrantless seizure of defendant's clothes was permissible because those garments had been removed from defendant in order to provide emergency medical assistance.

Receipt of Nine Checks Not a Criminal Enterprise to Deny PTI. State v. Watkins 390 NJ Super. 302 (App. Div. 2007).

In this appeal from a denial of defendant's appeal of his rejection from pre-trial intervention (PTI), The court addressed the meaning of PTI Guideline 3(i)(2), which directs consideration of whether the crime was "part of a continuing criminal business or enterprise". Reviewing the prior cases that have addressed this Guideline, The court concludes that the Prosecutor and the reviewing judge erroneously applied Guideline 3(i)(2) to the facts of this case which involved improper receipt of unemployment checks over a four-month period. Defendant's conduct did not possess the characteristics of a "business" or "enterprise" nor did it persist for a long enough period to be deemed "continuing," as that phrase has been applied in earlier cases. As a result, The court remanded to the Prosecutor for reconsideration of defendant's application without consideration of Guideline 3(i)(2).

DNA Testing of Juvenile Criminals Constitutional. A.A. v. Attorney General of New Jersey 189 NJ 129 (2007).

DNA test results lawfully obtained pursuant to the New Jersey DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17- 20.28, as amended, may be used to solve crimes committed prior to the taking of the DNA test.

DNA Testing of Criminals Does Not Violate Constitution. State v. O’Hagen 189 NJ 140 (2007).

The New Jersey DNA Database and Databank Act of N.J.S.A. 53:1- 20.17-20.28, as amended, does not violate the rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1 and 7 of the New Jersey Constitution.

If Billing Dispute, Customer Not Guilty of Shoplifting. State v. Goodmann 390 NJ Super. 259 (App. Div. 2007).

The court held that a customer who, following a billing dispute with Walgreens regarding the cost of photo processing, takes the finished photographs without paying for them, but gives his name and address to the store manager, cannot be found guilty of shoplifting. Photo processing constitutes a service, and therefore, Walgreens was not acting as a "merchant" when it contracted to develop the customer's film. Further, the photographs that Walgreens produced were not "merchandise," because they lacked value to anyone other the customer and were not salable.
The court also held that a customer, engaged in a billing dispute, who left contact information so that the dispute could be settled, cannot be found to have "purposely" taken possession of the "merchandise" with the intention of converting the same to his own use without "paying to the merchant the full retail value thereof."

1. Nurse Can Be Required to Testify in DWI Blood Case. State v. Renshaw 390 NJ Super. 456 (App. Div. 2007).

The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.