Winter 2019 NJ Municipal Court Law Review
Index
1.Supreme Court rules DWI Breath test results produced by Alcotest machines are inadmissible if not calibrated using a NIST-traceable thermometer
2. Strip search permitted for indictable cases State v Brown
3 OK for Rutgers University police officer to stop and arrest a defendant for DWI State v. Goines
4. NJ MVC was required here to have hearing to suspend for Maryland DWIHeld v. NJ MVC
5. Pope Francis blesses NJ Bar members p1
6. Ethics in Your Practice in Rome p2
7 Ken Vercammen and Senator Nick Scutari Sponsor of NJ Legal Marijuana at NJ Bar Rome meeting p3
8. Top 25 Municipal Court Cases and Criminal cases in the past year-Webinar available p3
9 Spring seminars
1.Supreme Court rules Breath test results produced by Alcotest machines are inadmissible if not calibrated using a NIST-traceable thermometer State v. Cassidy (A-58-16; 078390)
The Special Master’s findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible. This opinion calls into question any test result involving a machine the sergeant who handled, including devices used by local police in Middlesex, Monmouth, Ocean, Somerset, and Union counties between 2008 and 2016.
If someone plead guilty to a DWI in Central NJ prior to 2016 where State Trooper Marc Dennis tested the machine, the driver may be able to file a petition for Post Conviction Relief. 20,667 drivers had DWI test using Alcotest machines improperly calibrated by Tpr. Dennis.
The Court considered the admissibility of breath test results produced by Alcotest machines not calibrated using a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology (NIST).
Marc W. Dennis, a coordinator in the New Jersey State Police’s Alcohol Drug Testing Unit, was tasked with performing the semi-annual calibrations on Alcotest instruments used in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. He is charged with neglecting to take required measurements and having falsely certified that he followed the calibration procedures. Dennis was indicted in 2016 for failing to use a NIST- traceable thermometer to measure the temperature of simulator solutions used to calibrate Alcotest devices. When Dennis was criminally charged, the Attorney General’s Office notified the Administrative Office of the Courts that evidential breath samples from 20,667 people were procured using Alcotest machines calibrated by Dennis.
HELD: The Special Master’s findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible.
1. This case is justiciable despite defendant’s passing. The Court will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. The reliability and admissibility of thousands of breath samples, often used as the sole evidence to support a conviction, is of significant public importance.
2. Scientific test results are admissible in a criminal trial only when the technique is shown to be generally accepted as reliable within the relevant scientific community. Chun, 194 N.J. at 91. Although the Court recently adopted the factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), and a methodology-based approach for determining scientific reliability in certain areas of civil law, the Court has not altered its adherence to the general acceptance test for reliability in criminal matters. The proponent of the technique has the burden to clearly establish general acceptance and may do so using
(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions. The party proffering the evidence need not show infallibility of the technique nor unanimity of its acceptance in the scientific community.
(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions. The party proffering the evidence need not show infallibility of the technique nor unanimity of its acceptance in the scientific community.
3. Of the State’s witnesses, the Special Master found only the testimony of Dr. Brettell worthy of substantial weight; he found defendant’s expert credible. The Court defers to and adopts the Special Master’s detailed credibility findings.
4. Based on the credible testimony, the Special Master determined that accurate temperature readings of the simulator solutions are “the foundation upon which the entire calibration process is built.” The Special Master found NIST traceability “essential” to confidence in the Alcotest’s results and that the two Draeger-manufactured probes were not NIST-traceable and were insufficient substitutes for the use of a NIST-traceable thermometer. The Special Master also found it particularly significant that the NIST-traceable thermometer was the only temperature-measuring device used in the calibration process that was independent from the Alcotest and not manufactured and calibrated by Draeger. The Special Master found it “extremely important and persuasive” that current protocol treats the failure to achieve an in- range temperature reading using the NIST-traceable thermometer as an event of sufficient magnitude to abort a calibration. The Special Master reasoned that such facts clearly cut against the State’s argument that the use of the thermometer is an unnecessary redundancy. Further, the Special Master rejected the State’s theory that ten simultaneous failures would need to occur for the certainty of Alcotest results to be compromised, finding instead that the evidence showed that three relatively minor errors could cause undetected miscalibrations. The Special Master determined that the State had not shown that other states’ practices revealed general acceptance of the reliability of Alcotest results without the use of a NIST- traceable thermometer. Because the Special Master’s findings are supported by substantial credible evidence in the record, the Court adopts them.
5. Applying the general acceptance standard to the Special Master’s findings, the Court holds that the State failed to carry its burden and affirms the Special Master’s conclusion. Temperature measurements that are NIST-traceable are generally accepted as reliable by the scientific community. Part of that reliability lies in the fact that the level of uncertainty of each temperature measurement is known. The two Draeger-manufactured probes fail to meet the NIST’s standards and the measure of uncertainty in their temperature readings is unknown. The Court does not accept the State’s contention that the risk of miscalibration is infinitesimal due to the numerous other fail-safes in the calibration procedure. As Dr. Brettell testified, it was that very fear of a laboratory bias that led him to include the NIST- traceable thermometer in the calibration procedure.
6. The Court orders the State to notify all affected defendants of its decision that breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible and commends to the State that it require the manual recording of the NIST- traceable readings going forward. Further, the Court lifts the stay on all pending cases so that deliberations may commence on whether and how those cases should proceed. For those cases already decided, affected defendants may now seek appropriate relief. Because the State waited approximately a year to notify the affected defendants, the Court relaxes the five-year time bar, R. 7:10-2(b)(2), in the interests of justice. The Court asks the Director of the Administrative Office of the Courts to monitor these cases and recommend how best to administer them in the event any special measures are needed. Finally, as to defendant Cassidy, the Court exercises its original jurisdiction and vacates her conviction.
2. Strip search permitted for indictable cases State v Brown__ NJ Super. _ (App. Div. 2018)
The panel affirms the trial court's order denying defendant's motion to suppress five bricks of heroin seized from defendant's groin area pursuant to a strip search following defendant's arrest for indictable drug offenses.
The panel addressed the strip search statute, N.J.S.A. 2A: 161A-1 to -10, which affords certain protections to persons who are arrested or detained for non-indictable offenses, and whether the Attorney General Guidelines for strip searches extend those protections to persons arrested or detained for crimes.
The panel concludes that neither the legislative history nor the plain terms of the statute authorized the Attorney General to promulgate Guidelines to extend the statute's protections to persons detained or arrested for crimes. The panel further concludes that the strip search was justified here by probable cause and reasonable exigent circumstances, thereby satisfying the Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution. (17-06-1207,
3 OK for Rutgers University police officer to stop and arrest a defendant for DWI State v. GoinesN.J. Super. Law Div. Docket NO. MA-37-2016
The state appealed the ruling of a municipal court judge that determined a Rutgers University Police Officer lacked jurisdiction to stop and arrest defendant for DUI. The officer allegedly observed defendant illegally cross a double-yellow line, after which she activated her lights and pulled over defendant in the city of New Brunswick. Defendant was transported to the police station for an Alcotest, which revealed a BAC of 0.14%. Before the municipal court, defendant moved to dismiss the DUI summons for lack of jurisdiction. Defendant cited a memorandum of understanding between Rutgers and New Brunswick that permitted Rutgers police officers to enforce motor vehicle laws on certain streets; because defendant's arrest did not occur on one of those streets, the municipal court judge granted defendant's motion. On appeal, the court reversed the ruling of the municipal court. The court noted that, in isolation, Title 18A appeared to preclude university police officers from enforcing traffic laws off-campus except at the request of municipal authorities. However, the court found that the Motor Vehicle Code also permitted "any law enforcement officer" to arrest someone for DUI. The court noted that this provision had been interpreted to permit municipal police officers to arrest drivers for DUI outside of those officers' territorial jurisdiction. The court interpreted the legislature's use of the term "any law enforcement officer" to mean that the legislature intended to expand the number of officials with authority to arrest drunk drivers. The court therefore held that it was consistent with the statute to give university police jurisdiction to enforce DUI laws. The court read this statute with Title 18A as preventing university police officers from being overtaxed, while not preventing those officers from stopping crimes occurring right before their eyes. Source https://www.law.com/njlawjournal/almID/1541469624NJMA372016/
4. NJ MVC was required here to have hearing to suspend for Maryland DWIHeld v. New Jersey Motor Vehicle Comm'n, N.J. Super. App. Div. Unreported
Plaintiff appealed defendant commission's final decision suspending plaintiff driver's license for 10 years, after plaintiff had pled guilty to DUI in Maryland. At the time of his Maryland conviction, plaintiff had three previous DUI convictions in New Jersey. Plaintiff opposed the suspension of his license, arguing that the length was excessive and challenging the equivalency of his Maryland conviction under New Jersey law. However, without holding an evidentiary hearing the MVC concluded that the Maryland statue for which plaintiff was convicted was substantially similar to the New Jersey statute for purposes of license suspension pursuant to the Interstate Driver License Compact. On appeal, plaintiff argued that his Maryland conviction was not substantially similar to a conviction under New Jersey law because the Maryland statute allowed for conviction with a lower level of impairment than required for conviction in New Jersey.
The court agreed with plaintiff that he was entitled to an evidentiary hearing to establish the equivalency of his Maryland conviction. The court noted that while New Jersey permitted DUI conviction per se, based on a blood test, or by officer observation, Maryland permitted conviction "while under the influence of alcohol", "under the influence of alcohol per se", and "while impaired by alcohol". The court further noted that Maryland defined "impaired by alcohol" as a state less than intoxication where alcohol nonetheless affected one's coordination. Accordingly, the court concluded that further hearing was necessary to determine whether the "while impaired by alcohol" provision of the Maryland DUI statute was substantially similar to the observational provision of the New Jersey DUI statute. Source ____
Photos
Pope Francis blesses NJ Bar members p1 [two photos]
Ethics in Your Practice in Rome p2
Speakers Steven L. Menaker, Esq.
Daniel Rosner, Esq. Past NIAJ President
Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year
Thomas H. Prol, Esq, Past NJSBA President
Ken Vercammen and Senator Nick Scutari Sponsor of NJ Legal Marijuana at NJ Bar Rome meeting p3
Top 25 Municipal Court Cases and Criminal cases in the past year-Webinar available p3
Speakers
Donovan Bezer, Esq.-Municipal Court Prosecutor Metuchen, Jersey City
Kenneth Vercammen, Esq. Past Chair, NJSBA Municipal Court Practice Section, Past NJSBA Municipal Court Practitioner of the Year
David R. Spevack, Esq. Municipal Court Prosecutor Edison and Woodbridge, Carteret, Governor Murphy Transition Team representative from Hispanic Bar Association
Francis M. Womack, III, Esq.-Municipal Court Prosecutor Edison, Piscataway and Sayreville, Carteret, Mayor- North Brunswick
Chirag Mehta, Esq. Municipal Court Prosecutor Irvington, Alternate Prosecutor Edison, North Brunswick and Morris Plains
Webinar available online from NJ Bar
Spring seminars
1. Winning Strategies for Municipal Court Law 3-25-2019, NJ Law Center
2. Ethically Marketing Your Law Practice- Learn how to make more money by ethically marketing your practice...and staying ethically compliant! 4-8-2019, NJ Law Center
3. Nuts & Bolts of Elder Law & Estate Administration Annual Seminar for Attorneys and professionals involved in Estate Planning May 6, 2019 Law Center
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Kenneth Vercammenis an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.
Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.
For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.
Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4thdegree black belt.
KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
