Fall Municipal Court Law Review 2020
1.Guilty plea vacated where driver did not admit to the accuracy of the test results.
State v. Vargas
2. Blood and urine samples could be taken before issuance of the search warrantas part of defendant's medical care
State v. Uppal
3. Stop reasonable where person ran from police even though description different
State v. Butler
4 Jail always applies to criminal driving while suspended, Laurick application denied
State v. Konecny
5. NJ Judiciary’s Online Dispute Resolution (ODR) to let pro se work online without hiring an attorney
6. New book Defending DWI and Drug Possession (2020) Bound book
7. Free Office Space for Transitional or New Attorney and work with Metuchen Public Defender and go to Court & Mentor program- Edison, NJ
8 [Photo of book]
1. Guilty plea vacated where driver did not admit to the accuracy of the test results. State v. Vargas Appellate Division
Defendant appealed the denial of his motion to vacate his guilty plea to DWI. Defendant crashed his vehicle and was taken to the hospital with serious injuries. A hospital blood test showed a BAC of .184 percent and he was charged with a per se DWI offense, careless driving, failure to keep right and failure to wear a seatbelt. He pled guilty to the DWI offense in April 2012. In 2018, he was again charged with DWI and he moved to vacate his 2012 DWI conviction to avoid enhanced punishment. Municipal court rejected defendant's arguments that the legal consequences of his guilty plea were not adequately explained to him and the factual basis for the guilty plea was insufficient. Defendant appealed to the Law Division, which affirmed.
Defendant appealed and court found his argument that he was not properly advised of the consequences of his plea lacked all merit. However, defendant's plea colloquy was "not ideal" and the formulation of the critical question posed to defendant concerning the BAC elements was problematic. Although defendant acknowledged he understood the blood test indicated his BAC was over the legal limit, he was never asked to acknowledge or acquiesce to the accuracy of the test results. Unreported Source Daily Briefing 9/11/2020 Daily Briefing, an exclusive New Jersey State Bar Association member benefit, in partnership with the New Jersey Law Journal. Join the NJSBA for this benefit!
2. Blood and urine samples could be taken before issuance of the search warrantas part of defendant's medical care
State v. Uppal Appellate Division
Defendant appealed from his judgment of conviction for vehicular homicide. Defendant's vehicle caused a chain reaction of rear-end collisions, causing one vehicle to burst into flames and kill the occupants of that vehicle. Defendant's vehicle flipped over; an off-duty EMT at the scene found defendant lying on the ground near his vehicle and began administering aid, noting the smell of alcohol on defendant's breath and the slow reaction of his pupils. Defendant admitted to the EMT that he had consumed alcohol; however, defendant later denied consuming alcohol to the investigating trooper. At the hospital, the treating physician ordered samples of defendant's blood drawn pursuant to normal procedures; state police later arrived and directed hospital personnel to retain the blood samples for law enforcement.
Police subsequently obtained a telephonic warrant to collect blood samples, and hospital personnel drew a sample of defendant's blood. The trial court also ordered the release of defendant's toxicology report and medical records related to the analysis of samples taken from defendant for medical treatment purposes. The records disclosed the presence of opiates in defendant's system and a BAC of at least .08. The trial court denied defendant's subsequent motion to suppress the initial blood and urine samples taken prior to the search warrant, finding no evidence that hospital staff drew the samples at the request of law enforcement.
On appeal, defendant challenged the denial of his motion to suppress the results of a toxicology test from samples taken from defendant by hospital personnel during the course of defendant's treatment following the accident. The court rejected defendant's challenge and affirmed his conviction, agreeing with the trial court that the blood and urine samples taken before issuance of the search warrant were drawn as part of defendant's medical care for injuries he suffered in the crash, as medical personnel suspected possible internal injuries. Unreported Source Daily Briefing 8/28/2020
3. Stop reasonable where person ran from police even though description different
State v. Butler Appellate Division
Defendant appealed his drug possession conviction, arguing he was unlawfully seized and the drugs in his possession should have been suppressed. Police responded to a report of an attempted burglary. The suspect was described as a tall black male. When police arrived, they found defendant, a short black male across the street from the house where the report was made. Before the police could exit their vehicle, defendant ran from the officers. As he ran, he discarded packages, which turned out to be drugs. Additional drugs were found on defendant's person. Although the police determined defendant was not the attempted burglar, he was arrested and charged with various drug-related crimes and with resisting arrest. Defendant sought to suppress evidence of the drugs, arguing the search was not reasonable, as he did not match the description. The judge denied the motion, finding the officers had a reasonable suspicion, in part due to defendant's conduct. Defendant then pled guilty and was sentenced to a five-year term. On appeal, the court affirmed the conviction. The court found the stop was reasonable based upon the totality of the circumstances. Although defendant's description was not a perfect match of the reported suspect, there were similarities in the description aside from height. Also, his location on an otherwise empty street and his behavior when the police arrived made the seizure reasonable. Unreported Source 9/17/2020 Daily Briefing
4. Jail always applies to criminal driving while suspended, Laurick application denied
State v. Konecny Appellate Division, unpublished.
Defendant appealed his sentence for fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C: 40-26(b). In 1986 and 1999, defendant was convicted of driving while under the influence, N.J.S.A. 39:4-50. He was convicted in 2016 of refusing to submit to testing, N.J.S.A. 39:4-50.4a, and his driver's license was suspended for two years. While his license was suspended, he was stopped three separate times for driving with a suspended license. On April 16, 2018, defendant pled guilty to three charges of operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b). For each offense, defendant acknowledged that at the time he operated his vehicle, he knew his license was suspended. Defendant sought post-conviction relief (PCR) regarding the 1999 DWI and 2016 refusal conviction pursuant to State v. Laurick, 120 N.J. 1 (1990), arguing an uncounseled prior DWI conviction could not be used to increase a custodial term for subsequent DWI convictions. Defendant was granted PCR relief for both convictions on the basis that a DWI conviction may not be used to enhance any subsequent conviction of N.J.S.A 39:3-40 or N.J.S.A. 2C:40-26 pursuant to Laurick. On October 23, 2018, defendant was sentenced on the driving while suspended offenses to concurrent terms of two years' probation and 180 days in jail with 180 days of parole ineligibility on each offense, plus appropriate fines and penalties.
The trial judge rejected defendant's request that he apply Laurick on the N.J.S.A. 2C:40-26(b) charges. The judge found Laurick was inapplicable as N.J.S.A. 2C:40-26 was a mandatory minimum sentence, and not an enhanced sentence. On appeal, the court affirmed the lower court's decision. The court found Laurick did not apply to convictions under N.J.S.A. 2C:40-26. The elements of the statute were satisfied and the mandatory period of incarceration applied. Source Daily Briefing 8/24/2020
5. NJ Judiciary’s Online Dispute Resolution (ODR) to let pro se handle online without hiring an attorney
Municipal Court Changes Allow for Case Resolution Without In-Person Appearance , this will take attorneys out of the process in speeding tickets, etc
According to the press release, the public can now ask a prosecutor to review their matters and may be able to resolve their case without having to appear in person, under a recent change to municipal court operations in New Jersey.
The Judiciary’s Online Dispute Resolution (ODR) program, which started in mid-May in approximately 30 municipal courts, allows court users to dispute a charge and provide information or evidence to municipal prosecutors online.
The ODR program applies to 37 traffic offenses, such as speeding, red light, stop sign or failure to yield and other point violations.
Defendants can make their requests for review to the municipal prosecutor through NJMC Direct. After reviewing the case, the prosecutor can offer a lesser charge or decline to change the charge.
If a lesser charge is accepted, the matter will be reviewed by a judge for approval. If approved, the defendant does not need to go to court.
Plea-by-mail does not apply to serious offenses, including those resulting in the likelihood of a driver’s license suspension, jail time or community service.
https://njcourts.gov/pressrel/2020/pr072820a.pdf
6. New book Defending DWI and Drug Possession (2020) Bound book
Written by: Kenneth A. Vercammen
This informative handbook will provide you with guidance on how to handle everything pertaining to the drug and DWI defense - from the initial contact with the client, to walking into the courthouse, and managing the steps that follow. It is a “how to” manual that you and your staff can follow with checklists and forms.
This book is intended to help solo/small-firm attorneys and newly admitted attorneys prepare to handle these cases and to better represent their clients. This handbook will help attorneys represent persons charged with DWI, drug, and other criminal and traffic offenses.
Special Feature: Over 50 modifiable forms and motions
Over 50 forms and motions are included to help make you (and your staff) more efficient and productive, while also reducing the chance for mistakes.
Table of Contents:
1 Pre-Interview
2 Office Interview and Preparing Notices to the Court and Prosecutor
3 Pretrial Motions
4 Trial Preparation
5 Trial
6 Sentencing and Post Trial
7 Supreme Court Caselaw and Federal Statutes
8 Marketing the DWI and Drug Defense Practice
List Price: $59.00 Book # 1177719 New Jersey Institute for Continuing Legal Education A Division of the NJSBA One Constitution Square (732) 214-8500 CustomerService@njsba.com
7. Free Office Space for Transitional or New Attorney and work with a Public Defender Mentor program- Edison, NJ
Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle Telephone communications with courts, Prosecutors, clients, etc, Will signings, Help handle Metuchen Municipal Court matters, municipal court appearances when they resume and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week. Must be admitted in NJ and have a car.
-Call Courts to follow up on Letter of Representation and scheduling of hearings & call Police Departments to follow up on discovery
- Prepare Timesheets on Fatal Accident cases
-Call clients and remind them of hearing dates and what to do
- Update Criminal and Civil blogs with recent cases
-Assist at Senior citizen Will Seminars and Municipal Court programs
Excellent opportunity to jump-start your career.
https://www.njlaws.com/office_space.html
Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients.
Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: www.njlaws.com to learn about our office.
If interested, fax, mail , fax or email a resume and cover letter.
KENNETH VERCAMMEN, Esq. Metuchen Public Defender
2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500
(Fax) 732-572-0030 vercammenlaw@njlaws.com
