Spring 2020 Municipal Court Law Review
1. No more phony stop for license plate holder partially obstructing Garden State name State v Roman- Rosado
2. Elimination of mandatory DL suspensions related to drugs and other offenses
3. Loss of license for the CDS in Motor Vehicle 39:4-49.1 eliminated
4. No Insurance 39:6B-2 Mandatory suspension on no insurance eliminated
5. Repealed Driver’s license suspension for Failure to appear for disorderly persons offense
6. Driver’s license suspension for Failure to comply with installment order Repealed
7. Court claims parked car with engine running is operation. Attorney seeks Supreme court reversal
State v. Thompson
8. Roadside statements inadmissible where roadside stop was improper State v. Alessi
9. Order – Limited Relaxation of Prohibition on Plea Bargaining in Municipal Court DWI Cases Implicated by State v. Cassidy
10. Annual Happy Hour & Networking Social July 10, 2020
11 photo Expungement seminar
1. No more phony stop for license plate holder partially obstructing Garden State words State v Roman- Rosado State v. Roman-Rosado, 462 N.J.Super. 183 (App. Div. 2020) Following the stop of defendant's car for allegedly violating N.J.S.A. 39:3-33 because the license plate frame on the car's rear license plate "concealed or otherwise obscured" the words "Garden State" at the bottom of the license plate, a warrantless search of the car uncovered an unloaded handgun. The trial court denied defendant's motion to suppress the search and seizure of the handgun, and defendant subsequently pled guilty to second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1).
In defendant's appeal, the court was asked to decide: (1) whether there was reasonable suspicion to stop defendant's car for violating N.J.S.A. 39:3-33; and (2) whether the subsequent search and seizure of the handgun was legally permissible.
Based upon the common understanding of the words "conceal" and "obscure," this court concludes there was no reasonable suspicion to stop defendant's car for violating N.J.S.A. 39:3-33 where the minimal covering of "Garden State" did not make the words indecipherable. Hence, the seized gun was inadmissible to prove a second-degree certain persons offense.
For the sake of completeness, the court further decides that even if there was reasonable suspicion to stop defendant's car for a N.J.S.A. 39:3-33 violation, the subsequent search was not legally permissible because it did not satisfy the State's proffered exceptions to conduct a warrantless search of an automobile, i.e., a search incident to arrest, or a protective sweep.
Accordingly, the court reverses and vacates the conviction for second-degree certain persons not to possess weapons, and remands so defendant can move to vacate his guilty plea and have the judgment of conviction vacated pursuant to Rule 3:9-3(f).
2. Elimination of mandatory DL suspensions related to drugs and other offenses
On December 20, 2019, Governor Murphy signed S1080 into law as L. 2019, c. 276. Two provisions of this new law, namely Section 12 and subsection b. of Section 20, took effect on December 27, 2019. The remainder of this new law will take effect on January 1, 2021.
Section 12 and subsection b. of Section 20, took effect on December 27, 2019 when the Governor submitted a certification to the Secretary of Transportation expressing his opposition to the enactment or enforcement of a law requiring driver’s license suspension for drug offenses as set forth in 23 U.S.C. § 159(a)(3)(A).
Section 12 amended N.J.S.A. 39:4-49.1 to eliminate the suspension, revocation or postponement of driving privileges for a person who operates a motor vehicle on a highway while knowingly having in the person’s possession or in the motor vehicle any controlled dangerous substance or prescription drug without a valid prescription. Regarding the fine, this section excludes those persons who violate the provisions of N.J.S.A. 2C:35-10 (Possession, use or being under the influence, or failure to make a lawful disposition)
Also effective on December 27, 2019 is subsection b. of Section 20, which repealed N.J.S.A. 2C:35-16 and 39:5-30.13. New Jersey Statute 39:5-30.13 allowed for the suspension or postponement of driving privileges for persons convicted of or adjudicated delinquent for a drug offense in State court, federal court, or the District of Columbia. This law has been repealed.
Also repealed effective December 27, 2019 is N.J.S.A. 2C:35-16 which provides for the forfeiture or postponement of driving privileges of anyone convicted of or adjudicated delinquent for an offense under Chapters 35 or 36 of Title 2C as well as the suspension, revocation or postponement of driving privileges for those persons admitted to supervisory treatment, i.e., conditional discharge under N.J.S.A. 2C:36A-1, or pretrial intervention under N.J.S.A. 2C:43-12, without a plea of guilty or finding of guilt. DL suspension for Conditional Discharge eliminated.
repealed 2C:35-16 - Forfeiture or postponement of driving privileges for conviction for a person convicted of or adjudicated delinquent for a violation of any offense defined in chapter 35 Drugs or chapter 36 Paraphernalia
3. Loss of license for the CDS in Motor Vehicle 39:4-49.1 eliminated The legislature did away with loss of license for the CDS in motor vehicle 39:4-49.1. New: A person shall not operate a motor vehicle on any highway while knowingly having in the person's possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the “New Jersey Controlled Dangerous Substances Act,” P.L.1970, c. 226 (C.24:21-1 et seq.) or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist, or other medical practitioner licensed to write prescriptions intended for the treatment or prevention of disease in humans or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance.
A person who violates this section, except a person who violates the provisions of N.J.S.2C:35-10, shall be fined not less than $50.
4. No Insurance 39:6B-2 Mandatory suspension on no insurance eliminated
33:1-81 Misrepresenting age to induce sale or delivery of beer to minor; disorderly person –No more mandatory DL suspension
39:4-56.5 Abandonment of motor vehicle revised 2019- No more DL suspension
5. Repealed Driver’s license suspension for Failure to appear for disorderly persons offense, a petty disorderly persons offense, a violation of a municipal ordinance, or a violation of any other law of this State N.J.S.2B:12-31
Repealed 2A:4A-43.3.Suspension, postponement of right to operate motor vehicle [was with 2A:4A-43) for an initial act of graffiti ] section 6 of P.L.1995, c.251 (C.2A:4A-43.3);
Repealed 2C:33-3.1 Penalties for juvenile violating N.J.S.2C:33-3. False public alarms. No more Driver license suspension section 2 of P.L.1999, c.195 (C.2C:33-3.1);
6. Driver’s license suspension for Failure to comply with installment order Repealed 39:4-203.2.
39:5-30.13. repealed Suspension, revocation, postponement of driving privilege for persons convicted of certain drug offenses in any federal court or other states
39:4-56.5 Abandonment of motor vehicle revised 2019
No more DL suspension
7. Court claims parked car with engine running is operation. Attorney seeks Supreme court reversal
State v. Thompson
In this appeal, the court held that an intoxicated defendant asleep and behind the wheel of a parked motor vehicle with its engine running is "operating" the vehicle within the meaning of N.J.S.A. 39:4-50(a). Docket A-1909-19T6
Defendant appealed from his convictions for DUI and refusing to submit to a breath test. Defendant argued that the state failed to present sufficient evidence to prove the statutory element that defendant was "operating" his vehicle under the influence of alcohol or that he had a conscious intent to do so. The court rejected defendant's argument and affirmed his conviction. The court noted that the evidence at trial showed that police were called to a convenience store where defendant was observed sleeping in his car with the engine running. As officers woke defendant, they noticed the strong odor of alcohol on his breath. Defendant acknowledged to officers that he had "a couple of drinks." After failing field sobriety tests, defendant was arrested. At the police station, defendant acknowledged that he had prescriptions for methadone, hydrocodone, Xanax, and Cymbalta and that he had consumed two alcoholic drinks within a three hours period. The court held that this evidence was sufficient for the factfinder to concluded that defendant was intoxicated while sleeping behind the wheel of his vehicle. The court ruled that defendant was "operating" his vehicle since operation of a motor vehicle could include sitting or sleeping behind the wheel of a vehicle with the engine running, even if the vehicle is not observed in motion. Finally, the court found defendant's other contentions on appeal to have insufficient merit to warrant discussion.
Source 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!
https://www.law.com/njlawjournal/almID/1581570609NJA190919T/
8. Roadside statements inadmissible where roadside stop was improper State v. Alessi
The circumstances of this case do not legitimize the stop. Law enforcement must have reasonable and articulable suspicion of a traffic violation, the commission of a crime, or unlawful activity before executing a traffic stop. Accordingly, the roadside statement given by defendant during the unlawful stop should have been excluded at trial, and the Court affirms the Appellate Division’s reversal of her convictions for hindering apprehension and false reporting. Because defendant’s roadside statement permeated the trial, severely affecting her credibility and ability to mount a defense to the separate burglary charge, that conviction is reversed as well. 14-1-3686
9. Order – Limited Relaxation of Prohibition on Plea Bargaining in Municipal Court DWI Cases Implicated by State v. Cassidy
SUPREME COURT OF NEW JERSEY
Pursuant to N.J. Const. Art. VI., sec. 2 par. 3, it is ORDERED that, effective immediately and until further order, the "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey," which is an Appendix to Part VII of the Rules Governing the Courts of the State of New Jersey, are supplemented and relaxed so as to permit plea agreements in post-conviction relief cases affected by the Supreme Court decision in State v. Eileen Cassidy, 235 N.J. 482 (2018).
This limited rule relaxation applies only to post-conviction relief proceedings in which evidential breath samples from defendants in driving while intoxicated (DWI) cases were procured using Alcotest machines calibrated without using a NIST-traceable thermometer, namely, the approximately 13,000 cases that involve findings of guilt, either by trial or by plea, referred to in the Court's January 29, 2019 order that designated a Special Master to make judicial and administrative decisions in matters affected by the Court's decision in Cassidy.
In all other aspects, including for all cases not affected by the Court's decision in Cassidy, the "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey" remain in full force and effect. December 18, 2019
10. Annual Happy Hour & Networking Social July 10, 2020 Co- sponsors requested
Co-sponsored by NJ State Bar Association Sections & several Chambers of Commerce
For the past five years different Professional groups and Sections of the NJ State Bar Association have co-sponsored a Happy Hour and Social event for attorneys and business professionals. The Annual Summer Networking Happy Hour is July 10, 2020 at Bar Anticipation from 5:30-7:30.
We are requesting professional groups serve as co-sponsor for this Happy Hour. There will be no cost to a professional group, and great benefit for your members. It may even be a source of new members. We only ask that you help publicize the event. There will be a small table to greet members.
Location: Bar Anticipation
703 16th Avenue
Lake Como/ Belmar, NJ 07719
Free food 5:15-7:15. The reduced price Happy Hour is 6-7PM with $2.00 House Drink, House Wine Special or Bud/Bud Light draft. We provide special VIP wristband.
We ask each attendee to bring a canned food donation for the St. Matthews St. Vincent Food Bank.
11. New trial ordered where police did not give full Miranda warning
State v Hager
The court considered whether the omission of one of the Miranda warnings during custodial interrogation adequately conveys the substance of the warnings and concluded it did not, notwithstanding the fact that defendant continuously interrupted the administration of the warnings. Acknowledging out-of-state authority holding that a suspect may waive Miranda warnings by interrupting their delivery, the court concluded that the suspect's interruption of the warnings does not discharge law enforcement of their duty to deliver them. Finding that the erroneous introduction of the partially unwarned statements was not harmless error, the court reversed defendant's conviction, which followed a bifurcated jury trial, and vacated his guilty plea on the weapons offense. Relying on United States v. Pagane, 542 U.S. 630 (2004), however, the court rejected defendant's contention that suppression of the weapon was mandated as a remedy for the Miranda violation despite the fact that the weapon was seized as a result of a search warrant based on the statements. (14-07-0678)
Allan Marain Esq. and Ken Vercammen speakers at Expungement seminar
Expungements to remove criminal arrests continue to be processed. The new Expungement law is starting in June 2020.
add if space
Mr. Marain notes on his website: Are you applying to nursing school? Would you like to be a teacher? Drive a school bus? Be a school crossing guard? Are you seeking a New Jersey firearms identification card? Perhaps you want to adopt a child or be a foster parent, or coach a Little League® baseball team. Maybe you're looking for a job in securities, or at Home Depot. Maybe you're just looking for a job, period. Any job. Were you ever charged with shoplifting? Or busted over a little weed? Are any felony convictions, or even just arrests, on your record?
N.J. Municipal Court - Law Review SUBSCRIPTION INFO
Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review. This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice.
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2053 Woodbridge Ave.
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732-572-0500
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Criminal Articles from NJLaws Website and BeNotGuilty.com website
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Criminal Law- Recent Cases
http://njcriminallaw.blogspot.com/
Cut & paste all reported and sometimes unreported criminal case squibs from NJ Judiciary.
Criminal Statutes and Criminal Jury Charges
http://criminal-jury.blogspot.com/
Drug & DWI Law
http://drugarrest.blogspot.com
Motor Vehicle Articles and NJ Title 39 Motor Vehicle laws http://njmotorvehicle.blogspot.com/
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New NJ Statutes , Recent cases and Court Rules
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Traffic Law & Municipal Court- Articles from BeNotGuilty.com
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Defending DWI and Drug Possession (2020) Bound book
List Price: $59.00 USD
NJ State Bar’s new 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.
Bonus!
Also includes a section on marketing the DWI and drug defense practice.
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
Book # 1177719 New Jersey Institute for Continuing Legal Education A Division of the NJSBA One Constitution Square, New Brunswick, NJ 08901 (732) 214-8500 · CustomerService@njsba.com
https://tcms.njsba.com/personifyebusiness/njicle/Store/ProductDetails.aspx?productid=46708744
Kenneth Vercammen is 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. He is admitted to the Supreme Court of the United States.
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 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. 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. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt.
KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
