Summer Municipal Court Law Review 2020
1. New trial ordered where police did not give full Miranda warning State v Hager
2. US Supreme Court ruled that it was reasonable under the Fourth Amendment for a police officer to make a traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked Kansas v Glover
3. Both jail and probation imposed in criminal driving while suspended after DWI. State v Chavarria
4. Crime spree exception to expungement approved here. State v A.R.
5. Blended family members can apply for domestic violence orders S.C. V. J.D.
7. Drunk driver statements and arrest proper where wife let police into house State v. Kearstan unreported
8. Voluntary consent to blood and urine here State v. Byer unreported
9. Handling Drug, DWI and Serious Cases in Municipal Court Seminar October 26, 2020
1. 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. Patane, 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)
2. US Supreme Court ruled that it was reasonable under the Fourth Amendment for a police officer to make a traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked Kansas v Glover Supreme Court of the United States. No. 18-556.
A Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover's driver's license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator. He moved to suppress all evidence from the stop, claiming that the deputy lacked reasonable suspicion. The District Court granted the motion, but the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.
Held: When the officer lacks information negating an inference that the owner is driving the vehicle, an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable under the Fourth Amendment.
(a) An officer may initiate a brief investigative traffic stop when he has "a particularized and objective basis" to suspect legal wrongdoing. United States v. Cortez, 449 U. S. 411, 417. The level of suspicion required is less than that necessary for probable cause and "depends on "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'"" Prado Navarette v. California, 572 U. S. 393, 402. Courts must therefore permit officers to make "commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U. S. 119, 125. P. 3.
(b) Here, the deputy's common sense inference that the owner of a vehicle was likely the vehicle's driver provided more than reasonable suspicion to initiate the stop. That inference is not made unreasonable merely because a vehicle's driver is not always its registered owner or because Glover had a revoked license. Though common sense suffices to justify the officer's inference, empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. And Kansas' license-revocation scheme, which covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive, reinforces the reasonableness of the inference that an individual with a revoked license will continue to drive. Pp. 4-6.
(c) Glover's counterarguments are unpersuasive. He argues that the deputy's inference was unreasonable because it was not grounded in his law enforcement training or experience. Such a requirement, however, is inconsistent with this Court's Fourth Amendment jurisprudence. See, e.g., Navarette, 572 U. S., at 402. It would also place the burden on police officers to justify their inferences by referring to training materials or experience, and it would foreclose their ability to rely on common sense obtained outside of their work duties. Glover's argument that Kansas' view would permit officers to base reasonable suspicion exclusively on probabilities also carries little force. Officers, like jurors, may rely on probabilities in the reasonable suspicion context. See, e.g., United States v. Sokolow, 490 U. S. 1, 8-9. Moreover, the deputy here did more than that: He combined facts obtained from a database and commonsense judgments to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity.
(d) The scope of this holding is narrow. The reasonable suspicion standard "`takes into account the totality of the circumstances.'" Navarette, 572 U. S., at 397. The presence of additional facts might dispel reasonable suspicion, but here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck.
3. Both jail and probation imposed in criminal driving while suspended after DWI. State v Chavarria
Defendant pleaded guilty to two counts of violating N.J.S.A. 2C: 40-26(b) by driving during a period of license suspension or revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving while under the influence, or N.J.S.A. 39:4-50a, refusal to provide a breath sample. The court sentenced defendant on each count to a 180-day term of imprisonment with a 180-day period of parole ineligibility as a condition of serving a two-year probationary term. The court ordered the custodial terms to be served consecutively and the probationary terms to be served concurrently.
Defendant argued his sentences are illegal because the Criminal Code does not authorize a spilt sentence with a term of imprisonment that includes a mandatory period of parole ineligibility. The court disagreed, finding the plain language of N.J.S.A. 2C: 43-2(b)(2) authorizes sentences including terms of incarceration as a condition of probation, with the only limitation being the term of incarceration may not exceed 364 days. The court finds that because defendant's individual and aggregate custodial sentences require less than 364 days of imprisonment as a condition of probation, they are authorized by N.J.S.A. 2C: 43-2(b)(2) even though the terms of imprisonment include mandatory periods of parole ineligibility.
The court also determined the sentencing court erred by failing to make findings supporting its imposition of consecutive sentences, see State v. Yarbrough, 100 N.J. 627 (1985), and by imposing sentences that were both consecutive and concurrent, see State v. Rogers, 124 N.J. 113 (1991). The court remanded for resentencing. A-4473-18T3)
4. Crime spree exception to expungement approved here. State v A.R.
This case presents the question of whether petitioner A.R.'s convictions fall within the "crime-spree" exception contained within N.J.S.A. 2C: 52-2(a), making them eligible for expungement. Specifically, the granting or denying of petitioner’s expungement petition turns on the phrase: “crimes [which are] interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period of time.” N.J.S.A. 2C: 52-2(a). Petitioner and the State concede that this phrase is undefined in the statute, yet offer competing interpretations. The State proposes a strict interpretation of this language, whereas petitioner asserts that the expungement statute – as remedial legislation – should be liberally interpreted. This court concludes that a liberal interpretation of this language is consistent with the general purpose of the expungement statute. Petitioner’s convictions are “closely related in circumstances” because they stem from two instances where he engaged in the unlawful sale of narcotics to a “friend” and an undercover officer, and were committed over a period of six weeks, which is a “comparatively short period of time.” Therefore, petitioner’s convictions are eligible for expungement pursuant to N.J.S.A. 2C:52-2(a). (00-09-1483/01-02-0229)
5. Blended family members can apply for domestic violence orders S.C. V. J.D.
This domestic violence case concerns the breadth of “household member” jurisdiction in the context of a modern, blended-family where the parties are adult, half-siblings who shared meaningful, regular parenting time with their common father during their youth – though never resided together. Throughout their youth, the parties regularly and consistently spent substantial periods of time at their common father’s home, including the defendant spending overnights every other weekend during the school year and more extended times during the summer at their father’s home. Although he did not have a bedroom, he had a fixed sleeping arrangement and drawers containing underwear, gym shorts, and toiletries. During and after college, their in-person contact decreased, but they still gathered informally and at family milestones and vacations. (FV-13-1110-19)
6. Interlock required even for out of state drivers with Refusal State v. Colson N.J. Super. App. Div NOT APPROVED FOR PUBLICATION
Defendant appealed the order directing him to install an ignition interlock device. Defendant was charged with DWI, refusal to submit to breath testing and reckless driving. He pled guilty to refusal to submit to a breath test and the other charges were dismissed. He was sentenced to loss of driving privileges, installation of an ignition interlock device and to attend 12 hours at the Intoxicated Drivers Resource Center. Municipal court judge rejected the defense argument that ignition interlock device installation did not apply to out-of-state drivers. Defendant appealed and trial judge imposed the same sentence as the municipal court judge.
Defendant renewed his argument that the interlock device requirement did not apply to him because he was licensed in Pennsylvania. He argued N.J.S.A 39:4-50(c) showed the legislature intended to differentiate between New Jersey drivers and out-of-state drivers and the ignition interlock requirement applied when a driver's license was suspended not when his driving privileges were revoked. Court was not persuaded and noted the plain language of the refusal statute did not exempt out-of-state drivers from the ignition interlock device requirement and punished "any person" who violated the statute. Source Daily Briefing - 03/16/20 14-2-4053
7. Drunk driver statements and arrest proper where wife let police into house State v. Kearstan N.J. Super. App. Div. unreported
Defendant appealed his DWI conviction. Defendant arrived at the marital home with damage to his car and a missing mirror. His wife called 911, reported he was in the basement, had an alcohol issue and was intoxicated. Officer went to the house to conduct a welfare check, wife invited officer into the house and officer saw defendant staggering, having difficulty pulling up his pants and smelling of alcohol. Officer noted defendant needed assistance to simply stand up. Officer and defendant went outside to talk away from the children and officer noticed defendant's bloodshot eyes and slurred speech. Defendant admitted to having several drinks. Officer administered field sobriety tests, arrested defendant and a blood draw showed a BAC of 0.29 percent.
Defendant moved to suppress the blood alcohol test and his incriminating statements. Trial court denied the suppression motion, finding wife invited officer into the home, the warrantless entry was justified under the community-caretaker and emergency-aid doctrines and the questioning was similar to a preliminary roadside drunk driving investigation.
Defendant argued removing him from his home was improper and his inculpatory statements were obtained in violation of the Fourth Amendment. The Appellate Court agreed with trial court that officer lawfully entered the house at wife's invitation and defendant's incriminating responses were the result of a proper investigatory interrogation.
Source https://www.law.com/njlawjournal/almID/1569032182NJA586717T/
8. Voluntary consent to blood and urine here State v. Byer unreported
Defendant appealed from a decision that denied her motion to suppress her statements to the police, as well as urine and blood draw evidence, following a fatal car crash. While in the hospital following the crash, defendant orally acknowledged and then signed a card that confirmed that the police officer had recited her Miranda rights.
Defendant also signed a consent form for a blood and urine draw, which the officer had also read to her. Two hours later, after learning that the other driver had died, another police officer recorded an interview with defendant but did not advise her of her Miranda rights.
Defendant was then allowed to leave the hospital and was not arrested or charged until the toxicology reports were returned. The trial judge found that defendant had not been in custody while she was in the hospital and was free to leave.
The trial judge noted that even if she was in custody at the hospital, defendant knowingly and voluntarily waived her rights. The trial judge explained that the circumstances did not warrant that defendant be re-Mirandized by the second officer because there were no intervening events that would have diluted the effectiveness of the waiver.
The Appellate court affirmed and found that defendant's arguments on appeal were without sufficient merit to warrant discussion. The court's review of the record demonstrated no basis to second-guess the trial judge's detailed findings of facts and conclusions of law that defendant was not in police custody, had been properly advised of her rights and waived those rights, and voluntarily consented to the blood and urine draw. A-4161-17T4
Source https://www.law.com/njlawjournal/almID/1567649304NJA416117T/
9. Handling Drug, DWI and Serious Cases in Municipal Court Seminar October 26, 2020 3pm Virtual via Zoom
-New Expungement Law
-Decriminalization of pot
-New DWI penalties
-Can new Dwi law apply to older dwi charges
Speakers: Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year
Norma M. Murgado, Esq.
Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge)
Lorraine Nielsen, Esq. Municipal Court Prosecutor, Milltown
John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice Section
William Brigiani, Esq. Past Middlesex Bar President
NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar Phone: (732) 214-8500 CustomerService@njsba.com
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Small photo page 3 bottom
Admiral Wayne Justice U.S.C.G Retired Rear Admiral was keynote speaker at outdoor VFW Cocoa Beach Memorial Day remembrance, concluding with Taps. Proud to attend, I stood in the back in the rain, knowing our serviceman did so much more to protect us. Ken V, life member VFW Aux and American Legion Sons.
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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
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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.
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