2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Sunday, December 06, 2015

Top Criminal and Traffic Cases in NJ Municipal Courts

 Top Criminal and Traffic Cases in NJ Municipal Courts


1. Can Judge rely on suppression motion testimony without defendant’s consent? No
    Court cannot consider Sup Mt testimony unless agreed by defendant
State v. Gibson 219 NJ 227 (2014)

      Due to the fundamental differences between a pre-trial motion to suppress and a trial on the merits, the best practice is to conduct two separate proceedings. However, the motion record may be incorporated into the trial record if both parties consent and counsel are given wide latitude in cross-examination. Where the evidence from a pre-trial hearing is improperly admitted at the trial on the merits, the correct remedy is remand for a new trial.
2 Defendant can be entitled to Adjournment to Select Own Counsel. State v Kates 216 NJ 393 (2014)
The judgment of the Appellate Division was affirmed substantially for the reasons expressed in Judge Ostrer’s opinion below. Deprivation of a defendant’s right to counsel of choice is found where, as here, a trial court denies an adjournment without properly considering the relevant factors or abuses its discretion in doing so.
The Appellate Division held Defendant Entitled to Adjournment to Select Own Counsel. State v. Kates 426 NJ Super. 32 (App. Div. 2012)

      The Appellate Division concluded the trial court mistakenly exercised its discretion in denying defendant a continuance to enable him to retain counsel of his choice, after he learned on the eve of trial that the assistant deputy public defender who had been representing him was about to deployed for active military service.  Although the right to counsel of choice is not absolute and may be balanced against the court's interest in managing its calendar, the trial court failed to weigh the appropriate factors governing the discretionary decision whether to grant the requested continuance.  The availability of competent counsel not of defendant's choice was an insufficient basis for denying the continuance.  As deprivation of counsel of choice is a structural error not subject to harmless error analysis, reversal of defendant's conviction and a new trial is mandated.

 3. Police can’t search just because person is in no loitering area.
    If no probable cause to arrest, search of person is improper State v. Gibson  218 NJ  277 (2014)
          There is insufficient evidence in the record to support a finding that Officer Comegno had probable cause to arrest Gibson for defiant trespass; therefore, the subsequent search at the stationhouse was unconstitutional and the drug evidence seized during the search must be suppressed.

Can the homeowner aunt consent to let police search her nephew’s locked bedroom?
In this appeal, the Court considers the validity of a warrantless search, which was consented to by the homeowner and which occurred while the defendant was unlawfully detained.

   4. If Defendant unlawfully detained, third person’s consent to search no good. State v. Coles 218 NJ 322 (2014)
          The defendant was already in patrol car. His aunt let police into his locked bedroom. Police find guns.
          Under the circumstances presented here, a third party’s consent to conduct a warrantless search of a defendant’s living space is insufficient to justify the search when the defendant is unlawfully detained by police.

In this appeal, the Court considered the validity of a warrantless search of a house, specifically addressing whether the knowing and voluntary consent by an occupant to search a premises is constitutionally effective against a third party when an absent co-occupant has objected to the search.
  5. Co-Occupant consent to search valid. State v. Lamb 218 NJ 300 (2014)
    After a shooting, mother could give permission to search her home where son lived.
          Under the circumstances of this appeal, an occupant’s knowing and voluntary consent to search a premises is constitutionally effective against a third party and is not nullified by the prior objections of an absent co-occupant whose absence is not the result of a police effort to avoid an objection.

6. Police needed warrant for blood taking after DWI event in 2010 case, no good faith exception for police actions. State v. Adkins 221 NJ 300 (2015) 

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

7. Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report (DDR). State v. Kuropchak 216 N.J. 360 (2015)

The municipal court’s admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court’s credibility findings, the matter is remanded for a new trial.
        At trial, Gary Aramini, an Alcotest expert, and Officer Serritella testified. Aramini said that the tests were done improperly and that the State had failed to enter the right simulator solution Certificate of Analysis and the most recent Calibrating Unit New Standard Solution Report into evidence. He also testified that Officer Brito failed to wait the required twenty minutes between the second and third set of tests and that lip balm, blood in defendant’s mouth, and a cell phone in the testing room may have tainted the results. The court admitted the Drinking Driving Questionnaire (DDQ) and Drinking Driving Report (DDR) into evidence as business records. The court also admitted Officer Brito’s Alcotest Operator Certification, the Alcotest Calibration Certificate, Part I -- Control Tests, the Alcotest Calibration Certificate, Part II -- Linearity Tests, the Calibrating Unit New Standard Solution Report for solution control lot number 08J060, and a Certificate of Analysis 0.10 Percent Breath Alcohol Simulator Solution. This Certificate was admitted without objection; however, the State concedes that it was for lot 09D065 rather than 08J060, which was the simulator solution used in defendant’s control test.
        1. Appellate courts should defer to trial courts’ credibility findings. Occasionally, however, a trial court’s findings may be so clearly mistaken that the interests of justice demand intervention and correction.  
        2. A court may convict a defendant of DWI if she registers a blood alcohol level of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest’s reliability. The operator must observe the subject for twenty minutes. After twenty minutes, the Alcotest machine automatically conducts a blank air test to determine if there are any chemical interferents in the room. Additionally, a control test is conducted; if the Alcotest is working properly, that control test will generate a result between 0.095 and 0.105. The State must also admit certain foundational documents: (1) the most recent calibration report prior to a defendant’s test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant’s test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests to prove that the Alcotest was in working order.  
        3. Here, the last semi-annual calibration was completed on January 12, 2010, with simulator solution control lot 09D065. The solution control lot for the control test performed prior to and following the three rounds of breath tests performed on defendant was solution control lot 08J060. Under Chun, the State was required to provide the Certificate of Analysis of the 0.10 Simulator Solution used in defendant’s control test. The State, however, mistakenly admitted the Certificate of Analysis for the semi-annual simulator solution control lot 09D065 instead. Additionally, the most recent Calibrating Unit New Standards Solution Report was not admitted into evidence during the State’s case. Given that the foundational documents were not admitted into evidence, the State presented no evidence as to the reliability or accuracy of the Alcotest results and, therefore, defendant’s conviction of per se intoxication was improper.  
        4. As for defendant’s contention that the DDR and DDQ are hearsay not subject to any exception, the Court observes that hearsay is inadmissible unless it falls into one of certain recognized exceptions. To qualify as a business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events described in it, and (3) under circumstances that indicate its trustworthiness. Foundational reports for breath testing, with certain qualifications, are admissible under the business record exception to the hearsay rule. Here, however, the DDR contains a narrative account of what the officer saw at the scene and includes factual statements, observations, and the officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the “remarks” section and the DWI report, in turn, contains several inadmissible opinions. The DDQ’s content thus also rises to the level of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside the scope of the business records exception.  
        5. Here, the municipal court heard defendant’s testimony concerning the events on the day of the incident, as well as the testimony of Officer Serritella. The court found the Officer’s testimony more credible than defendant’s and therefore found defendant guilty. The court’s credibility determinations, however, were made after the DDR and the DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after the Alcotest results were admitted into evidence despite the lack of requisite foundational documents. 
      The cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal court’s credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of events in this case – the inappropriate admission of the Alcotest results as well as the DDR and DDQ – that the Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained hearsay, Officer Serritella’s testimony would have alleviated much of that problem. Here, however, the cumulative effect of the errors may have tilted the municipal court’s credibility findings.  
      The judgment of the Appellate Division was REVERSED

  8.   State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause
 State v. William L. Witt (A-9-14) (074468) 
Argued April 14, 2014 -- Decided September 24, 2015 
ALBIN, J., writing for a majority of the Court. 

    The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

 9. Prior DWI counts for enhanced refusal. State v. Frye ­­­217 NJ. 566 (2014)
      The court reaffirms it’s holding in In re Bergwall, 85 N.J. 382 (1981).  A prior DWI conviction may enhance the sentence for a subsequent refusal conviction under the refusal statute. N.J.S.A. 39:4-50.4a.

 10. Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels ­­­­219 NJ 1 (2014)
Defendant’s confrontation rights were not violated by the admission of Dr. Barbieri’s report or his testimony regarding the blood tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the testing process, independently verified the correctness of the machine-tested processes and results, and formed an independent conclusion about the results. Defendant’s opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic evidence presented against her.

  11 Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v. Roach 219 NJ 58 (2014)
     Defendant’s confrontation rights were not violated by the testimony of the analyst who matched his DNA profile to the profile left at the scene by the perpetrator. Defendant had the opportunity to confront the analyst who personally reviewed and verified the correctness of the two DNA profiles that resulted in a highly significant statistical match inculpating him as the perpetrator. In the context of testing for the purpose of establishing DNA profiles.

  12 Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams 219 NJ 89 (2014)
Defendant’s failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.

13. Driver is not subject to criminal driving while suspended if DWI suspension period expired prior to driving
State v Perry 439 NJ Super. 514 (App. Div. 2015)
N.J.S.A. 2C:40-26(a) and (b) make driving while suspended under specified circumstances a fourth-degree crime, punishable by a mandatory minimum jail term of 180 days, where the underlying suspension arose from driving while intoxicated (DWI), N.J.S.A. 39:4-50, and/or refusal to submit to chemical testing, N.J.S.A. 39:4-50.4(a). The court concluded in these appeals that prosecutions under the statute can be brought only if the act of driving while suspended occurs during the court-imposed term of suspension.
     Note- Ken V successfully represented four of the winning parties before the Law Division. The Appellate Division affirmed the well-reasoned opinion of Hon. Douglas Wolfson JSC.

14. Driving While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester 437 N.J. Super. 1 (App. Div. 2014)
N.J.S.A. 2C:40-26b makes it a fourth degree offense to drive while one's license is suspended or revoked for a second or subsequent conviction for driving a car while under the influence of alcohol (DWI). In a bench trial before the Law Division on this charge, defendant argued that her second DWI conviction had been voided ab initio by the municipal court when it granted her PCR petition two months after she was indicted for one count of violating N.J.S.A. 2C:40-26b. Thus, defendant argues the State cannot rely on this vacated second DWI conviction to meet its burden of proof under N.J.S.A. 2C:40-26b. The trial court rejected this argument. The Appellate Division affirmed.
It is undisputed that at the time defendant committed this offense, she was aware her driver's license had been revoked by a presumptively valid second conviction for DWI. The court relied on State v. Gandhi, 201 N.J. 161, 190 (2010) to hold that a second DWI conviction vacated through PCR granted by a court after a defendant engages in conduct prohibited in N.J.S.A. 2C:40-26b, cannot be applied retroactively to bar a conviction under this statute.

 15. If mandatory 180 days without parole, can’t get credit for inpatient State v. French 437 NJ Super. 333 (App. Div 2014)
A sentence of 90 days in jail followed by 90 days in an inpatient drug rehabilitation program does not satisfy the "fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole" mandated for the fourth-degree crime of operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated. N.J.S.A. 2C:40-26(b).

16 DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie 220 NJ 126 (2014) A-31-13
The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided that the defendant’s most recent and current DWI offenses are separated by more than ten years.  In this case, defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a third DWI offender with respect to the applicable administrative penalties.

17. DL suspension should not be stayed after conviction unless findings of fact.  State v Robertson 438 N.J.Super.47 (App. Div. 2014)
         In this appeal from a DWI conviction, the court rejects defendant's argument that the Alcotest results should have been excluded because he was denied discovery of certain repair records, which were created by the Alcotest's manufacturer, and certain downloaded data, which the State routinely erases. The court concludes the records were not discoverable under Rule 7:7-7, nor did they constitute Brady material.
         The court also addressed the unexplained decisions of both the municipal court and the Law Division to stay defendant's license suspension pending appeal. The court instructs trial courts that any stay of a license suspension after a DWI conviction should be supported by adequate findings of fact and conclusions of law, and should comply with standards governing the grant of a stay pending appeal set forth in Garden State Equality v. Doe, 216 N.J. 314, 320 (2013).

18  No home release or wristlet if mandatory 180 jail
State v Harris 439 NJ Super. 150
(App. Div. 2015)
          Following the recent opinion in State v. French, 437 N.J. Super. 333 (App. Div. 2014), the court hold that a defendant convicted of violating either N.J.S.A. 2C:40-26a or N.J.S.A. 2C:40-26b must be sentenced to at least 180 days in jail without parole. French held that a sentence to an in-patient drug rehabilitation program in lieu of jail was an illegal sentence under section 26b. The court conclude that, under section 26a or 26b, a sentence to any other non-custodial alternative program, such as a home detention program (HEDS) or a community service program (CSLS), is likewise illegal. 

19 Failure to read refusal warnings not a defense to DWI State v Peralta 437 NJ Super. 570 (App.Div 2014)
In this appeal, defendant argued the police failure to read to him the standard statement referred to in N.J.S.A. 39:4 50.2(e) – which, in its current iteration, largely but not entirely advises of the consequences of refusing to provide a breath sample – requires reversal of his DWI conviction based solely on an Alcotest reading. The court held this alleged failure was not fatal to the DWI conviction because defendant did not refuse to provide a breath sample.

20  DWI statute and Alcotest not unconstitutional. State v. Campbell 436 N.J. Super. 264 (App. Div. 2014)
Defendant's prosecution was based upon an Alcotest reading of his blood alcohol content ("BAC") above the per se level of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing the admission of Alcotest BAC results when the prerequisites for such admissibility are shown by "clear-and-convincing" proof, coupled with the statute's conclusively incriminating treatment of a BAC at or above .08, improperly combine to relieve the State of its constitutional burden of proving a driver's guilt by the more rigorous standard of proof "beyond a reasonable doubt."
The Court rejects defendant's claim of unconstitutionality. The argument fails to distinguish the State's threshold burden of establishing the Alcotest's evidential admissibility from the State's ultimate burden at trail of establishing defendant's guilt of a per se offense beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC results has been denied, a defendant can still present competing evidence or arguments at trial to persuade the court that the testing procedures were flawed and that his guilt has not been proven by the more stringent reasonable doubt standard.

21 Court permits police to ignore guidelines requiring Alcohol influence report be given to DWI suspects
State v Sorensen  __ NJ Super. __ (App. Div. 2015) A-3797-13T4
      After the Law Division suppressed defendant's blood alcohol content (BAC) results, it sentenced her on her guilty plea to driving under the influence. Nonetheless, the State's appeal of the suppression was not barred by double jeopardy because defendant had entered a conditional plea to, and been sentenced for, the per se violation in Municipal Court.
The Law Division suppressed the BAC results because the Alcotest operator did not give a copy of the Alcohol Influence Report (AIR) to the arrestee in the police station. Although State v. Chun, 194 N.J. 54, 82 (2008), said the operator "must" do so, that comment about recommended Alcotest procedure did not override the statutory standard only requiring the police to give a copy of the breath test results upon request. N.J.S.A. 39:4-50.2(b). In any event, the timing of copy delivery does not affect the validity of the test results. Moreover, police must advise arrestees of their ability to request a copy and to get an independent test. Therefore, suppression is not warranted in the absence of prejudice. Furthermore, a suppression remedy should not be imposed retroactively.
Judge Sabatino concurs in the result. Given the time-sensitive dissipation of alcohol in the bloodstream, he believes Chun sensibly requires the operator to provide a copy of the AIR contemporaneously, consistent with the policies of the Attorney General and the State Police, and that the statute does not foreclose affording such added procedural protection to tested drivers. He agrees that suppression in this case and retroactive relief are not warranted.

22 Ten year step down in DWI also applies to refusal. State v Taylor 440 NJ Super. 387 (App. Div. 2015)

In 2013, defendant Thomas Taylor entered a conditional guilty plea to refusal to submit to a breath test, N.J.S.A. 39:4-50.2, reserving the right "to appeal [] any and all issues, including sentencing." Although defendant had no prior convictions for refusal, he had two prior convictions for driving while intoxicated (DWI), N.J.S.A. 39-4-50, in 1985 and 1996. The trial court sentenced defendant as a "third offender," using his DWI convictions to enhance the penalty for his refusal conviction.
On appeal, defendant argues that the "step-down" provision of the DWI statute, N.J.S.A. 39:4-50(a)(3), should apply so as to reduce his refusal conviction from a third to a second offense for sentencing purposes since it followed more than ten years after his second DWI conviction. The court agreed and held that where the penalty attendant to a driver's refusal conviction is enhanced by a prior conviction under the DWI statute, fairness dictates that it be similarly reduced by the sentencing leniency accorded a driver under the "step-down" provision of that statute when there is a hiatus of ten years or more between offenses.

23 Police did not have reason to order passenger out of car. State v Bacome 440 NJ Super. 228 (App. Div. 2015) 
Based on speculation that defendant and a passenger in his vehicle were involved in illegal drug activity, police officers attempted to follow but lost sight of the vehicle in or near Newark and waited in Woodbridge for its return. Once the vehicle returned, the officers stopped it, ostensibly because the passenger was not wearing his seatbelt. On approaching, an officer, who did not testify, observed defendant reach under his seat. Both driver and passenger were then ordered out of the vehicle; after the passenger exited, an officer was able to observe in plain view materials that suggested drug usage. Based on that observation, a warrantless search of the vehicle ensued, and illegal drugs were found.
Because defendant's mere entry into and departure from Newark did not permit a reasonable suspicion of illegal drug activity and because the State had failed to present facts "that would create in a police officer a heightened awareness of danger" if the passenger were allowed to remain in the vehicle, State v. Smith, 134 N.J. 599, 618 (1994), the court found no sufficient ground for the ordering of the passenger out of the vehicle and reversed the denial of the suppression motion.

24 Jail Alternative allowed in 3-40(e) and 6B:2. State v. Toussaint 440 N.J. Super. 526 (App.Div. 2015)
When a defendant is convicted under N.J.S.A. 39:3-40(e) (being involved in an accident that causes injury to another, while driving with a suspended license), or N.J.S.A. 39:6B-2 (driving without insurance), the court has discretion to permit the defendant to serve the sentence in an electronic monitoring program instead of in the county jail. In construing those provisions, we distinguished State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 200 N.J. 575 (2015), which held that N.J.S.A. 2C:40-26(c) did not permit sentencing alternatives for driving during a second or subsequent license suspension imposed for DWI.

25 OPRA can require town and police to provide video of security camera. Gilleran v. Twp. of Bloomfield 440 N.J. Super. 490 (App.Div. 2015)
         The Open Public Records Act (OPRA) does not include a blanket exemption for video recordings made from an outdoor security camera. To justify denying an OPRA request pursuant to the definitional exclusions contained in N.J.S.A. 47:1A-1.1 for "security information," "procedures," "measures," and "techniques," the government agency must make a specific showing of why disclosure would jeopardize the security of the facility or put the safety of persons or property at risk.
Because we agree with the trial court that the township did not make a sufficiently specific showing for an exemption, we need not decide whether N.J.S.A. 47:1A-5(g) requires a government agency to review requested recordings and redact only actual confidential information, as argued by plaintiff and the ACLU. Such a requirement of review and redaction seems  impractical and virtually impossible to implement when the request is for lengthy surveillance recordings, such as the fourteen hours of recordings requested here by plaintiff.

26 Bias statute requires proof of defendant intended bias, not victim perception and statute unconstitutional. State v. Pomianek 221 N.J. 66 (N.J. 2015).

Subsection (a)(3) of the bias-intimidation statute, N.J.S.A. 2C:16-1, fails to give adequate notice of conduct that it proscribes, is unconstitutionally vague, and violates the Due Process Clause of the Fourteenth Amendment.

27  Police should not have ordered driver out of car on traffic stop.  State v. Keaton ___NJ ___ (2015) (A-92-13)
The law enforcement officer was required to provide defendant with the opportunity to present his credentials before entering the vehicle. If after giving a defendant that opportunity, he or she is unable or unwilling to produce the registration or insurance information, only then may an officer conduct a search for those credentials. Here, because defendant was never provided with such an opportunity, the seizure of the contraband was unlawful under the plain view doctrine. Further, the community-caretaking doctrine was inapplicable because there was no need for an immediate warrantless search to preserve life or property.

28. Court should have adjourned case for defendant to hire own attorney.  State v. Martinez  440 NJ Super. 537 (App. Div. 2015)
The court examined the tension between a trial court's discretionary "authority to control its own calendar" by denying an adjournment request and the need to safeguard "a defendant's Sixth Amendment right to a fair opportunity to secure counsel of his own choice" in light of State v. Miller, 216 N.J. 40, 62, 65 (2013). Guided by the framework for review set forth in State v. Hayes, 205 N.J. 522 (2011), the court concluded the denial of defendant's request to adjourn trial, without weighing the facts presented supporting the requested adjournment, reflects an arbitrary exaltation of expedience in case processing at the expense of defendant's right to counsel. Accordingly, the court vacated the judgment of conviction and remands the matter for a new trial. 

29 Accident with unconscious driver was exigency for police to take blood. State v. Jones ___NJ Super. ___ (App. Div. 2015) A-0793-13T1
In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the United States Supreme Court considered whether "the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." Id. 133 S. Ct. at 1556, (emphasis added). Concluding that fact alone did not present a "per se exigency," the Supreme Court held, "consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances." Ibid. This matter was summarily remanded to the court by the Supreme Court for reconsideration in light of the Court's decision in State v. Adkins, ___ N.J. ___ (2015), holding that the totality of the circumstances analysis described in McNeely should be given pipeline retroactivity.
This was not a routine DWI case in which the dissipation of blood alcohol was the sole basis for determining an exigency existed. To the contrary, defendant caused a multiple vehicle accident at a busy intersection and crashed into a building, raising concern the building would collapse. Numerous police, firefighters and emergency medical services personnel responded to the scene, where the investigation took hours. It took one-half hour to extricate defendant, who was unconscious, from her badly damaged vehicle. Both she and a passenger in another car had to be transported to the hospital.
Viewing the totality of the circumstances, the court is satisfied that an objective exigency existed and that the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence[.]'" Schmerber, supra, 86 S. Ct. at 1835. The court finds no reason to disturb our prior decision reversing the order that suppressed the results of the blood sample analysis.

30. Defendant asking to speak with uncle counts as Miranda right to remain silent
 State v. Maltese 221 NJ 611 (2015)
Because defendant’s statement to his uncle occurred after officers violated his Fifth Amendment right to remain silent, that statement is inadmissible. Defendant’s subsequent statement to police was fruit of the unconstitutionally obtained statement to his uncle and must also be suppressed. Thus, defendant’s convictions for manslaughter and murder are reversed. His other convictions are affirmed because they are supported by evidence independent of the suppressed statements. On remand, the trial court shall conduct a pretrial hearing to determine whether the physical evidence obtained as a result of defendant’s suppressed statements is admissible under the inevitable discovery exception to the exclusionary rule.

31 Police have pc if odor of pot State v Myers __ NJ Super. __ (App. Div. 2015)
The odor of marijuana has long been held to provide probable cause of the commission of a marijuana offense. Under the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, registered qualifying patients receive registry identification cards, and their medical use of marijuana as authorized by the CUMMA is exempt from criminal liability under N.J.S.A. 2C:35-18. Where, as here, there is no evidence that the person suspected of possessing or using marijuana has a registry identification card, the odor of marijuana still provides probable cause of the commission of a marijuana offense. Here, the odor of burnt marijuana emanating from defendant's car gave the officer probable cause to arrest him for a marijuana offense committed in the officer's presence

__ Top new Law:  New law finally establishes a Conditional Dismissal for 1st time offenders in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.
Governor Chris Christie signed into law legislation co-sponsored by Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a Conditional Dismissal program in Municipal Court for certain first-time offenders. The law took affect in January 2014. However, the law requires a defendant to plead guilty as a part of the program.
“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,” Bateman said. “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.” This law also helps Police and Prosecutors since it requires a guilty plea, thus reducing the need for trials and officer testimony.
Under prior law, the only offenses eligible for a conditional discharge were certain drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.
Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involves certain offenses.
        After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may, approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. 
      This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.
      FINGERPRINTING REQUIREMENT.  To allow sufficient time for verification of the defendant’s criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.
     A person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.
      In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicant's participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.
      PROGRAM REQUIREMENTS.  After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.  The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court.  In addition, a judge could extend the term for good cause.
      If a defendant who is participating in conditional dismissal is convicted of any offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant’s prior plea of guilty or prior finding of guilt.
      If, at the end of the term, the defendant has not been convicted of any subsequent offense or crime under any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.
      The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs.  A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.
      CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT.  A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75. 
      The law allows the defendant to apply for a waiver of the fee by reason of poverty.  The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1). 
      Under the current provisions of the conditional discharge statute, a person is not eligible for conditional discharge if that person has committed a disorderly persons or petty disorderly persons drug offense under any law of the United States, this State or any other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a person who has participated in any supervisory treatment program or the conditional dismissal program established under the law will not be eligible for participation in the conditional discharge program.
     SUPERVISORY TREATMENT (PTI).  Similar to the conditional discharge statute, the PTI statute, N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to defray the costs of juror compensation. Since these monies are no longer used to defray the costs of juror compensation, the law updates this section of law accordingly.
      You can only receive one PTI, Conditional Dismissal or Conditional Discharge in your life. Some attorneys and clients want to “save” PTI for use later and not take a Conditional Dismissal for a minor criminal charge.

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 new 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 4th degree black belt.
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500