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NJ Municipal Court Law Review 2016 Summer Newsletter

1. No Jury trial for DWI. State v. Denelsbeck ___ NJ ___ (2016) (A-42-14)

Third or subsequent DWI offenders are not entitled to a jury trial, and defendants conviction procured by a bench trial did not violate his Sixth Amendment right to a jury trial.

2. Police can stop on broken tail light. State v. Sutherland ___ NJ Super. ___ (App. Div. 2016) A-5432-14T3

A police officer stopped defendants car because one of the four taillights was not illuminated. The Law Division granted defendants motion to suppress finding that N.J.S.A. 39:3-61(a) and -66 only required one functioning tail light on each side and the officers mistake rendered the stop unreasonable.

The court reversed, noting the confusing state of Title 39 and concluding that the officer had reasonable and articulable suspicion of a motor vehicle violation.

3. US Supreme Court permits DWI breath tests but rejects blood test without warrant. Birchfield v. North Dakota ___ S. Ct. ___ (2016) No. 14-1468.

1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.

(a) Taking a blood sample or administering a breath test is a search governed by the Fourth Amendment. See Skinner v. Railway Labor Executives Assn., 489 U. S. 602, 616617; Schmerber v. California, 384 U. S. 757, 767768. These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest. This exception applies categorically, rather than on a case-by-case basis. Missouri v. McNeely, 569 U. S. ___, ___, n. 3.

(b) The search-incident-to-arrest doctrine has an ancient pedigree that predates the Nations founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere fact of the lawful arrest justifies a full search of the person. United States v. Robinson, 414 U. S. 218, 235. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S. ___, the Court considered how to apply the doctrine to searches of an arrestees cell phone. Because founding era guidance was lacking, the Court determined whether to exempt [the] search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individuals privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Id., at ___. The same mode of analysis is proper here because the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest.

(c) The analysis begins by considering the impact of breath and blood tests on individual privacy interests.

(1) Breath tests do not implicate] significant privacy concerns. Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests do not require piercing the skin and entail a minimum of inconvenience. Id., at 625. Requiring an arrestee to insert the machines mouthpiece into his or her mouth and to exhale deep lung air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a persons cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath a suspects fingernails, Cupp v. Murphy, 412 U. S. 291. Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the governments possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest.

(2) The same cannot be said about blood tests. They require piercing the skin and extract a part of the subjects body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested.

(d) The analysis next turns to the States asserted need to obtain BAC readings.

(1) The States and the Federal Government have a paramount interest . . . in preserving [public highway] safety, Mackey v. Montrym, 443 U. S. 1, 17; and States have a compelling interest in creating deterrent[s] to drunken driving, a leading cause of traffic fatalities and injuries, id., at 18. Sanctions for refusing to take a BAC test were increased because consequences like license suspension were no longer adequate to persuade the most dangerous offenders to agree to a test that could lead to severe criminal sanctions. By making it a crime to refuse to submit to a BAC test, the laws at issue provide an incentive to cooperate and thus serve a very important function.

(2) As for other ways to combat drunk driving, this Courts decisions establish that an arresting officer is not obligated to obtain a warrant before conducting a search incident to arrest simply because there might be adequate time in the particular circumstances to obtain a warrant. The legality of a search incident to arrest must be judged on the basis of categorical rules. See e.g., Robinson, supra, at 235. McNeely, supra, at ___, distinguished. Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit. And other alternativese.g., sobriety checkpoints and ignition interlock systemsare poor substitutes.

(3) Bernard argues that warrantless BAC testing cannot be justified as a search incident to arrest because that doctrine aims to prevent the arrestee from destroying evidence, while the loss of blood alcohol evidence results from the bodys metabolism of alcohol, a natural process not controlled by the arrestee. In both instances, however, the State is justifiably concerned that evidence may be lost. The States general interest in evidence preservation or avoiding the loss of evidence, Riley, supra, at ___, readily encompasses the metabolization of alcohol in the blood. Bernards view finds no support in Chimel v. California, 395 U. S. 752, 763, Schmerber, 384 U. S., at 769, or McNeely, supra, at ___.

(e) Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferablee.g., where substances other than alcohol impair the drivers ability to operate a car safely, or where the subject is unconsciousnothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.

2. Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

3. These legal conclusions resolve the three present cases. Birchfield was criminally prosecuted for refusing a warrantless blooddraw, and therefore the search that he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. Because there appears to be no other basis for a warrantless test of Birchfields blood, he was threatened with an unlawful search and unlawfully convicted for refusing that search. Bernard was criminally prosecuted for refusing a warrantless breath test. Because that test was a permissible search incident to his arrest for drunk driving, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Beylund submitted to a blood test after police told him that the law required his submission. The North Dakota Supreme Court, which based its conclusion that Beylunds consent was voluntary on the erroneous assumption that the State could compel blood tests, should reevaluate Beylunds consent in light of the partial inaccuracy of the officers advisory.

4. Out of state DWI counts for criminal driving while suspended. State v. Luzhak ___ NJ Super. ___ (App.Div. 2016) A-2445-14T3

In this case of first impression, the court interpreted N.J.S.A. 2C:40-26(b), which provides that it is a crime of the fourth degree to operate a motor vehicle during a period of license suspension if the license was suspended for a second violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a), as including out- of-state convictions for DWI.

The court reached our determination after consideration of analogous statutes relating to interstate recognition of motor vehicle violations and the use of equivalent out-of-state convictions as prior offenses for enhanced DWI sentencing. The court also considered the legislative policy behind the statutes enactment. (Kenneth Vercammen handled this case).

5. Defense should be permitted to present witnesses. State v. Cope 224 NJ 530 (2016) (A-13-14; -74206)

1) After arresting defendant in his living room, the police conducted a protective sweep of an adjoining porch to ensure no individuals posing a safety risk were on the premises. The sweep did not violate constitutional standards and the trial court properly denied the motion to suppress the rifle. 2) The trial court abused its discretion when it denied defendant the right to present a full third-party-guilt defense. A witness whose testimony is central to a defense of third-party guilt cannot be kept off the stand unless the expected version of events is so patently false that the events couldoccurred.

6. Gap time jail credit permitted in DWI. State v. Walters ___ NJ Super. ___ (App.Div. 2016) A-0203-14T1

Defendant Matthew J. Walters appeals from the Law Division order that removed gap-time credit from a previously-entered judgment of conviction (JOC). The Law Division found that gap- time credit cannot be awarded for a sentence imposed on a Title 39 violation - driving while intoxicated (DWI), N.J.S.A. 39:4- 50. The court concluded that nothing in the language or statutory scheme of N.J.S.A. 2C:44-5(b) supports the conclusion that a defendant must be convicted for a Criminal Code offense to receive gap-time credits. Given that defendant has satisfied the requirements of N.J.S.A. 2C:44-5(b)(2), he is entitled to gap- time credits even though the sentence was for a Title 39 violation. Reversed and remanded to the Law Division for amendment of the judgment of conviction to reflect the proper award of gap-time credits.

7. No mandatory jail on leaving scene. State v. Frank ___ NJ Super. ___ (2016) A-0832-13T1

Defendant was convicted of leaving the scene of a motor vehicle accident involving serious bodily injury, N.J.S.A. 2C:12-1.1, and leaving the scene of a motor vehicle accident resulting in injury, N.J.S.A. 39:4-129(a). The trial court ordered that the motor vehicle violation merge into the criminal offense, and that the penalties survive merger. The judge sentenced defendant to a four-year term of probation for the criminal offense and a custodial sentence of 180 days on the Title 39 violation, believing the custodial sentence was mandatory. The court agreed that the criminal offense and motor vehicle violation merged as a matter of law, and that the Title 39 penalties survived merger, but the court reversed the imposition of a custodial sentence, concluding it was not mandatory under N.J.S.A. 39:4-129(a), and remanded for resentencing.



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9.Photo text Jason T. Komninos, Esq, Shanna McCann,.Esq, Karen A. Ostberg, Esq, Kenneth Vercammen, Esq Ethical Marketing Seminar

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10. Handling Drug, DWI and Serious Motor Vehicle Cases in Municipal Court Seminar

October 24. 2016


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Please forward to any attorneys, prosecutors or judges you believe may be interested.

Speakers: Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year

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Assistant Prosecutor - Woodbridge

Tara Auciello - Edison Prosecutor

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William G. Brigiani, Esq., - Past President Middlesex County Bar

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Editorial Assistance provided by Associate Editor Nicholas Idler, a first-year student at West Virginia University College of Law. Mr. Idler is participating in Ken Vercammens Summer Internship Program.

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

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