NJ
Laws Email Newsletter E266
Kenneth Vercammen, Attorney at Law
January 16, 2008
In This Issue
_______________
1. New Law Establishes owners responsibility to provide
information relating to certain motor vehicle accidents.
2. New Law Expands scope of implied consent for BAC testing
to include certain underage drivers who have consumed
alcohol.
3. New Law Authorizes suspension of motor vehicle registration
for unpaid parking ticket.
4. New Law provides for more time to pay Surcharges.
5. New Law permits poor people to perform community service
in lieu of fines.
6. New Law grants the court discretion regarding imposition
of penalties for certain drug offenses and to allow "reformative
service" to satisfy a portion of such penalties when
certain conditions are met.
7. Other New Traffic, Criminal and Civil Laws signed
in January.
8. Hon. Emery Z. Toth to speak at DWI Update 2008.
--------------------------------------------------------------------------------
1. New Law Establishes owners responsibility to provide
information relating to certain motor vehicle accidents.
New Law Establishes owners responsibility to provide information
relating to certain motor vehicle accidents. S-721/A-2144
(Inverso, Girgenti/ Greenstein)
This bill amends R.S.39:4-129 and R.S.39:4-130 to establish
a permissive inference, in cases where a driver fails
or refuses to report his involvement in an accident, thatthe
registered owner of the vehicle was the person involved
in the accident.
Under R.S.39:4-130, drivers are required to report their
involvement in any accident resulting in a death, injury
or property damage in excess of $500. In certain "hit
and run" situations, victims of motor vehicle accidents
have been able to identify the vehicle, but not the driver
of that vehicle. Since the statutory reporting obligation
is on drivers and not owners, there is no mechanism to
obtain the identity of the responsible driver, especially
if an owner refuses to disclose any information to his
insurers or the police. Assigning responsibility to the
owner may encourage owners to cooperate in accident investigations.
R.S.39:4-129 provides that the driver of a motor vehicle
involved in an accident "shall be presumed to have
knowledge that he was involved in such accident, and such
presumption shall be rebuttable in nature." This
bill amends this section to provide that there shall be
a permissive inference that the driver of any motor vehicle
involved in an accident resulting in injury or death to
any person or damage in the amount of $250 or more to
any vehicle or property has knowledge that he was involved
in such accident. R.S.39:4-130 is also amended to provide
for the permissive inference.
In addition, this bill amends R.S.39:4-129 and R.S.39:4:-130
to provide that in cases where the vehicle is owned by
a rental car company or leased, the permissive inference
applies to the renter, authorized driver or lessee, not
the owner.
The bill would also provide that any person who suppresses,
conceals or destroys any evidence relating to a reportable
motor vehicle accident or who suppresses the identity
of a driver involved in a reportable motor vehicle accident
is subject to a fine of not less than $250 or more than
$1,000.
The provisions of the bill are consistent with State
v. Walten, 241 N.J. Super. 529 (App. Div. 1990), which
held that the rebuttable presumption in R.S.39:4-129 offended
constitutional principles of due process by improperly
shifting the burden to prove knowledge to the defendant,
and that a court could afford the statutory presumption
no greater weight than that of a permissive inference.
2. New Law Expands scope of implied consent for BAC testing
to include certain underage drivers who have consumed
alcohol. S-781/A-490 (Madden, Buono/ Bateman).
This bill amends section 2 of P.L.1966, c.142 (C.39:4-50.2),
the implied consent statute, to establish that persons
under the age of 21 are deemed to have given their consent
to a test of their blood alcohol concentration when requested
by a police officer who has reasonable grounds to believe
they have operated a motor vehicle with a blood alcohol
content of 0.01% or more, but less than 0.08%, in violation
of section 1 of P.L.1992, c.189 (C.39:4-50.14), the drunk
driving statute applicable to underage persons.
The penalties imposed under this bill would be the same
as the penalties currently imposed under section 2 of
P.L.1981, c.512 (C.39:4-50.4a) for refusal to submit to
a blood alcohol concentration test. For a first offense,
those penalties include a driver's license suspension
of seven months to one year and a fine of $300 to $500.
3. New Law Authorizes suspension of motor vehicle registration
for unpaid parking ticket. S-2326/A-3523 (Turner, Rice/
Quigley, Wisniewski, Bodine).
This amended bill would provide a judge and the Motor
Vehicle Commission with greater flexibility when dealing
with a person who has failed to respond to a failure to
appear notice or who has not satisfied outstanding parking
fines or penalties. Under current law, a judge or the
commission may suspend the person's driver's license.
Under the provisions of this bill, a judge or the commission
would be permitted to suspend either the person's motor
vehicle registration or driver's license. In determining
whether to suspend the person's driver's license or the
motor vehicle registration, the judge and the commission
shall take into consideration the area where the person
resides and whether or not the person has access to off-street
parking.
This bill was prompted by a recommendation from the
Motor Vehicles Affordability and Fairness Task Force.
The committee amended the bill by requiring the judge
and the commission to take into consideration the area
the person resides in and whether or not the person has
access to off-street parking in deciding between suspension
of the driver's license or the motor vehicle registration.
The committee also made a technical amendment.
4. New Law provides for more time to pay Surcharges S-2331/A-3524
(Turner, Sacco/ Quigley, Wisniewski) - Renames New Jersey
Rating Plan and provides for changes in procedures for
payment of outstanding surcharges
This bill amends the law creating the New Jersey Merit
Rating Plan to change the name of the plan to the Motor
Vehicle Violations Surcharge System. The bill further
changes the term "plan surcharges" to "surcharges."
These changes are intended to make the terminology of
the statute establishing the surcharge regime more closely
reflective of the character of that regime.
In addition, the bill amends the "Merit Rating
Plan" (now the "Surcharge System") to provide
that a driver failing to pay a surcharge under the Surcharge
System may, by paying at least five percent of each outstanding
surcharge assessment owed, remove the driver's suspension
for failure to pay. Currently the Motor Vehicle Commission
may authorize payment of surcharges on an installment
basis for a period not to exceed 12 months for assessments
under $2,300, or not exceeding 24 months for assessments
of $2,300 or more. The bill provides that the commission
may, for good cause, authorize installment payments for
a period not exceeding 36 months irrespective of the surcharge
assessment. The other permissible installment periods
are 12 and 24 months.
The bill further provides that a surcharged driver against
whom a certificate of debt has been filed for non-payment
of a surcharge shall not be eligible for the restoration
of his driving privilege until at least five percent of
each outstanding surcharge assessment that his resulted
in the suspension, including interests and costs, if any,
has been paid to the commission.
5. New Law permits poor people to perform community service
in lieu of fines S-2332/A-3526(Turner/ Wisniewski, Quigley,
Cohen) - Authorizes payment options for certain motor
vehicle fines and fees.
This amended bill would permit the court to waive certain
unpaid portions of court-imposed time payment orders for
certain defendants and impose other requirements in lieu
of the remaining unpaid amount. Specifically, for a defendant
who is indigent or is participating in a government-based
income maintenance program, the court may waive an unpaid
portion, up to $200, of any court-imposed time-payment
order, as a result of a conviction for a motor vehicle
traffic violation or a parking offense and, in lieu of
the remaining unpaid amount, require the defendant to
perform community service for a period of time to be determined
by the court, or participate in any program authorized
by law, or satisfy any other aspect of a sentence imposed.
For the purpose of determining indigency to waive the
unpaid portion, the guideline for the court is an income
up to 250 percent of the federal poverty level. The amended
bill excludes persons convicted of driving while intoxicated
or refusing to take a breathalyzer test from being eligible
for the waiver.
The committee amended the bill to eliminate a provision
giving the court the option to suspend or vacate up to
one half of the unpaid portion of fines and surcharges
(other than for unsafe driving) imposed on a low-income
defendant, and to authorize instead the waiver of up to
$200 of the remaining unpaid amount. The committee also
excluded persons convicted of driving while intoxicated
and refusing the breathalyzer test from the bill and established
250 percent of the federal poverty level income as a guideline
for indigency. Finally, the committee deleted language
which would have permitted the chief administrator to
waive the $100 license restoration fee or permit it to
be paid in installments.
6. New Law grants the court discretion regarding imposition
of penalties for certain drug offenses and to allow "reformative
service" to satisfy a portion of such penalties when
certain conditions are met. S-2930/A-4570 (Girgenti, Sacco/
Watson Coleman, Fisher)
This bill would grant the court the discretion to lessen
the penalties for certain drug offenses and to allow certain
defendants to perform "reformative service"
in lieu of a portion of such penalties.
Under current law, set forth in N.J.S.2C:35-15, in addition
to any other disposition ordered by the court, every person
convicted of or adjudicated delinquent for an offense
involving a controlled dangerous substance, controlled
substance analog, counterfeit substance or drug paraphernalia
is assessed a mandatory penalty for each such offense.
The penalties are $3,000 in the case of a crime of the
first degree; $2,000 in the case of a crime of the second
degree; $1,000 in the case of a crime of the third degree;
$750 in the case of a crime of the fourth degree, and
$500 in the case of a disorderly persons or petty disorderly
persons offense. The penalties generally are required
to be imposed for each conviction, even if other aspects
of the sentence are ordered to be run concurrently. These
penalties are informally known as "DEDR" penalties
because they are deposited in the "Drug Enforcement
and Demand Reduction Fund" ("DEDR"). The
funds are appropriated for use in programs to prevent
and treat drug and alcohol abuse.
The bill would expand the circumstances under which
the court has discretion to allow imposition of a single
penalty, instead of multiple penalties. Specifically,
the bill would authorize the court to impose the penalty
applicable to the highest degree offense for which the
person is convicted or adjudicated delinquent under the
following circumstances:
(1) the imposition of multiple penalties would constitute
a serious hardship that outweighs the need to deter the
defendant from future criminal activity; and
(2) the imposition of a single penalty would foster
the defendant's rehabilitation.
The bill also provides that, in the alternative, the
defendant may propose to the court and the prosecutor
a plan to perform "reformative service" in lieu
of payment of up to one-half of the DEDR penalty in appropriate
cases. The bill provides that "reformative service"
includes training, education or work, in which regular
attendance and participation is required, supervised,
and recorded, and which would assist in the defendant's
rehabilitation and reintegration. "Reformative service"
includes, but is not limited to, substance abuse treatment
or services, other therapeutic treatment, educational
or vocational services, employment training or services,
family counseling, service to the community and volunteer
work.
Under the bill, the court, in its discretion, would
determine whether to accept the plan, after considering
the position of the prosecutor, the plan's appropriateness
and practicality, the defendant's ability to pay and the
effect of the proposed service on the defendant's rehabilitation
and reintegration into society. The court would determine
the amount of the credit that would be applied against
the penalty upon successful completion of the service.
The credit could not exceed one-half of the penalty amount
assessed.
Any reformative service plan ordered under the bill
would be in addition to and not in lieu of any community
service imposed by the court or otherwise required by
law. The bill provides that the court's authority to order
a person to participate in any activity, program or treatment
in addition to those proposed in a reformative service
plan would not be limited.
The defendant would be entitled to the credit against
the DEDR penalty when he provides the court with proof
of successful completion of the reformative service.
This bill embodies a recommendation of the Governor's
Strategy for Safe Streets and Neighborhoods, announced
earlier this year.
7. Other New Traffic, Criminal and Civil Laws signed in
January:
A-4314/S-2123 w/Statement (Wisniewski, Stack, Vas/ Coniglio)
- Establishes pilot program for traffic control signal
monitoring system.
This means your child or someone else is driving your
car, passes a red light- you get a ticket in the mail
and have to go to court
ACS for A-3623/SCS for S-2387 (Watson Coleman, Payne/
Girgenti, Sarlo) - Establishes certificate of rehabilitation
for certain persons with criminal records.
The Assembly Law and Public Safety Committee reports
favorably an Assembly Committee Substitute for Assembly
Bill No. 3623. This Assembly Committee substitute for
Assembly Bill No. 3623 establishes a program to assist
persons with criminal convictions in procuring employment
or obtaining professional licenses or certifications under
certain circumstances.
Under the substitute, a person with a criminal conviction
could apply for a certificate that would relieve disabilities,
forfeitures or bars to (1) public employment; (2) qualification
for a license or certification to engage in the practice
of a profession, occupation or business, except the practice
of law; and (3) admission to an examination to qualify
for such a license or certification, except for the bar
examination, or an examination for a law enforcement,
homeland security, or emergency management position.
"Public employment" is defined in the bill
as employment by a State, county, or municipal agency.
It does not include elected office, or employment in law
enforcement, corrections, or the judiciary, or a position
related to homeland security or emergency management.
The bill's provisions do not apply to private employers,
but these employers may consider such a certificate in
making employment decisions.
A-4338/S-65 (Wisniewski, Watson Coleman/ Sacco, Ciesla)
- Revises organization and certain functions of Motor
Vehicle Commission.
A-4455/SCS for S-2536 (Caraballo, Biondi, Prieto/ Gill)
- Provides for licensure of massage and bodywork therapists
and registration of their employers.
SCS for S-360/ACS for A-3428/2186 (Adler, Vitale, Bryant/
Conaway, Greenwald, Cohen, Gusciora, Manzo) - Establishes
the "New Jersey False Claim Act."
S-1977/A-4304 (Codey, Girgenti, Greenstein, Diegnan,
Van Drew) - Creates the "Internet Dating Safety Act,"
requiring Internet dating services to provide notice whether
the service conducts criminal background screenings.
S-1978/A-4096 (Codey, Girgenti/Greenstein, Chivukula,
Voss, Manzo, Vas) - Provides for mandatory term of imprisonment
for luring and enticing an adult; increases mandatory
term for luring and enticing a child.
S-2055/A-3943 (Sweeney, Kavanaugh/ Burzichelli, Scalera)
- Increases fees and penalties under the "Explosives
Act."
S-2329/A-3235 (Turner/ Prieto, Wisniewski, Voss) - Establishes
a public awareness campaign concerning the importance
of keeping a current address with MVC.
SCS for S-2431/ACS for A-3035 (Girgenti, Sarlo/Barnes,
Johnson, Manzo, Gordon) - Establishes as crime of the
second degree unlawful possession of certain handguns.
SCS for S-2480/ACS for A-3975 (Codey/Watson Coleman,
Evans) - Requires MVC to provide minor's motor vehicle
record to parent or guardian.
S-2932/A-2697 (Girgenti, Sacco/ Cohen) - Establishes
the transport of firearms into State for purposes of an
unlawful sale or transfer as a crime of the second degree.
S-2934/A-4620 (Turner/Manzo, Johnson) - Requires owner
to report loss or theft of firearm to policy within 36
hours.
S-2975/A-4591 (Buono, Weinberg/ Caraballo, Vainieri Huttle,
Chivukula, McKeon) - Revises laws concerning hate crimes
and bullying; establishes Commission on Bullying in Schools.
A-2158/S-206 (Mayer, McHose, Vas, Van Drew/Allen, Girgenti)
- Revises qualifications to carry firearms for certain
retired police officers.
A-2224/S-1981 (Van Drew, Giblin, Albano/ Bucco, Girgenti)
- Authorizes trained and qualified county corrections
to carry a firearm at all times in New Jersey.
A-2379/S-1757 (Caraballo, Munoz, Conaway/ Vitale) - "Access
to Medical Research Act"; authorizes certain persons
to give informed consent for medical research if subject
of research is unable to give consent.
A-2602/S-2470 (Manzo, Johnson, Sires/Turner) - Regulates
sale of ammunition.
A-2976/S-3009 (Conners, Chatzidakis, Mayer, Voss/Adler)
- Provides mandatory fines and community service for theft
of headstones, headstone markers, flags or flag holders
from grave sites.
A-3022/S-1923 (Panter, Chivukula/ Karcher, Sarlo) - Prohibits
payment of temporary disability benefits when disability
is incurred as result of fourth degree crime or gross
misconduct.
A-3451/S-2488 (Schaer, Cohen/ Weinberg, Sarlo) - Makes
it unlawful to discriminate against employees because
of religious practices.
ACS for A-312/2591/S-2736 (Cohen, Vandervalk, Voss, Gordon/
Karcher, Vitale) - Requires hospitals and health care
professionals to advise women of option to donate or store
umbilical cord blood and placental tissue.
A-868/S-1523 (Stanley, Greenstein, Voss/Turner, Weinberg)
- Requires school districts to notify DYFS of certain
pupil absences.
A-2667/S-1756 (Manzo, Gusciora, Conaway, Stack/L. Connors,
Inverso) - Upgrades penalties for recruiting minors and
confined persons to be in criminal street gang.
A-3622/S-2304 (Vas, Chivukula, Van Drew, Wisniewski/T.
Kean, Vitale) - Provides certain employment protections
for employees on military leave in time of war or emergency.
More new laws at: http://www.nj.gov/governor/news/news/approved/news_archive.html
8. Hon. Emery Z. Toth to speak at DWI Update 2008.
Monday, January 28, 2008
Speaker: Hon. Emery Z. Toth
Judge: Woodbridge, Perth Amboy
Past Chief Judge: Edison, Sayreville, Old Bridge
Also, one of the Counsel on the Chun Alcotest case with
provide update on this continuing saga.
Time: 4:00-6:00 p.m.
Location: NJ Law Center One Constitution Square New
Brunswick, NJ
Municipal Court Section meeting
New Jersey State Bar Association
There is no fee for members to attend this meeting.
The meeting is also free to individuals who attended the
November 19 ICLE program "Handling Drug, DWI &
Serious Municipal Court Cases". For more information,
contact Program Chair Kenneth Vercammen at 732-572-0500.
Judge Toth is one of the most respected Judges in the
State of New Jersey. He was selected by the NJ State Bar
Association to lecture at its Annual Meeting several times
on current trends in Prosecution of DWI. He received high
praise from the Prosecutors, Judges and attorneys in attendance.
He also was invited numerous times to serve on the panel
as a faculty member for various seminars. The programs
included "Municipal Court- Winning Strategies"
and "Handling DWI Cases." These were very good
programs and well received by those in attendance. He
also addressed a joint meeting of the Middlesex County
Municipal Court Prosecutors Association and Bar Association.
Judge Toth is an excellent judge who always treats the
police, witnesses and litigants with respect. He was chosen
to handle many high profile and complex conflict cases
by the Assignment Judge based on his experience. He has
served as a Municipal Court Judge for 18 years.
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KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
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