Metuchen NJ Public Defender Volunteer Internships available for college students and recent grads 2019

   Metuchen NJ Public Defender Volunteer Internships available for college students and recent grads 2019 

      The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen invites students interested in attending law school or a career in law enforcement to apply to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and occasional Friday morning court sessions. Please post for your students. If your law school uses Handshake or Simplicity and this is not currently posted, please email us at Vercammenlaw@njlaws.com

      Information regarding our program plus bio information can be found on the website.

www.njlaws.com/public-defender-volunteer.html

      Interested students must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered. Emails not accepted. After sending the resume and cover letter, call the office. The Public Defender does not have a paid staff so it is difficult to post to multiple websites. 

Mail or fax cover letter and resume to

Kenneth Vercammen, Esq.

Public Defender for the Borough of Metuchen

c/o 2053 Woodbridge Ave.

Edison, NJ 08817

Fax 732-572-0030

Very truly yours,

KENNETH   VERCAMMEN,

Metuchen Public Defender Volunteer Internship Mentor Program Director

 PUBLIC DEFENDER OF METUCHEN VOLUNTEER LEGAL INTERNS NEEDED

  Court times: WEDNESDAY 1pm PM [approx]- 7:30 PM,   once a month Friday 9-12, plus hearing preparation work.

             Volunteer Internship Description:

-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses

-Make demands for Discovery on Prosecutor and review police reports

-Attend hearings and learn from experienced trial attorneys

-Prepare Motions to Suppress Evidence and Motions to Compel Discovery

-Conduct appropriate Legal research

-Acquire skills in Criminal Law and Procedure by active participation

-Participate in Public Relations activities for NJ State Bar Association, American Bar Association ABA and help organize seminars

- Update Lists of Prosecutors, Judges and Attorneys for publication of

    NJ Municipal Court Law Review

-      Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

-      Add new criminal cases, criminal statutes and criminal articles to our Public Defender blog: http://criminal-jury.blogspot.comand other legal blogs and websites for use of clients and the general public.

-      Add Motor vehicle statutes, criminal court rules to websites to assist persons charged with criminal, traffic, DWI and municipal court complaints

-    Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.

-     -Help edit the  new book “Handling DUI and Drug Possession Defense” written by Kenneth Vercammen

        Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given research assignments. You can work more hours if you want. Help people less fortunate than you who are down on their luck.

        Program lasts 12 weeks Minimum Volunteer time commitment in summer- 18 hours per week. For Summer- Law students only. Fall & Spring 12 hours per week. Send cover letter and resume. After sending resume, call to schedule interview  732-572-0500.

         Mail or fax cover letter and resume to

Kenneth Vercammen, Esq.

Public Defender for the Borough of Metuchen

c/o 2053 Woodbridge Ave.

Edison, NJ 08817      

 Fax 732-572-0030

   No emails

2019 Proposed law revises the penalty provisions for various drunk driving offenses, particularly making changes concerning the use of, and applicable time periods covering, driver’s license forfeitures andinstallations of ignition interlock devices on motor vehicles owned or operated by these drivers.

ASSEMBLY JUDICIARY COMMITTEE

STATEMENT TO
ASSEMBLY COMMITTEE SUBSTITUTE FOR
ASSEMBLY, No. 2089
STATE OF NEW JERSEY
DATED: NOVEMBER 26, 2018
The Assembly Judiciary Committee reports favorably Assembly Committee Substitute for Assembly Bill No. 2089.
This substitute bill revises the penalty provisions for various drunk driving offenses, particularly making changes concerning the use of, and applicable time periods covering, driver’s license forfeitures andinstallations of ignition interlock devices on motor vehicles owned or operated by these drivers.
Drunk Driving
Concerning the offense of driving under the influence of alcohol or drugs (R.S.39:4-50), the bill revises the relevant penalty provisions as follows:
For a first offense, if that offense involved a person’s bloodalcohol concentration of 0.08% or higher but less than 0.10%, or otherwise operating a motor vehicle while under the influence of intoxicating liquor, the court would order a license forfeiture until the person installed an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, which would then remain on the vehicle for a period of three months, unless the court was clearly convinced, after consideration on the record of a series of aggravating and mitigating factors as set forth in the bill, to instead order a license forfeiture of three months (a six-month forfeiture would apply instead of device installation if the person did not own, lease, or operate any motor vehicle).
The aggravating and mitigating factors for consideration by the court to order a license forfeiture, instead of device installation would include, but not be limited to: the nature and circumstances of theperson’s conduct, including whether such conduct posed a high risk of danger to the public; the person’s driving record; whether the characterand attitude of the person indicate that the person would be likely to commit another violation; and the need for personal or general deterrence.
If the court did order the installation of the ignition interlockdevice, the person’s driver’s license would only be restored uponshowing proof of such installation, and the commission would imprint

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a notation concerning driving with the device on the person’s driver’slicense.
Additionally, for a person with an ignition interlock device installed on a motor vehicle, the three-month installation period would be subject to possible extension for an additional period of 30 days, commencing upon the expiration of the initial period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 30 days of the initial installation period; if the attempt to operate the vehicle occurred during any extended period, an additional 30-day extension would commence upon the expiration of such extended period. This extension would occur without need of further court order, following notification of the event to the affected person by the Chief Administrator of the New Jersey Motor Vehicle Commission. A person would have the right to appeal any extended period of ignition interlock installation administratively imposed for attempting to operate a motor vehicle with an impermissible blood alcohol concentration.
If the first offense involved a person’s blood alcohol concentrationof 0.10% or higher but less than 0.15%, the court would order a license forfeiture until the person installed an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, which would then remain on the vehicle for not less than seven months or more than one year, unless the court was clearly convinced, after consideration of the series of aggravating and mitigating factors as described above, to instead order a license forfeiture of not less than seven months or more than one year (a forfeiture of not less than one year or more than two years would apply instead of device installation if the person did not own, lease, or operate a motor vehicle). As above, if the person was ordered to install an ignition interlock device, the person could only reinstatethe person’s driver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could, when given notice by the chief administrator, have the installation period extended for one or more additional periods of 45 days, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 45 days of the installation period.
If the first offense involved a person’s blood alcohol concentrationof 0.15% or higher, the court would order a license forfeiture until the person installed an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, and maintain installation of the device during a period of license forfeiture of not less than seven months or more than one year and after the period of license forfeiture for an additional period of not less than seven months or more than one year, unless there was no such vehicle, in which case the person would

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receive a period of forfeiture of not less than two years or more than four years.
With respect to the license forfeiture of a person with a blood alcohol concentration of 0.15% or higher, the person would have the opportunity, beginning 90 days after the start of the forfeiture, topetition the court to restore the person’s driving privileges for theduration of the initially ordered period of forfeiture, subject to the person maintaining the installation of the ignition interlock device inthe person’s motor vehicle both for the remainder of the initiallyordered forfeiture period and afterward for the additional seven-month to one-year period. For a person whose driving privileges were forfeited for a two to four year period because the person did not own, lease, or operate a motor vehicle, such person may petition the court, upon proof of owning, leasing, or intending to operating a motor vehicle, to restore the person’s driving privileges for the duration ofthe forfeiture period after at least two years of the period have passed, subject to the person maintaining the installation of an ignition interlock device in that vehicle. As above, a person ordered to install an ignition interlock device could only restore a driver’s licensethrough the Motor Vehicle Commission upon showing proof of such installation, and could, when given notice by the chief administrator, have the installation period extended for one or more additional periods of 90 days, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 90 days of the installation period.
If the offense involved a “drugged” driver (i.e., operating a motor vehicle under the influence of a narcotic, hallucinogenic, or habit- producing drug), the court would order a license forfeiture of not less than seven months or more than one year, with no option to instead operate a motor vehicle with an ignition interlock device installed.
For any such first offense of drunk or “drugged” driving occurringon or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other first offenses.
For a second offense, the bill increases, for all drunk and“drugged” drivers, the period of license forfeiture from the current law’s two years to instead a period of not less than two years or morethan four years. The court would order a license forfeiture until the person installed an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the two to four year period of forfeiture, and to remain installed afterward for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive a period of forfeiture of not less than four years or more than eight years.
With respect to a second offender’s license forfeiture, a person who does not own, lease, or operate any motor vehicle may petition

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the court, upon proof of owning, leasing, or intending to operate a motor vehicle, to restore the person’s driving privileges for theduration of the forfeiture period after at least four years of the period have passed, subject to the person maintaining the installation of an ignition interlock device in that vehicle.
As above for any first offender, a person who is a second offender ordered to install an ignition interlock device could only reinstate adriver’s license through the Motor Vehicle Commission upon showing proof of such installation, and could, when given notice by the chief administrator, have the installation period extended for one or more additional periods, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 30, 45, or 90 days of the installation period, depending upon the blood alcohol concentration associated with the violation in the same manner as described above with respect to a first offense.
For a second offense occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other second offenses.
For a third or subsequent offense, the bill increases, for all drunkand “drugged” drivers, the period of license forfeiture from the currentlaw’s 10 years to instead a period of not less than 10 years or morethan 20 years. The court would order a license forfeiture until the person installed an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the 10 to 20 year period of forfeiture, and to remain installed afterwards for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive a period of forfeiture of not less than 20 years or more than 40 years.
With respect to a third or subsequent offender’s license forfeiture,a person who does not own, lease, or operate any motor vehicle may petition the court, upon proof of owning, leasing, or intending to operate a motor vehicle, to restore the person’s driving privileges forthe duration of the forfeiture period after at least 20 years of the period have passed, subject to the person maintaining the installation of an ignition interlock device in that vehicle.
As above for both first and second offenders, a person who is a third or subsequent offender ordered to install an ignition interlockdevice could only reinstate a driver’s license through the MotorVehicle Commission upon showing proof of such installation, and could, when given notice by the chief administrator, have the installation period extended for one or more additional periods, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 30, 45, or 90 days of the installation period, depending upon the blood alcohol concentration associated

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with the violation in the same manner as described above with respect to a first offense.
A third or subsequent offender would also be required to perform community service for a period of not less than 60 days, which would be in the form and on the terms as the court deemed appropriate. This would be, at a minimum, a doubling of the 30-day community service requirement under the current law for a second offender.
For a third or subsequent offense occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other third or subsequent offenses.
Refusing a Breath Test
Concerning the offense of refusing to submit to a breath test (section 2 of P.L.1981, c.512 (C.39:4-50.4a)), the bill revises the relevant penalty provisions as follows:
For a first offense, the court would order a license forfeiture until the person installed an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, which would then remain on the vehicle for not less than seven months or more than one year, unless the court was clearly convinced, after consideration on the record of a series of aggravating and mitigating factors as set forth in the bill, to instead order a license forfeiture of not less than seven months or more than one year (a forfeiture of not less than one year or more than two years would apply instead of device installation if the person did not own, lease, or operate a motor vehicle).
As above with respect to a drunk driving offense for a blood alcohol concentration of 0.10% or higher but less than 0.15%, if the person was ordered to install an ignition interlock device, the personcould only reinstate the person’s driver’s license through the MotorVehicle Commission upon showing proof of such installation, and could have the installation period extended for one or more additional periods of 45 days, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 45 days of the installation period.
For any first offense of refusing a breath test occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other first offenses.
For a second offense, the bill increases the period of license forfeiture from the current two years to instead a period of not less than two years or more than four years. The court would order a license forfeiture until the person installed an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the two to four year forfeiture period and remain installed afterward for a period of not less than one year or more than

6
three years, unless there was no such vehicle, in which case the person would receive a period of forfeiture of not less than four years or more than eight years.
A person who does not own, lease, or operate a motor vehicle may petition the court, upon proof of owning, leasing, or intending to operate a motor vehicle, to restore the person’s driving privileges forthe duration of the forfeiture period after at least four years of the period have passed, subject to the person maintaining the installation of an ignition interlock device in that vehicle.
As above with respect to a first offense of refusing a breath test, a person who is a second offender ordered to install an ignition interlockdevice could only reinstate a driver’s license through the MotorVehicle Commission upon showing proof of such installation, and could have the installation period extended for one or more additional periods of 45 days, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 45 days of the installation period.
For a second offense of refusing a breath test occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other second offenses.
For a third or subsequent offense, the bill increases the period of license forfeiture from the current 10 years to instead a period of not less than 10 years or more than 20 years. The court would order a license forfeiture until the person installed an ignition interlock device in each motor vehicle owned, leased, or operated by the person to be maintained during the 10 to 20 year period of forfeiture, and to remain installed afterwards for a period of not less than one year or more than three years, unless there was no such vehicle, in which case the person would receive a period of forfeiture of not less than 20 years or more than 40 years.
A third or subsequent offender who does not own, lease, or operate a motor vehicle may petition the court, upon proof of owning, leasing, or intending to operate a motor vehicle, to restore the person’s drivingprivileges for the duration of the forfeiture period after at least 20 years of the period have passed, subject to the person maintaining the installation of an ignition interlock device in that vehicle.
As above with respect to a first or second offense of refusing a breath test, a person who is a third or subsequent offender ordered toinstall an ignition interlock device could only reinstate a driver’slicense through the Motor Vehicle Commission upon showing proof of such installation, and could have the installation period extended for one or more additional periods of 45 days, commencing upon the expiration of the current installation period, for attempting to operate the vehicle with a blood alcohol concentration of 0.05% or higher during the final 45 days of the installation period.

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For a third or subsequent offense of refusing a breath test occurring on or near a school property or crossing, the bill would eliminate any enhanced penalties currently available under the law and instead treat such an offense the same as all other third or subsequent offenses.
Ignition Interlock Device Installation; License Reinstatement
A person required to install an ignition interlock device would be required to provide the vendor of the device at the time of installation the blood alcohol concentration, or information on the refusal to submit to a breath test, on which the sentence was based. Every vendor of an ignition interlock device would be required to adopt real time data reporting of the blood alcohol concentration of a person required to install a device and the predetermined fail level of each device.
With respect to all cases for which a person has been ordered to install one or more ignition interlock devices, the court would notify the Chief Administrator of the Motor Vehicle Commission. The commission would thereafter require that the one or more devices beinstalled before the reinstatement of the person’s driver’s license. Thecommission would imprint a notation on the restored driver’s licensestating that the person could not operate a motor vehicle unless it is equipped with an ignition interlock device, and would enter this requirement in the person's driving record.

Drug Recognition Evaluator (DRE)

Drug Recognition Evaluator (DRE) 
A Drug Recognition Evaluator (DRE) is a police officer who claims they  can recognize whether someone is on drugs, what kind of drugs they are  on, and whether their ability to drive has been impaired. The theory of  the DRE is that they claim to be able to determine whether someone is  under the influence of drugs through a visual evaluation. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated  September 20, 1999, p. 19.  There are few Appellate courts that have called them experts.
      DREs frequently administer their tests when someone is arrested for  drunk driving, but passes a breath test. The DRE's testimony may  provide better evidence for the prosecution than toxicology reports.  Blood tests may not measure the quantity of drugs taken and, even if  they do, may not show a level high enough to prove impairment. Urine  tests do not accurately pinpoint when the drugs were ingested and may  not show the quantity. Therefore blood and urine tests alone may not be  sufficient to prove the person was affected by drugs when they were  driving. The DRE argues they can provide the link between the  toxicology report and the Driving Under the Influence charge. The DRE  offers testimony that the defendant failed the physical tests  administered by the DRE, showing that the defendant may be impaired by  the drugs in his system. Lawyers Weekly USA , "Growing New Practice  Area for Drunk Driving Lawyers" dated September 20, 1999, p. 20.  The DRE advises that their examination of the suspect is broken into 5  parts:   1. Coordination tests.  The suspect must perform the "walk and turn," "one leg stand," "finger  to nose," and "Romberg balance" test (where he must estimate when 30  seconds have passed while standing with his head tilted back and his  eyes closed).
 2. Eye tests.  The DRE checks the suspect's pupil size under various lighting  conditions. He checks for "horizontal gaze nystagmus" where the eyes  twitch when looking off to the side and "vertical nystagmus" where the  eyes twitch when looking up. The DRE also checks to see if the eyes  cross normally when looking down at the nose.
 3. Vital signs.  The DRE measures the suspect's pulse, temperature and blood pressure.
 4. Muscle tone.  The DRE feels the suspects arm muscles to see if the are loose and  rubbery or tense.
 5. Visual inspection.  The DRE inspects the suspect’s mouth and nose for signs of drug  ingestion, the presence of drug debris and discoloration. The DRE   checks the suspect's arms for needle marks. Lawyers Weekly USA ,   "Growing New Practice Area for Drunk Driving Lawyers" dated September   20, 1999, p. 20.
 The DRE determines whether the results of the exam performed on the  suspect match symptoms associated with 7 drug classes. The drug classes  used are central nervous system (CNS) depressants, CNS stimulants,  hallucinogens, phencyclidine, narcotic analgesics, inhalants, and  cannabis. Journal of Analytical Toxicology, "Laboratory Validation Study  of Drug Evaluation and Classification Program: Ethanol, Cocaine, and  Marijuana", Vol. 20, October 1996, p. 468. For example, a person on a  depressant should have normal pupils, but twitching eyes on the   nystagmus tests, a slow pulse rate, low blood pressure, drowsiness, and   slurred speech. Persons on cannabis should have dilated pupils, no eye   twitching, a high pulse rate and blood pressure, their eyes may not  cross normally when they look down their nose, and they may have  disorientation. The DRE also interviews the arresting officer, reviews  the breathalyzer results and asks the suspect if he has been using  drugs. Finally, the DRE concludes whether the suspect is behaviorally  impaired, if the impairment is drug-related, and the drug class or   combination of classes likely to be causing the impairment. Lawyers  Weekly USA , "Growing New Practice Area for Drunk Driving Lawyers" dated   September 20, 1999, p. 20.
 Drug Recognition Experts are Not Recognized by New Jersey Courts  There is no decision from the New Jersey Supreme Court recognizing the  reliability of DRE testimony as proof of driving under the influence.  The written opinions which permit the admission of DRE testimony either  say the evidence is "non-scientific" or do not address this issue.  However, the recent U.S. Supreme Court case, Kumho Tire Co. v.  Carmichael, 119 S.Ct. 1167 (1999), extends the Daubert screening test    for expert testimony to "non-scientific" testimony. Therefore, if the N.J. Supreme Court adopts Kumho, the DRE's testimony would not qualify  as reliable evidence using the Daubert test. See Lawyers Weekly USA ,
 "Growing New Practice Area for Drunk Driving Lawyers" dated September  20, 1999, p. 20.
source  Lawyers  Weekly USA
Kenneth Vercammen Esq. 732-572-0500 
2053 Woodbridge Ave. Edison, NJ 08817
https://njlaws.com/index.asp

Refusal Penalty not Taking Breath Test

Refusal Penalty not Taking Breath Test

The State must prove all elements of a refusal beyond a reasonable doubt. State v. Cummings 184 N.J. 84 (2005). [Not preponderance]
         The elements the state must prove are whether a driver refused to submit to the test upon request of the officer..., N.J.S. 39:4-50.4a(a), and whether the taking of samples were made in accordance with the provisions of this act.... N.J.S. 39:4-50.2(a).  There are sometimes defenses based on errors by the testing officer in the attempt to obtain a sample.
         The Refusal Act requires, “A standard statement, prepared by the director, shall be read by the police officer to the person under arrest. N.J.S. 39:4-50.2(e).  This statement, by statute, mandates that the police officer shall inform the person tested of his rights N.J.S. 39:4-50.2(d).
 There must be testimony that all the warnings were supplied to the drivers. That is the state’s job.
Failure to read the correct standard statement completely is a defense to refusal.
Pursuant to the implied consent law, N.J.S.A. 39:4-50.2(e), the Attorney General's current standard statement (revised and effective July 1, 2012), to be read to motor vehicle operators to inform them of the consequences of refusing to submit to a breath test, provides, in pertinent part
5. If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated.
6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.
The court in State v Quintero 443 NJ Super. 620 (App. Div. 2016) held that the current standard statement, [if read correctly] satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. 




 However, There was no testimony this correct statement was actually read to the person sitting in the car, not driving.
 The Alcotest operator must follow specific machine instructions.
       The NJ Supreme Court in State v. Chun 194 N.J. 118 (2008) wrote: The operator then attaches a new, disposable mouthpiece and removes cell phones and portable electronic devices from the testing area. The operator is required to read the following instruction to the test subject: “I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?” Chun at 80-81.  If the operator fails to follow these instructions,   the defendant is not guilty of refusal. There was no testimony this was said to the defendant.

         "Zealousness in ridding our roads of drunk drivers cannot overcome our ordinary notions of fairness to those accused of these offenses. State v. Chun 194 N.J. 118 (2008)  And from time to time, courts must re-examine much of our earlier jurisprudence as part of our consideration of the issues raised in this appeal. Id. at  
       Based on the seriousness of the consequences of a refusal conviction, our Supreme Court in recent years has redefined the offense from civil to quasi-criminal in character.  For example, the Supreme Court held that double jeopardy principles barred retrial of a refusal acquittal even though the facts would otherwise support conviction. State v. Cummings supra at 92-93 (internal citations omitted). Also, the Court elevated the burden of proof required for conviction from preponderance of the evidence to proof beyond a reasonable doubt, State v. Widmaier 157 N.J. 475  (1999) despite the plain language of the statute. Ordinary notions of due process and fair play, especially within a statutory scheme that contemplates reading a standard statement to convey information to an arrestee, militates against the creation of a conclusive presumption that a mere reading of a standard statement in a way that is unintelligible to particular defendant constitutes proof of an element of the offense beyond a reasonable doubt.

Kenneth Vercammen Esq. 732-772 -0500. 2053 Woodbridge Ave. Edison, NJ https://www.njlaws.com/refusal_of_breathalyzer.html?id=782&a=

NO DWI pleas

NO DWI plea

New Jersey Judiciary

Change in DWI Plea Agreements in Municipal Court

New Jersey Chief Justice Deborah T. Poritz signed an order amending the “Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.” As explained in the Notice to the Bar signed by Administrative Director Judge Philip S. Carchman, the plea agreement guidelines are being amended to address issues raised by two recent changes to New Jersey’s drunk driving laws.

“These changes in the law set up a scenario whereby drivers who were stopped for suspected drunk driving for the first time and who refused to take a blood alcohol test could take advantage of a ‘loophole’ in the system,” said Judge Carchman.

In January 2004, the Legislature amended the law to add a new level of offense for drivers with a blood alcohol content (BAC) of 0.08 percent or higher, but less than 0.10 percent. First-time offenders with a lower level BAC face a three-month license suspension. Drivers with a higher BAC face a seven-month suspension, up from the six months under the old law. Drivers who refuse to take the BAC test typically face two charges, one for driving while intoxicated and one for refusing to take the test. In addition to the seven-month suspension for refusing to take the BAC test, the new law calls for a three-month suspension on the charge of drunk driving for drivers who refuse to take the test. These sentences may be served concurrently.

In April 2004, the Legislature increased the license suspension for refusing to take the BAC test from six months to seven months. This amendment made penalties under the new law consistent with the penalties under the old law: Refusing to take the test carries the same penalty as having a high BAC reading.

Judge Carchman explains in the Notice to the Bar that, rather than suffer a seven-month suspension for refusing to take the test, a driver could agree to plead guilty to driving while intoxicated with a BAC of between 0.08 and 0.10, and accept a three-month suspension in exchange for a dismissal of the charge for refusing to take the test. Without the results of a blood test to prove exactly what the blood alcohol level was, the guilty plea for the lower BAC could be accepted and the driver’s license suspended for three months.

“It is clear that the Legislature intended to make the penalties for driving drunk in New Jersey more severe and to identify a broader range of drinking and driving as illegal. Some members of the legal community have expressed concern that the amended guidelines would result in more trials. We have no clear indication of that result. However, if more trials occur, we will handle them. The alternative is unacceptable,” he added.

The amended guidelines prohibit plea agreements that result in the dismissal of  charges for refusing to take the blood alcohol test in exchange for pleading guilty to drunk driving. The amended guidelines also make it clear that attempts to plead guilty to the lower level offense, despite a BAC of 0.10 or higher, are strictly prohibited. The changes become effective July 1, 2005.

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The Notice to the Bar, Supreme Court Order and amended guidelines are posted on the Judiciary Web site at njcourtsonline.com

Judiciary News Release

39:4-50 Driving while intoxicated first offense

39:4-50  Driving while intoxicated

39:4-50. (a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood shall be subject:

(1)For the first offense:

(i)if the person's blood alcohol concentration is 0.08% or higher but less than 0.10%, or the person operates a motor vehicle while under the influence of intoxicating liquor, or the person permits another person who is under the influence of intoxicating liquor to operate a motor vehicle owned by him or in his custody or control or permits another person with a blood alcohol concentration of 0.08% or higher but less than 0.10% to operate a motor vehicle, to a fine of not less than $250 nor more than $400 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of three months;

(ii)if the person's blood alcohol concentration is 0.10% or higher, or the person operates a motor vehicle while under the influence of narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10% or more to operate a motor vehicle, to a fine of not less than $300 nor more than $500 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year;

OK for Rutgers University police officer to stop and arrest a defendant for DWI State v. Goines,

OK for Rutgers University police officer to stop and arrest a defendant for DWI   

State v. Goines, N.J. Super. Law Div. ( (Oct. 19, 2017) Docket NO. MA-37-2016 

SUPERIOR COURT OF NEW JERSEY MIDDLESEX COUNTY
LAW DIVISION, CRIMINAL PART MUNICIPAL APPEAL NO. MA-37-2016

APPROVED FOR PUBLICATION November 5, 2018 COMMITTEE ON OPINIONS

Brian D. Gillet, Assistant Prosecutor, attorney for plaintiff (Andrew C. Carey, Middlesex County Prosecutor, attorney).
Dennis Alan Auciello, attorney for defendant. R. J. JONES, J.S.C.
Rutgers University police arrested defendant Bentee M. Goines on July 17, 2016, in New Brunswick and charged him with driving while intoxicated. This appeal requires me to decide whether the officer had jurisdiction to stop, arrest, and charge Goines. The municipal court judge held that the officer lacked jurisdiction to do so and dismissed the charges. I reach a different conclusion.

I. Background
Rutgers University Police Officer Angelina Vartanova stopped Goines just south of the ramp from Ryders Lane onto Route 1. According to the officer, Goines illegally crossed a double yellow line to pass another car near a traffic circle where Ryders Lane and George Street meet. After seeing this, Officer Vartanova turned on the overhead lights to her police car and followed Goines to the Route 1 ramp, where she pulled him over. This occurred in the City of New Brunswick.
After performing field sobriety tests and making other observations, Vartanova brought Goines to the police station for an Alcotest. The test showed a 0.14% blood-alcohol level, and as a result, police charged him with driving while intoxicated, which violates N.J.S.A. 39:4-50. When Goines appeared in the New Brunswick Municipal Court to respond to the charges three months later, his attorney moved to dismiss the summons for lack of jurisdiction.
According to Goines, a 2004 memorandum of understanding between Rutgers and New Brunswick only allows Rutgers police to enforce motor vehicle laws on certain city streets. Without dispute, the offense and arrest did not occur on one of those streets. As a result, the municipal court judge agreed with Goines and granted the motion. This appeal followed.

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II. Standard of Review
The State may appeal to the Law Division as of right when a municipal court enters a pretrial order dismissing a complaint. R. 3:24(b). On appeal, both legal and factual issues are reviewed de novo. C.S. v. Middletown Twp. Bd. of Educ., 259 N.J. Super. 340, 343 (App. Div. 1992). The appeal here involves a purely legal issue. Thus, I must decide the issue anew, with no special deference to the municipal court decision.III. Analysis
The issue here is straightforward: Did Rutgers police have legal authority to stop and arrest Goines, as well as charge him with driving while intoxicated? More specifically, the question is whether Rutgers police had jurisdiction even though the offense took place on a New Brunswick street not covered by the memorandum of understanding between the city and university. In deciding this issue, several statutes come into play, and this appeal turns on their interpretation. Before getting to that, though, it is helpful to set out the law regarding jurisdiction generally.
Jurisdiction is the predicate to a legal arrest. State v. Cohen, 73 N.J. 331, 342 (1977). Typically, police officers can only exercise the powers of theiroffice “within the confines of the jurisdiction which employs them.” Ibid. Therefore, absent legislative or other legal authority, if a police officer arrests

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someone outside the officer’s home jurisdiction, the arrest is illegal. Ibid. In addition, evidence arising from the arrest will be suppressed. See State v. Williams, 136 N.J. Super. 544, 548 (Law Div. 1975) (recognizing that evidence from an illegal arrest is normally suppressed).
Knowinghowuniversitypolicedepartmentsfunctionisalsohelpful. Title 18A, which governs higher education in New Jersey, permits colleges and universities to create police forces with the approval of the Superintendent of the State Police. N.J.S.A. 18A:6-4.1. University police officers get the same training as State and local police. Ibid.; N.J.S.A. 18A:6-4.4. Moreover, unless restricted by the university, they have the same authority in “criminal cases and offenses against the law” as do other officers in New Jersey. N.J.S.A. 18A:6- 4.5.
Title 18A also gives university police departments authority to enforce traffic laws. N.J.S.A. 18A:6-4.7. It allows university police “while on duty andwithin the territorial limits of the municipalities in which [the university is]located” to “enforce the laws regulating traffic and the operation of motor vehicles” with the “concurrence” of the local police chief in the municipality where the university is located. Ibid. The Legislature enacted all these provisions in 1970. See L. 1970, c. 211, § 6. They came in the wake of civildisturbances on many of New Jersey’s campuses in the late 1960s. See Ralph

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A. Dungan, Rpt. to the N.J. Legislature Concerning the Recent Events and Disturbances at the Newark and Camden Campuses of Rutgers, The State Univ. (Mar. 31, 1969).
When originally introduced, the bill authorizing university police departments to enforce traffic laws did not include the “concurrence” language,which was added after Governor William T. Cahill conditionally vetoed the bill. See Governor’s Conditional Veto Statement to S. 764 (Sept. 17, 1970). According to Governor Cahill, “[s]pecial police appointed pursuant to [the] bill [had] sufficient responsibility within the boundaries of the campus where they[were] employed.” Ibid. He went on to note that “[w]hile in some instances it may be desirable for them to render assistance to municipal police in connection with traffic control outside campus boundaries, this should only be done at therequest of the local police chief.” Ibid.
When read in isolation, Title 18A might suggest that Goines has a winning argument, namely, that Rutgers police did not have authority to stop, arrest, and charge him, because the facts leading to the arrest took place on a road not covered in the concurrence agreement (i.e., memorandum of understanding) between Rutgers and New Brunswick. If only Title 18A governed, then police logically might not have had jurisdiction for the arrest, and the arrest would therefore have been illegal.

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But the analysis cannot end with Title 18A. The Motor Vehicle Code,Title 39, allows “any law enforcement officer” to arrest someone who commitsa moving violation, or more on point, violates N.J.S.A. 39:4-50, which prohibits driving while intoxicated:
Any law enforcement officer may, without a warrant, arrest any person violating in his presence any provision of chapter 3 of this Title, or any person . . . violating in his presence any provision of chapter 4 of this Title. A law enforcement officer may arrest without a warrant any person who the officer has probable cause to believe has operated a motor vehicle in violation of R.S. 39:4-50 . . . regardless of whether the suspected violation occurs in the officer's presence ....
[N.J.S.A. 39:5-25 (emphasis added).]
The Appellate Division has held that the broad language of this statute (which contains no territorial limitations) permits municipal police officers to arrest traffic offenders outside the borders of their municipalities. State v. O’Donnell, 192 N.J. Super. 128, 130 (App. Div. 1983) (finding jurisdiction to arrest a drunk driver even though the arresting officer acted outside of the town that employed him).
When the court decided O’Donnell, N.J.S.A. 39:5-25 did not begin withthe phrase “[a]ny law enforcement officer,” but rather, only allowed a“constable, sheriff’s officer, police officer, peace officer, or the director” to
arrest those committing traffic violations. Id. at 130. The Legislature deleted 6

the old language and substituted the phrase “[a]ny law enforcement officer” in1994 (post-O’Donnell). See L. 1994, c. 184, § 4.
Nothing in the statute or legislative history explains why the Legislature made this change. Nevertheless, the amendment was part of a comprehensive set of revisions to the then-existing statutory scheme that prohibited driving while intoxicated. See ibid. (setting out the changes). For example, the revisions allowed police officers at the scene of a serious accident to test the driver for blood-alcohol levels. See L. 1994, c. 184, § 2. They also increased the penalties for refusing to submit to a blood-alcohol test (and made them more closely match those associated with a conviction for driving while intoxicated). Ibid.; Assembly Judiciary, Law & Pub. Safety Comm. Statement to A. 763 (March 21, 1994). And notably, they added language clarifying the ability of law enforcement personnel to arrest those suspected of drunk driving, even ifthe violation did not occur in the officer’s presence (assuming, of course, that the officer had probable cause for the arrest). See L. 1994, c. 184, § 4.1
The question that all this raises is straightforward: Why did the Legislature choose to substitute the phrase “[a]ny law enforcement officer” for
1 The added language reads as follows: “A law enforcement officer may arrestwithout a warrant any person who the officer has probable cause to believe has operated a motor vehicle in violation of R.S. 39:4-50 or section 5 of P.L. 1990, c. 103 (C:39:3-10.03), regardless of whether the suspected violation occurs inthe officer's presence.” L. 1994, c.184, § 4.

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the circumscribed list of officials contained in the original enactment? One could argue, as Goines does, that the change merely updated the language by omitting outdated law enforcement titles (constables, for example). This argument might seem logical at first blush.
But if the change represented simple house cleaning, there would be no need for the Legislature to use such a broad catchall phrase. It could have simply listed the types of officers to whom it was granting authority. Moreover, as noted above, the change is post-O’Donnell. A legislature is presumed to know about the judicial interpretations of its statutes. Chase Manhattan Bank v. Josephson, 135 N.J. 209, 227 (1994). Thus, the Legislature knew that courts had interpreted N.J.S.A. 39:5-25 to grant statewide jurisdiction for traffic offenses. That being the case, it would be odd for the Legislature to have usedthe phrase “[a]ny law enforcement officer” without knowing the ramifications. Goines believes this is the case, but I don’t believe the Legislature acted in sosloppy a manner.
Beyond this, one cannot look at the amendment in isolation. As noted above, the Legislature made the change while simultaneously strengthening drunk driving laws. This also suggests that the expansive language was no accident: it increased the number of officials with authority to arrest and charge those believed to be driving drunk. Thus, interpreting the statute to give

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university police additional jurisdiction is consistent with the theme of the amendments.
Additional jurisdiction is also consistent with the statutory scheme itself.“The overall scheme of [drunk driving] laws reflects the dominant legislativepurposetoeliminateintoxicateddriversfromtheroadwaysofthisState.” State v. Tischio, 107 N.J. 504, 514 (1987). Reading N.J.S.A. 39:5-25 to expand the number of police officials available to enforce these laws is consistent with this public policy. Moreover, like the interpretation given to N.J.S.A. 39:5-25 inO’Donnell, the interpretation I am giving that statute here “is consistent with therecognition that many motor vehicle violations, while not graded crimes,nevertheless pose an extremely grave menace to the public safety and welfare.” O’Donnell, 192 N.J. Super. at 130.
One might argue that the canons of statutory construction should lead to a different result. Generally, a specific statutory declaration prevails over a more general one. Williams v. Am. Auto Logistics, 226 N.J. 117, 126 (2016). Thus, because N.J.S.A. 18A:6-4.7 deals more specifically with university police and their jurisdiction, one might find that this statute should prevail over the more general jurisdiction set out in N.J.S.A. 39:5-25.
This argument has a major flaw: the timing of the enactments. The Legislature is also presumed to be aware of its long-standing enactments. Chase

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Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386, 402 (App. Div. 2011). Therefore, when it changed the language of N.J.S.A. 39:5-25 from a list ofdifferent kinds of officers to the phrase “[a]ny law enforcement officer,” the Legislature presumably knew university police were previously barred from conducting traffic control without the concurrence of the municipal police chief.
Even knowing this, the Legislature did not choose to limit the effect of the new language of N.J.S.A. 39:5-25 to exclude university police officers. The Legislature did not, for example, say that “any law enforcement officer, except for an educational-institution police officer under R.S. 18A:6-4.1” could stopdrunk drivers; it said any law enforcement officer could. This suggests that the amendment to N.J.S.A. 39:5-25 was intended to broaden the statute’sjurisdictional grant.
The next question, then, is whether the interpretation I am giving N.J.S.A. 39:5-25 can be squared with the language of N.J.S.A. 18A:6-4.7, which was left intact. It can. Nothing suggests that the Legislature added the “concurrence”language because it wanted to restrict university police officers from enforcing violations occurring right before their eyes. As the legislative history reveals, the goal of the “concurrence” language was to prevent university police from being overtaxed. F.J. McCaffrey, Statutory Construction 86 (1953) (noting how courts look at the purpose of and policy behind statutes when harmonizing

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them). The legislative history of N.J.S.A. 18A:6-4.7 does not indicate that the Legislature meant to thwart duly appointed and trained law enforcement officers from stopping drunk drivers who commit the violation in their presence. What’smore, to interpret the statute in this manner is illogical, as it would render these officers impotent to stop dangerous drivers when they see them.
Beyond this, N.J.S.A. 39:5-25 recognizes that a drunk driver requires immediate attention, as failure to respond immediately endangers the public. By contrast, N.J.S.A. 18A:6-4.1 is geared toward routine patrols and traffic control(as explained in Governor Cahill’s veto message). This is not a case where university police were called upon to conduct traffic control or routinely patrol outside the boundaries of their campus. Rather, it is a case where university police happened upon a drunk driver and needed to respond.
The situation here is akin to a municipal police officer who sees a violation outside the borders of the municipality that employs the officer. There are avariety of reasons officers leave their town’s borders. Three examples include prisoner pickups and drop-offs, meetings, and quicker routes to remote areaswithin their town’s borders. These types of examples apply equally to universitypolice. Logically, university police officers should not be handcuffed simply because they happen to be outside the borders of the university, just as municipal police officers are not handcuffed by the borders of their employing towns.

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Finally, nothing about the facts of the case involving Goines suggests that Rutgers police were routinely patrolling New Brunswick streets or conducting traffic control on those streets. Thus, the facts of the Goines case more aptly call for the court to apply N.J.S.A. 39:5-25.IV. Conclusion
It boils down to this: I find that Rutgers police had statutory authority to stop, arrest, and charge Goines on July 17, 2016. Thus, on de novo review, I deny the motion to dismiss. The decision of the municipal court is reversed, and the matter is remanded for further proceedings. I will issue an order consistent with this opinion.