Kenneth VercammenEdison, NJ 08817 featured on News 12 NJ regarding Miranda and knowing waiver of rights

Kenneth Vercammen & Associates, PC Law Office Edison, NJ 08817 featured on News 12 NJ

http://newjersey.news12.com/story/41241785/defense-argues-driver-in-deadly-crash-was-too-high-to-understand-rights

           Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his  Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton,61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing  Miranda v Arizona  384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flowers.

         In State v Flower224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam  224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that   since the Defendant could not understand his  Miranda  rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220.

         Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence.  State v Arcediano371 F. Supp. 457 (D. NJ 1974); See also  Wade v Yeager245 F. Supp 62 (D. NJ 1964).     

         The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently.  If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void.  If the suspect is suffering from a mental disability, which renders him incapable of understanding his constitutional rights, then any waiver is void.  The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs.

         Where circumstances cast doubt on knowing and intelligent  quality of alleged waiver of right to counsel, there can be no waiver.  State vs. Dickens192 NJ Super. 290 (App. Div. 1983).

         Intoxication is grounds to suppress statements. See e.g.  Common vs. Brithsher  563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid);  Common vs. Andel477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication,  his eyes glaring and had a strong odor of alcohol.  Statements made by defendant while in custody should suppressed.)

         The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst  304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality.

          Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger  838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct.  2832 100 L. Ed 2d 933 (1988).

         A Jackson-Denno hearing refers to the court proceeding determining whether a defendant’s confession was voluntary or involuntary, based onJackson v. Denno, 378 U.S. 368 (1964).At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce.  

Criminal Lawyers Job ABA p40

Issues to determine if defendant was “in custody”

Was defendant free to leave?

Was defendant put  in handcuffs?

Was he in patrol car?

Was he in police station?

Was he free to leave police station?

Was he given Miranda warning?

State v. S.J. Expungement must be requested immediately if dismissal

State v. S.J.

The state appealed from the denial of its motion to vacate an expungement order. Defendant was charged with multiple counts of criminal sexual contact and harassment. Defendant was acquitted on some counts, some were dismissed, with other counts resulted in a hung jury. Several months later, other charges and 36 additional disorderly persons offenses were dismissed as well. Several weeks after the trial court signed a dismissal order, the trial court sua sponte signed an order granting defendant an expungement. In support of its motion to vacate expungement, the state alleged that it was not notified of the expungement order for nearly six months. However, the trial court denied the state's motion. On appeal, the state argued that the trial court failed to follow the correct procedure for expungement after defendant failed to timely apply for expungement. Defendant conceded that he did not apply for expungement when his charges were dismissed but argued that there was no need to formally request an expungement because statutory law required the trial court to order an expungement. The court agreed with the state and reversed the trial court's order. The court rejected defendant's contention that only a municipal court defendant was required to apply for expungement. The court held that because defendant did not apply for expungement when his charges were dismissed or when he was acquitted of other charges, defendant's only path for relief was the other subsection of the expungement statute

Source https://www.law.com/njlawjournal/almID/1568946040NJA322918T/

STATE 

v. S.J., 

RECORD IMPOUNDED 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

ADecided September 19, 2019 

Before Judges Mayer and Enright. 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 15-09-2357. 

PER CURIAM 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3229-18T1 

        The State appeals from the April 1, 2019 order denying its motion to vacate an expungement order entered in June 2018. The State claims the expungement order was granted contrary to statutory law. We agree and reverse. 

        Defendant was charged with multiple counts of criminal sexual contact and harassment. He was acquitted of certain counts and additional counts were dismissed; still other counts resulted in a hung jury. A couple of months later, a number of other charges and thirty-six additional disorderly persons offenses pending against defendant were dismissed. A dismissal order was signed by the trial court on June 13, 2018 and on June 21, 2018, another order was signed sua sponte, granting defendant an expungement. The State indicates it was not notified of the expungement order until the end of November 2018. It moved to vacate that expungement order and its application was denied by order dated April 1, 2019, leading to the instant appeal. 

        On appeal, the State raises the following contentions: POINT ONE: 

        THE TRIAL COURT ERRED IN DENYING THE STATE'S MOTION TO VACATE THE EXPUNGEMENT ORDER BECAUSE THE EXPUNGEMENT ORDER WAS ORIGINALLY IMPROPERLY GRANTED UNDER N.J.S.A. 2C:52- 6(a). 

POINT TWO: 

SINCE THE PETITIONER FAILED TO APPLY FOR THE EXPUNGEMENT AT THE PROPER TIME, IF THE PETITIONER WISHES TO APPLY FOR AN EXPUNGEMENT, HE MUST FOLLOW THE PROCEDURE PURSUANT TO N.J.S.A. 2C:52-6(b). 

        Defendant concedes he did not apply for an expungement when his charges were dismissed. However, he insists there was no need to formally request the expungement. Defendant claims it would be "pointless" to require a defendant in the Law Division to petition for an expungement after dismissal or acquittal because of the mandatory language in N.J.S.A. 2C:52-6(a) compelling a Superior Court judge to order the expungement of all records and information relating to the arrest or charge "upon receipt of an application from the person." The defense posits that under N.J.S.A. 2C:52-6(a), only a municipal court defendant would need to apply for an expungement because a Superior Court judge would have no knowledge of dismissals, acquittals or discharges occurring in municipal court unless notified by a petitioner. 

The State counters that because defendant did not seek an expungement when his charges were dismissed or he was acquitted on other charges, he must pursue expungement under N.J.S.A. 2C:52-6(b). N.J.S.A. 2C:52-6(b), unlike N.J.S.A. 2C:52-6(a), does not mandate that an order of expungement be granted 

A-3229-18T1

upon the petitioner's application. Therefore, whether subparagraph (a) or (b) of the statute applies in the instant matter is significant. 

N.J.S.A. 2C:52-6(a) plainly states: 

When a person has been arrested or held to answer for a crime (or) disorderly persons offense . . . and proceedings against the person were dismissed, the person was acquitted, or the person was discharged . . . the Superior Court shall, at the time of dismissal, acquittal, or discharge, or in any case set forth in paragraph (1)[1]of this subsection upon receipt of an application from the person, order the expungement .... 

[(Emphases added).]
However, N.J.S.A. 2C:52-6(b) provides an option for expungement when a defendant does not apply for an expungement of an arrest or charge at the time of dismissal, acquittal or discharge. In fact, this section of the statute allows for a defendant to apply for an expungement "at any time following the disposition of the proceedings" by petitioning the court. If a defendant seeks an expungement under subparagraph (b), the petition need not be granted. Instead, proceedings which occurred in municipal court. 

        Under N.J.S.A. 2C:52-6(a), paragraph 1 of subsection (a) applies to the State retains the right to argue the expungement should be denied because the need for the availability of the records outweighs the petitioner's interest for expungement. 

        Although defendant insists only a municipal defendant must submit an application for an expungement, his argument is not persuasive. Administrative Directive #02-16, issued by The Administrative Office of Courts (Directive), refers specifically to Municipal and Superior Court proceedings and distinguishes between the two courts when referencing expungements under N.J.S.A. 2C:52-6(a)(1) and 2C:52-6(a), respectively. Section II.A.2. of this Directive confirms that where a "person was discharged without a conviction or finding of guilt on or after April 18, 2016 in the Superior Court, that court must, upon application by the person, order the expungement of all records relating to the arrest or charge at the time of the dismissal, acquittal, or discharge. See N.J.S.A. 2C:52-6a." (emphasis added). Of course, judges have an affirmative obligation to adhere to administrative directives. State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007). As defendant made no application for an expungement when his charges were dismissed or when he was acquitted of other charges, he was not entitled to relief under N.J.S.A. 2C:52-6(a). His remaining path for expungement, should he choose to pursue it, is under N.J.S.A. 2C:52-6(b). 

The balance of defendant's arguments do not warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E). 

Reversed. We do not retain jurisdiction. 

NJAC 13:19-6.15. List of approved BAIIDS and service centers

NJAC  13:19-6.15. List of approved BAIIDS and service centers

A list of the BAIIDs certified by the Chief Administrator under N.J.A.C. 13:19-6.7, and of the service centers where the BAIIDs may be obtained and serviced, may be obtained by contacting the Commission at the following address: 

New Jersey Motor Vehicle Commission 
PO Box 134 
Trenton, NJ 08666-0134 
(609) 292-7500 
or by accessing the Commission's website at 
www.state.nj.us/mvc .

Simple Interlock 7100 Boulevard 26 Suite 301A Richland Hills, TX. 76118	(844) 432-4775www.simpleiid.com
Best Labs 590 East Western Reserve Rd. Building 10-J Poland, OH 44514	(800) 219-9936 www.sensolockamerica.com
LifeSafer 4290 Glendale Milford Road Cincinnati, OH 45242-3704	(800) 475-7151 www.LifeSafer.com
1A Smart Start, Inc. 4950 Plaza Drive Irving,TX 75063	(866) 387-8366 www.smartstartinc.com
Guardian Interlock Systems 4290 Glendale Milford Road Cincinnati OH 45242-3704	(800) 499-0994 www.guardianinterlock.com
Draeger, Inc. 4040 W Royal Lane Suite 136 Irving, TX 75063	(856) 753- 9700 (800) 970-1002 www.interlockdevice.com
Alcohol Detection Systems 1718 Belmont Avenue Suite E Baltimore, MD 21244	1-888-STOP-DUI (888-786-7384)www.adsinterlock.com
Intoxalock 11035 Aurora Ave. Bldg. 1 Des Moines ,IA 50322	(833) 210-8424www.intoxalock.com/newjersey
Low Cost Interlock,Inc. 2038 W. Park Ave. Redlands, CA 92373	(844) 316-7988www.lowcostinterlock.com

NJAC 3:19-6.14 Indigent persons

NJAC  3:19-6.14 Indigent persons

(a)  An indigent person is eligible for a reduced installation charge and monthly leasing fees during the period the person is indigent. 

(b)  A person applying for reduced rates established at (c) below must present to the manufacturer or service provider proof that the person is indigent at the time of application. A valid participation card or a letter in original form from the governmental assistance program's sponsoring agency written on the agency's letterhead confirming participation in the governmental assistance program shall be acceptable forms of proof. 

(c)  The reduced rate for indigent persons is 50 percent of the installation charge and 50 percent of the monthly leasing fee.

NJAC  13:19-6.11 Service center requirements

(a)  Each service center in a manufacturer's network shall be able to service the manufacturer's BAIID in accordance with accepted industry standards and according to the instructions provided by the manufacturer of the BAIID. 

(b)  Each service center shall: 

1.  Be configured to provide a secure area that is both physically and visually inaccessible to customers, in which to service BAIIDs; 

2.  Provide a waiting area in which persons may wait during BAIID servicing, and an area for customer training; 

3.  Display in a place visible to BAIID customers a sign or certificate provided by the Commission that states "New Jersey Approved Ignition Interlock Service Center"; 

4.  Be equipped with the necessary tools, test equipment, and manuals for servicing BAIIDs; 

5.  Have a secure area in which to maintain materials, records, supplies and equipment related to the servicing of BAIIDs; 

6.  Keep as confidential and shall not disclose program participants' personal and medical information provided to the Service Provider, except to the Commission and to entities designated by the Commission as authorized to receive the information; 

7.  Monitor BAIIDs periodically, at intervals of no more than 67 days; 

8.  Maintain records required to be made pursuant to this subchapter and shall provide an individual's data logger record, either in computerized or hard copy form or both, for inspection by the Commission's authorized representatives for at least five years after BAIID removal; 

9.  Create a written record and photograph evidence of tampering or attempted tampering with or circumvention or attempted circumvention of the proper operation of a device; 

10.  Provide ignition interlock devices at reduced rates to indigent persons in accordance with N.J.A.C. 13:19- 6.14; 

11.  Operate during normal business hours; 

12.  Maintain a toll-free 24-hour emergency response telephone number; 

13.  Respond to requests for emergency response within 40 minutes of the request, and shall provide emergency service within 48 hours of the request; 

14.  Complete installation of a BAIID within seven days of a program participant's request; 

15.  Provide the program participant with a certificate of installation on a form provided by the Commission upon completion and delivery of the BAIID installation; 

i.  The certificate of installation shall contain the following information: 

(1)  The service provider's name, address, and telephone number; 

(2)  The installer's signature; 

(3)  The date of installation; 

(4)  The name and address of the registered owner of the vehicle in which the device is installed; 

(5)  The name and address of the person required by the court to have the BAIID installed, if different than the owner; and 

(6)  The make, model, year, vehicle identification number and license plate number of the vehicle in which the BAIID is installed; 

ii.  The service center shall attach the service invoice to the certificate of installation; 

16.  Provide user orientation, training, and support; 

i.  Training shall take the form of written instructions and hands-on training for operation of the BAIID installed in the participant's vehicle; 

ii.  Training shall include instructions on routine user care, cleaning, and maintenance, and procedures in emergencies; 

iii.  The service center shall provide the participant with a list of vehicle repairs or malfunctions that may affect the operation of the BAIID and instructions and procedures to be followed in the performance of vehicle repairs to avoid affecting the operation of the BAIID; and 

iv.  The service center shall provide the program participant with its 24-hour emergency telephone number and a list of service providers' locations and telephone numbers; and 

17.  Provide periodic servicing and calibration to ensure proper operation of the device and its tamper-detection capabilities that shall include: 

i.  Recalibration and performance of all periodic service required by the manufacturer; 

ii.  Inspection of the BAIID's external wiring insulation, connections, and sheathing, including connections to the vehicle and tamper seals to ensure proper functioning of the device and for any perforations, cuts or other evidence of possible tampering; 

iii.  Written documentation and photographing of any evidence of attempts to tamper with the BAIID, such as perforations or cuts; and 

iv.  If a service center observes that a BAIID is inoperable in any respect, confirmation that the BAIID is in fully operating condition, and restoration to fully operating condition. 

(c)  Service center personnel: 

1.  That service BAIIDs shall have the training and skills necessary to provide such service and to provide user orientation and support; 

2.  Shall not have been convicted of a crime substantially related to their qualifications, functions, and duties as service provider employees, including, but not limited to, convictions for the following offenses: 

i.  Perjury; 

ii.  Any felony; 

iii.  Violation of probation; or 

iv.  For personnel employed by an applicant for approval as a service center, any alcohol or drug-related offense within the five years prior to the date of application for approval; for personnel hired by an applicant or approved service center after that date, any alcohol or drug-related offense within five years prior to their hiring date; and 

3.  Shall have no record of a driver license or registration revocation, suspension, or denial for a violation or violations of motor vehicle safety equipment laws within the last five years prior to the commencement of their employment.

NJAC 13:19-6.10 Revocation of certification of BAIID

NJAC 13:19-6.10 Revocation of certification of BAIID

(a)  The Chief Administrator shall revoke certification of a BAIID, and remove it from the list of approved BAIIDs, upon one or more of the following grounds: 

1.  Evidence of repeated device failures due to gross defects in design, materials, or workmanship during manufacture; 

2.  Termination of manufacturer's liability insurance; 

3.  Notification that the manufacturer is no longer in business; 

4.  Request of the manufacturer to remove its BAIID from the list of approved BAIIDs; 

5.  Evidence that the manufacturer is not in compliance with the provisions of this subchapter, and the determination that the noncompliance impairs the integrity, safety, consistency, or cost-effectiveness of, or public trust in, the program; 

6.  Evidence that the manufacturer repeatedly is not in compliance with the provisions of this subchapter, and the determination that the repeated noncompliance impairs the integrity, safety, consistency, or cost-effectiveness of, or public trust in, the program; 

7.  Evidence that the BAIID was inaccurately represented to meet certification standards; or 

8.  Suspension, revocation or denial of certification or approval of a BAIID in another state. 

(b)  The effective date of revocation shall be 15 days after the Commission sends notification thereof to the manufacturer by certified mail, except in cases where the Chief Administrator determines immediate revocation is necessary for the safety and welfare of the public. 

(c)  Upon revocation of the Chief Administrator's certification of a BAIID, the manufacturer shall be responsible for removal of all such BAIIDs from the vehicles of persons that had the BAIID installed to meet court-ordered sentencing requirements, for any costs connected with the removal, and for the cost of installation of new BAIIDs that comply with this subchapter.

NJAC 13:19-6.9 Reports required from manufacturer after BAIID certification

NJAC  13:19-6.9 Reports required from manufacturer after BAIID certification

(a)  The manufacturer of a BAIID certified under N.J.A.C. 13:19-6.7 shall provide annually to the Commission the following: 

1.  A certified statement that its manufacture of the certified BAIID has not been modified or altered in any way; and 

2.  A summary of all complaints received and corrective action taken by the manufacturer concerning the servicing or use of the certified BAIID, that shall be categorized by: 

i.  Customer error of operation; 

ii.  Faulty automotive equipment other than the BAIID; 

iii.  Apparent misuse or attempts to circumvent the BAIID causing damage; 

iv.  BAIID failure due to material defect, design defect, or workmanship errors in construction; and 

v.  Vehicle or BAIID failure due to service provided by the manufacturer's service center. 

(b)  The manufacturer of a BAIID certified under N.J.A.C. 13:19-6.7 shall notify the Commission in writing if another state denies, suspends, or revokes certification or approval of the BAIID. This notification shall be made within 30 days after the manufacturer has received notice of the suspension, revocation, or denial of certification or approval of the BAIID, regardless of whether or not the manufacturer has sought review of the suspension, revocation or denial of certification or approval.

NJAC 13:19-6.8 Liability insurance

NJAC 13:19-6.8 Liability insurance

The manufacturer of a BAIID that is the subject of an application for certification under N.J.A.C. 13:19-6.7 shall carry product liability insurance with minimum liability limits of one million dollars per occurrence, with three million dollars aggregate total. The liability covered shall include defects in product design and materials as well as in the work of manufacturing. The proof of insurance shall include a statement from the insurance company that the insurance company shall provide the Commission with written notice of cancellation of the insurance 30 days before cancellation of the insurance.

NJAC 13:19-6.5 Specifications for BAIIDs

NJAC 13:19-6.5 Specifications for BAIIDs

(a)  A BAIID installed to meet court-ordered sentencing requirements pursuant to N.J.S.A. 39:4-50 and 39:4-50.17 shall meet or exceed the specifications for performance and testing of the NHTSA Model Specifications. 

(b)  The alcohol setpoint of the BAIID shall be at 0.05 percent BrAC. 

(c)  The BAIID shall have a warning label affixed to it containing the following language: "Any person tampering with, circumventing, or misusing this Ignition Interlock System shall be subject to prosecution and/or civil liability." 

(d)  The manufacturer's required service interval shall not exceed 67 days.

NJAC 13:19-6.3 Adoption and incorporation by reference NHTSA Model Specification for BAIIDS

NJAC 13:19-6.3 Adoption and incorporation by reference NHTSA Model Specification for BAIIDS

he Chief Administrator hereby adopts and incorporates by reference the NHTSA Model Specifications. 

Amended. R.2005 d.47, effective February 7, 2005, see 36 N.J.R. 4005(a), 37 N.J.R. 505(a). 

https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/baiid-model-specs_2015-07161.pdf

NJAC 13:19-6.2 Definitions

NJAC 13:19-6.2 Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: 

"Alcohol" means ethanol, also known as ethyl alcohol. 

"Alcohol setpoint" means the breath alcohol concentration at which the BAIID is set to lock the ignition. 

"BrAC" means breath alcohol concentration expressed as the percentage of weight over volume (% w/v) based upon grams of alcohol per 210 liters of breath. 

"Breath alcohol ignition interlock device" or "BAIID" means a device designed to allow a vehicle ignition switch to start the engine when the BrAC test result is below the alcohol setpoint, while locking the ignition when the breath test result is at or above the alcohol setpoint, and which at minimum meet the specifications for performance and testing of the NHTSA Model Specifications. 

"Chief Administrator" means the Chief Administrator of the New Jersey Motor Vehicle Commission. 

"Indigent" means participation in any of the following governmental assistance programs: Aid to Families with Dependent Children; Supplemental Security Income; General Assistance; Women, Infants and Children; Pharmaceutical Assistance to the Aged; Medicaid; Food Stamps; Temporary Disability Insurance; or Unemployment Insurance. 

"Manufacturer" means a business engaged in the manufacturing or assembling of BAIIDs. 

"Motor Vehicle Commission" or "Commission" means the New Jersey Motor Vehicle Commission established by section 4 of P.L. 2003, c.13 (N.J.S.A. 39:2A-4). 

"NHTSA Model Specifications" means National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation, Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDs), 57 Fed. Reg. 11772-11787, as amended and supplemented. 

"Optional feature" means any specification that the NHTSA Model Specifications do not specifically require or recommend. 

"Safety feature" means any specification related to insuring that the BAIID will prevent a driver with a BrAC above the alcohol setpoint from driving. 

"Service" means to install, calibrate, maintain, repair, remove, and otherwise perform work on a BAIID to ensure its proper performance. 

"Service center" means a facility where BAIIDS certified under N.J.A.C. 13:19-6.7 are serviced. 

"Tampering" means an overt, conscious attempt to physically disable or otherwise disconnect a BAIID from its power source and thereby allow a person with a BrAC above the setpoint to start the engine. 

"Utility feature" means any specification related to insuring that the BAIID will function reliably and not interfere with driving by operators whose BrAC is below the alcohol setpoint.

NJAC 13:19-6.1 Purpose and scope (a) The purpose of this subchapter is to regulate the installation and use of ignition interlock devices ordered by the court to be installed pursuant to N.J.S.A. 39:4-50.16 et seq

NJAC 13:19-6.1 Purpose and scope

(a)  The purpose of this subchapter is to regulate the installation and use of ignition interlock devices ordered by the court to be installed pursuant to N.J.S.A. 39:4-50.16 et seq. 

(b)  This subchapter establishes procedures and requirements for the certification of breath alcohol ignition interlock devices (BAIIDs) and for the designation of approved BAIID service centers by the Chief Administrator of the Motor Vehicle Commission. 

(c)  This subchapter governs manufacturers and service centers of BAIIDs certified by the Chief Administrator. 

(d)  This subchapter establishes procedures and requirements for the provision of certified BAIIDs at reduced rates to persons who qualify as indigent.

39 :4-50.18 Notification to NJMVC of ignition interlock device installation.

39 :4-50.18 Notification to NJMVC of ignition interlock device installation.

   3. a. The court shall notify the Chief Administrator of the New Jersey Motor Vehicle Commission when a person has been ordered to install an ignition interlock device in a vehicle pursuant to the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).  The commission shall require that the device be installed before restoration of the person's driver's license that has been forfeited pursuant to R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).

   b.   The commission shall imprint a notation on the driver's license stating that the person shall not operate a motor vehicle unless it is equipped with an ignition interlock device and shall enter this requirement in the person's driving record.  The expiration date of the device requirement shall not be imprinted on the license. 

   c.   Notwithstanding the provisions of section 2 of P.L.1999, c.417 (C.39:4-50.17), an ignition interlock device shall be removed on the date the person completes the installation period only if the person submits to the chief administrator a certification from the vendor that:

   (1)   during the final 30 days of the installation period there was not more than one failure to take or pass a test with a blood alcohol concentration of 0.08% or higher unless a re-test conducted within five minutes of the initial test indicates a blood alcohol concentration of less than 0.08%; and

   (2)   the person complied with all required maintenance, repair, calibration, monitoring, and inspection requirements related to the device.

   d.   If the vendor does not issue a certification to the person because there were two or more violations of paragraph (1) of subsection c. of this section, the vendor shall forward the violation information to the chief administrator and the court.  The court shall decide whether to extend the period of ignition interlock device installation for up to 90 days or issue the certification to the chief administrator.

   L.1999, c.417, s.3; amended 2019, c.248, s.5.

39:4-50.17 Sentencing drunk driving offenders; use of ignition interlock device required. 2019

39:4-50.17  Sentencing drunk driving offenders; use of ignition interlock device required. 2019

   2. a. (1) Except as provided in paragraph (2) of this subsection, (a) in sentencing a first offender under subparagraph (i) of paragraph (1) of subsection (a) of R.S.39:4-50, whose blood alcohol concentration was at least 0.08% but less than 0.10%, or who was otherwise under the influence of intoxicating liquor, the court shall order, in addition to any other penalty imposed by that section, the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which shall remain installed for three months.

   (b)   In sentencing a first offender under subparagraph (ii) of paragraph (1) of subsection (a) of R.S.39:4-50 whose blood alcohol concentration was 0.10% or higher, but less than 0.15%, the court shall order, in addition to any other penalty imposed, the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which shall remain installed for not less than seven months or more than one year. 

   (2)   If the first offender's blood alcohol concentration is 0.15% or higher, or the offender violated section 2 of P.L.1981, c.512 (C.39:4-50.4a), the court shall order, in addition to any other penalty imposed under R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, during and following the expiration of the period of license forfeiture imposed under those sections.  In addition to installation during the period of license suspension, the device shall remain installed for not less than nine months or more than 15 months, commencing immediately upon installation of the device and the return of the offender's driver's license pursuant to section 3 of P.L.1999, c.417 (C.39:4-50.18) after the required period of forfeiture has been served.

   b.   In sentencing a second or subsequent offender under R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), the court shall order, in addition to any other penalty imposed by that section, the installation of an ignition interlock device in the motor vehicle principally operated by the offender during and following the expiration of the period of license forfeiture imposed under R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).  In addition to installation during the period of license forfeiture, the device shall remain installed for not less than two years or more than four years, commencing immediately upon installation of the device and the return of the offender's driver's license pursuant to section 3 of P.L.1999, c.417 (C.39:4-50.18) after the required period of forfeiture has been served.

   c.   The court shall require that, for the duration of its order, an offender shall not drive any vehicle other than one in which an ignition interlock device has been installed pursuant to the order.

   The offender shall provide to the court information identifying the motor vehicle on which the ignition interlock is to be installed, and any other information deemed relevant by the court, including, but not limited to, the offender's complete name, address, date of birth, eye color, and gender.  An offender who does not own, lease, or operate a motor vehicle shall attest to this to the court.  A violation of this provision shall constitute perjury pursuant to N.J.S.2C:28-1.  An offender immediately shall notify the court of the purchase, lease, or access to operation of a motor vehicle and install an ignition interlock device in the vehicle. 

   The driver's license of an offender who attests to not owning, leasing, or operating a motor vehicle shall be forfeited for the ignition interlock installation period required pursuant to subsections a. and b. of this section. 

   d.   As used in P.L.1999, c.417 (C.39:4-50.16 et al.), "ignition interlock device" or "device" means a blood alcohol equivalence measuring device which will prevent a motor vehicle from starting if the operator's blood alcohol concentration exceeds a predetermined level when the operator blows into the device.

   e.   The provisions of P.L.1999, c.417 (C.39:4-50.16 et al.) and any amendments and supplements thereto shall be applicable only to violations of R.S.39:4-50 and section 2 of P.L.1981, c.512 (C.39:4-50.4a).

   f.   A person who does not possess a valid driver's license issued by this State at the time of the imposition of a sentence pursuant to this section shall be prohibited from obtaining a driver's license for the duration of that sentence.  Upon obtaining a driver's license, the person shall be sentenced to a period of ignition interlock device installation pursuant to the provisions of this section.

   L.1999, c.417, s.2; amended 2009, c.201, s.2 2019, c.248, s.4.

39 :4-50.4a Refusal to submit to test; penalties. 2019

39 :4-50.4a Refusal to submit to test; penalties. 2019

   2. a. The municipal court shall order any person who, after being arrested for a violation of R.S.39:4-50 or section 1 of P.L.1992, c.189 (C.39:4-50.14), refuses to submit, upon request, to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2)

   (1)   if the refusal was in connection with a first offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State until the person installs an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);

   (2)   if the refusal was in connection with a second offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of not less than one year or more than two years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.);

   (3)   if the refusal was in connection with a third or subsequent offense under this section, to forfeit the right to operate a motor vehicle over the highways of this State for a period of eight years following the installation of an ignition interlock device in one motor vehicle owned, leased, or principally operated by the person, whichever the person most often operates, for the purpose of complying with the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).  A conviction or administrative determination of a violation of a law of a substantially similar nature in another jurisdiction, regardless of whether that jurisdiction is a signatory to the Interstate Driver License Compact pursuant to P.L.1966, c.73 (C.39:5D-1 et seq.), shall constitute a prior conviction under this section.

   The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.  In addition to any other requirements provided by law, a person whose operator's license is revoked for refusing to submit to a test shall be referred to an Intoxicated Driver Resource Center established by subsection (f) of R.S.39:4-50 and shall satisfy the same requirements of the center for refusal to submit to a test as provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2 ) in connection with a first, second, third or subsequent offense under this section that must be satisfied by a person convicted of a commensurate violation of this section, or be subject to the same penalties as such a person for failure to do so. For a first offense, the revocation may be concurrent with or consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50 arising out of the same incident.  For a second or subsequent offense, the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50.  In addition to issuing a revocation, the municipal court shall fine a person convicted under this section, a fine of not less than $300 or more than $500 for a first offense; a fine of not less than $500 or more than $1,000 for a second offense; and a fine of $1,000 for a third or subsequent offense. 

   b.   (Deleted by amendment, P.L.2019, c.248).

   L.1981, c.512, s.2; amended 1981, c.537, s.2; 1994, c.184, s.2; 1997, c.277, s.2; 1999, c.185, s.5; 2004, c.8, s.1; 2007, c.267, s.2; 2009, c.201, s.5; 2019, c.248, s.3.