Drug and DWI Law NJ

Sunday, June 19, 2016

39:4-50.2 Refusal to Take Breath Test

Kenneth Vercammens Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
39:4-50.2.
Consent to taking of samples of breath; record of test; independent test; prohibition of use of force; informing accused (a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of R.S. 39:4-50.
(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.
(e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. The police officer shall, however, inform the person arrested of the consequences of refusing to submit to such test in accordance with section 2 of this amendatory and supplementary act. A standard statement, prepared by the director, shall be read by the police officer to the person under arrest.
L.1966, c. 142, s. 2. Amended by L.1977, c. 29, s. 3; L.1981, c. 512, s. 1, eff. Jan. 12, 1982. 39:4-50.3. Method of analyses; approval of techniques; certification of analysts; reports; forms Chemical analyses of the arrested persons breath, to be considered valid under the provisions of this act, shall have been performed according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General. The Attorney General is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to make certifications of such individuals, which certifications shall be subject to termination or revocation at the discretion of the Attorney General. The Attorney General shall prescribe a uniform form for reports of such chemical analysis of breath to be used by law enforcement officers and others acting in accordance with the provisions of this act. Such forms shall be sequentially numbered. Each chief of police, in the case of forms distributed to law enforcement officers and others in his municipality, or the other officer, board, or official having charge or control of the police department where there is no chief, and the Director of the Division of Motor Vehicles and the Superintendent of State Police, in the case of such forms distributed to law enforcement officers and other personnel in their divisions, shall be responsible for the furnishing and proper disposition of such uniform forms. Each such responsible party shall prepare or cause to be prepared such records and reports relating to such uniform forms and their disposition in such manner and at such times as the Attorney General shall prescribe.
L.1966, c. 142, s. 3. Amended by L.1971, c. 273, s. 1.
39:4-50.4a. Revocation for refusal to submit to breath test; penalties 2. a. Except as provided in subsection b. of this section, the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of R.S.39:4-50, shall refuse to submit to a test provided for in section 2 of P.L.1966, c.142 (C.39:4-50.2) when requested to do so, for six months unless the refusal was in connection with a second offense under this section, in which case the revocation period shall be for two years or unless the refusal was in connection with a third or subsequent offense under this section in which case the revocation shall be for ten years. 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 operators 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. The revocation shall be independent of any revocation imposed by virtue of a conviction under the provisions of R.S.39:4-50. In addition to issuing a revocation, except as provided in subsection b. of this section, the municipal court shall fine a person convicted under this section, a fine of not less than $250.00 nor more than $500.00.
b.The fine imposed upon the convicted person shall be not less than $500 or more than $1,000 and the period of license suspension shall be one year for a first offense, four years for a second offense and 20 years for a third or subsequent offense, which period shall commence upon the completion of any prison sentence imposed upon that person when a violation of this section occurs while:
(1) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;
(2) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or
(3) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.
A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1997, c.101 (C.2C:35-7) may be used in a prosecution under paragraph (1) of this subsection.
It shall not be relevant to the imposition of sentence pursuant to paragraph (1) or (2) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be relevant to the imposition of sentence that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session. more info at http://www.njlaws.com/refusal_of_breathalyzer.htm

Tuesday, June 07, 2016

Seminar: Remove & Expungement of Criminal Arrests and Convictions- Free Seminar June 8, 2016 from 5:00pm-5:45

Location: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

COST: Free if you pre-register. Complimentary materials provided. This program is limited to 15 people. Please bring a canned food donation, which will be given to the Community Food Bank. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

(Author- Criminal Law Forms by the American Bar Association)

The NJ statute on expungement was revised effective April 18, 2016. If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed or received a Conditional Discharge Under NJ Law past criminal arrests and convictions can be expunged/ erased under certain instances. This program will discuss the expungement process. I served as a Municipal Prosecutor and was amazed how minor criminal guilty pleas and even dismissed charges can affect someone’s ability to get a job or advance a career. Do you have children or someone you know or work with that needs an expungement?

To attend email VercammenLaw@Njlaws.com

Can’t attend? We can email you materials

Send email to VercammenLaw@Njlaws.com

http://www.njlaws.com/expungment-seminar.htm

More info: The Petition for expungement is filed in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal case is finished. For someone who had a drug charge, they can hire an attorney apply for Expungement 6 months after the Conditional Discharge is complete. The statute requires detailed notices served by the attorney on the State Police, Attorney General and numerous other government entities.

Typical Court costs and Legal fees for expungement range from $1,500-$2,500.

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

Sunday, April 10, 2016

sample DISCOVERY SCHEDULE- [Discovery List: DWI Alcotest 7110 Cases] from seminar Handling Drug, DWI and serious municipal court cases

ALCOTEST

The following items are requested by defendant and defendant's expert if an Alcotest machine was used. Since my client does not have ready access to the internet, we request hard copy of documents, not a website link:

I. Documents explicitly set forth in the Order accompanying State v. Chun (following each item is a reference to which section of the Order provides for that item):

1. "All Dräeger Certificates of Accuracy" for the Alcotest(r) used to test Defendant's breath [3(C)(5)]

2. "Certification of Analysis" for the .10% simulator solution lot used during the Defendant's breath tests [6(B)(3)]

3. "Calibration Record" for the last calibration (must be within the last six months) of the Alcotest(r) used to test Defendant's breath, prior to the test [3(C)(6)]

4. "Certification of Analysis" for the .10% simulator solution lot identified on the "Calibration Record" document [3(C)(7)]

5. "Certificate of Accuracy" for the CU-34 identified on the "Calibration Record" document [3(C)(10)]

6. If the "Calibration Record" has a "Black Key Temperature Probe" identified by serial number, then we need the "Certificate of Accuracy" for it [3(C)(11)]

7. "Part I - Control Tests" from the last calibration [3(C)(6)]

8. "Certification of Analysis" for the .10% simulator solution lot identified on the "Part I - Control Tests" document [3(C)(7)]

9. "Certificate of Accuracy" for the CU-34 identified on the "Part I - Control Tests" document [3(C)(10)]

10. "Part II - Linearity Tests" from the last calibration [3(C)(6)]

11. "Certification of Analysis" for the .04% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)]

12. "Certification of Analysis" for the .08% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)]

13. "Certification of Analysis" for the .16% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)]

14. "Certificate of Accuracy" for the CU-34 using .04% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)]

15. "Certificate of Accuracy" for the CU-34 using .08% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)]

16. "Certificate of Accuracy" for the CU-34 using .16% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)]

17. "Ertco-Hart (or other NIST traceable thermometer) Report of Calibration" [3(C)(12)]

18. "New Standard Solution Report" from the simulator solution change performed immediately after the last calibration [3(C)(9)]

19. "New Standard Solution Report" from the last simulator solution change performed on the Alcotest(r) used to test defendant's breath, prior to the test [3(C)(1)]

20. "Certification of Analysis" for the .10% simulator solution lot identified on the "New Standard Solution Report" [3(C)(2)]

21. "Certificate of Accuracy" for the CU-34 identified on the "New Standard Solution Report" [3(C)(3)]

22. All Alcotest(r) Certification Cards for any officials named on either the "Alcohol Influence Report", the "Calibration Record / Control Tests / Linearity Tests", or the "New Standard Solution Reports." [3(C)(1); 3(C)(6); 6(A); 6(B)(1)]

II. Documents the Supreme Court did not specifically state in the Chun Order, but which are inferred by the Order and are requested and are customarily provided without objection by the State:

23. "Alcohol Influence Report" (A.I.R. AIR)

24. "Certificate of Accuracy" for the CU-34 calibrating unit used during the Defendant's breath tests

25. "Certification of Analysis" for the .10% simulator solution lot identified on the "New Standard Solution Report" (see #18 from Part I)

26. "Certificate of Accuracy" for the CU-34 identified on the "New Standard Solution Report" (see #18 from Part I)

27. "Certificate of Accuracy" for the "Temperature Probe," identified by serial number, for each "New Standard Solution Report" (see #18-21 from Part I)

III. Documents the Supreme Court did not specifically state but are requested and which are requested by our experts:

28. At least one, but preferably five redacted A.I.R.s immediately preceding that of the Defendant.

29. All available Alcotest(r) Data Downloads from the Alcotest(r) on which the Defendant was tested. These were performed yearly or after approximately 500 tests, whichever came first, prior to State v Chun. They are now performed every six months or after approximately 500 tests, whichever comes first.

30. Verification of the date in which the Alcotest(r) used to test the Defendant's breath was first placed into service.

31. Date of fuel cell (EC) replacement, if any.

32. Complete service and repair record from the Department and Dräger for the Alcotest(r) instrument used to test the Defendant's breath.

Drug and DWI Law NJ

Sunday, June 19, 2016

39:4-50.2 Refusal to Take Breath Test

39:4-50.2 Refusal to Take Breath Test

Tuesday, June 07, 2016

Seminar: Remove & Expungement of Criminal Arrests and Convictions- Free Seminar June 8, 2016 from 5:00pm-5:45

Sunday, April 10, 2016

sample DISCOVERY SCHEDULE- [Discovery List: DWI Alcotest 7110 Cases] from seminar Handling Drug, DWI and serious municipal court cases

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