Major Cases in DRUG, DWI AND SERIOUS TRAFFIC CASES- PowerPoint May 23

1. Breath Test warnings now must be given in Spanish State v. Marquez 202 NJ 485 (2010) (A-35-09) 7/12/10

In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

2. If not enough breath supplied on Alcotest, officer must read additional warnings State v. Schmidt 194 NJ Super. 214 (App. Div. 2010)

In this opinion the court hold that (1) the police are required to comply with N.J.S.A. 39:4-50.2(e) by reading the standard language concerning the consequences of a refusal to take an Alcotest

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(part two of the Standard Statement) when a defendant unequivocally agrees to submit to an Alcotest but then fails without reasonable excuse to produce a valid sample and (2) the police have the discretion to discontinue the Alcotest and charge the arrestee with refusal without affording the arrestee the maximum eleven attempts that the Alcotest machine permits.

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3. Prior refusal to take breath test does not count for 3rd DWI State v. Ciancaglini 204 NJ 597(2011)

Defendant Ciancaglini’s conviction in 2006 for refusing to take a breathalyzer test does not constitute a prior conviction for purposes of determining her sentence for driving while intoxicated in 2008.

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4. Discovery expanded for speeding tickets

State v Green 417 NJ Super. 190 (App. Div. 2010) In this case, the court decided that a motorist who has been charged with

speeding is entitled to discovery respecting (1) the speed-measuring device's make, model, and description; (2) the history of the officer's training on that speed-measuring device, where he was trained, and who trained him; (3) the training manuals for the speed-measuring device and its operating manuals; (4) the State's training manuals and operating manuals for the speed-measuring device; (5) the officer's logbook of tickets written on the day of defendant's alleged violation; (6) the repair history of the speed-measuring device used to determine defendant's speed for the past twelve months; and (7) any engineering and speed studies used to set the speed limit at the section of highway where defendant's speed was measured.

The court also found that the Stalker Lidar speed-measuring device had not been proven to be scientifically reliable and, as such, the results of its operation should not have been admitted during the municipal court proceedings or considered by the Law Division. The court remanded the matter to the Law Division for a plenary hearing on the scientific reliability of the Stalker Lidar. If it is determined to be reliable, then the matter is remanded to the municipal court for trial after the State has provided all of the discovery required by this opinion.

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5 School Principal can search vehicle on school grounds. State v. Best 201 NJ 100 (2010)

A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student’s vehicle parked on school property6. Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Handy (A-108-09)

The dispatcher’s conduct – advising an officer on the scene that there was an outstanding warrant when the warrant contained a differently spelled name and a different date of birth – was objectively unreasonable and violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Evidence uncovered during the search incident to the arrest must be suppressed.

7 Passengers can be ordered out if belief of danger. State v. Mai 202 NJ 12 (2010) The officers presented sufficient facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to exit the car. Those same circumstances authorize a police officer to open a vehicle door as part of ordering a passenger to exit. Thus, the seizure of the weapon was proper under the plain view doctrine, and the seizure of the holster and loaded magazine from

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the passenger was lawful as the fruits of a proper search incident to an arrest.

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8. No Warrantless Search of Truck Sleeper Compartment based on smell of weed. State v. Pompa 414 NJ Super. 219 (App. Div. 2010)

Following his conviction of various drug offenses, defendant appealed the denial of his motion to suppress in excess of thirty pounds of marijuana seized by police without a warrant from a closet in the sleeper cabin of defendant's tractor trailer.

The court held that the closely regulated business exception permitted a warrantless administrative inspection of certain areas of the tractor-trailer, but concluded that the search turned unlawful when it progressed into unregulated areas without the exigent circumstances required by State v. Pena-Flores, 198 N.J. 6, 28 (2009).

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9. Police cannot search home without warrant. State v. Jefferson 413 NJ Super. 344 (App. Div. 2010) (1) In the absence of a warrant or a recognized exception from the Fourth Amendment's warrant requirement, the police could not lawfully enter defendant's home to conduct a Terry type detention and investigation of defendant.(2) A police officer's wedging herself in the doorway to prevent defendant from closing his front door was entry into the home.(3) The police failed to show either "hot pursuit" exigent circumstances or a community caretaking exception from the warrant requirement.(4) Although the police entry was unlawful, defendant had no right to resist physically, and the search of his person incident to arrest was lawful.(5) Consent to search defendant's apartment, given by defendant's wife, was tainted by the unconstitutional police conduct and was not shown to be voluntary.10. Judge Can Suspend DL for Traffic Offense. State v. Moran 202 NJ 311 (2010)

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The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges11. Defense counsel must advise criminal of deportation consequences. Padilla v. Kentucky 130 S. Ct. 1473 (2010)Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug-distribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice The US Supreme Court held because counsel must inform a client whether his plea carries a risk of deportation, Padilla has

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sufficiently alleged that his counsel was constitutionally deficient.12 Defendant must invoke right to remain silent.Berghuis v. Thompkins 130 S. Ct. 2250 (2010) Defendant Thompkins' silence during the interrogation did not invoke his right to remain silent. A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U.S. 452, 459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither.

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13. OPRA limits copy fees to actual costs Smith   v. Hudson County 411NJ Super 538 (App. Div.2010)

Plaintiffs asserted in these three lawsuits that defendants have overcharged them, and other members of the public, for the copying of government records maintained at County offices, in violation of N.J.S.A. 47:1A-5(b) within the Open Public Records Act ("OPRA"), and the common law. The Appellate Division reversed the trial courts’ orders dismissing plaintiffs' complaints.

The court construed N.J.S.A. 47:1A-5(b) to require that, unless and until the Legislature amends OPRA to specify otherwise, or some other statute or regulation applies, the Counties must charge no more than the reasonably-approximated "actual costs" of copying such records. The burden of proving or disproving compliance with that "actual cost" mandate will vary, depending upon whether the charges in question exceed certain fee levels identified in the second sentence of N.J.S.A. 47:1A-5(b). Because of the likely budgetary and administrative impacts of our holding, we make this decision prospective, effective at the outset of the next fiscal year, and deny plaintiffs retroactive relief.

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14. DWI defendants entitled to Alcotest machine data

State v Maricic 417 NJ Super. 280 (App. Div. 2010) In this DWI matter, the Court held

that defendant has the right to discover downloaded Alcotest results from the subject instrument from the date of last calibration to the date of defendant's breath test and any repair logs or written documentation relating to repairs of the subject Alcotest machine, without a showing of prior knowledge of flawed procedures or equipment.

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15. Plea to indictable offense barred DWI prosecution based on double jeopardy State v Hand 416 NJ Super. 622 (App. Div. 2010) In this appeal by the State, the Court determined whether a guilty plea to fourth-degree creating a risk of widespread injury or death, N.J.S.A. 2C:17-2(c), precluded defendant's subsequent prosecution for driving under the influence (DWI), N.J.S.A. 39:4-50. The Court affirmed, rejecting the State's argument that the "same evidence" test set forth in State v. De Luca, 108 N.J. 98, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987), should not apply to guilty pleas but should instead apply to the actual evidence to be presented at trial. Because defendant's operation of his motor vehicle under the influence of alcohol was the reckless act upon which the indictment was based and also because the State required defendant, as part of his plea to the indictment, to admit that he operated his motor vehicle under the influence of alcohol, his subsequent prosecution for DWI was barred on double jeopardy grounds

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16. Mun Court not bound by another Court Order that DWI conviction could not be used for enhanced penalty State v Enright 416 NJ Super. 391 (App. Div 2010)

After defendant's conviction and sentence in the municipal court as a third-time DWI offender, he obtained a post-conviction order from a different municipal court in which his second DWI conviction had occurred confirming that conviction but directing that no court could use it to enhance his sentence on a subsequent DWI conviction. The Court held that the municipal court order was an erroneous application of State v. Laurick, 120 N.J. 1, and that on de novo review of the third DWI conviction, the Law Division correctly declined to follow the municipal court's order.

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17 Police Could Not Lift Up Shirt for Terry Frisk. State v. Privott 203 NJ 16 (2010)

Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop and to frisk defendant Privott. However, the officer’s conduct in lifting defendant’s shirt exceeded the scope of a reasonable intrusion that is permitted as part of a Terry stop.

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18. Abandoned Bag Permits Search. State v. Carvajal 202 NJ 214 (2010)

The State satisfied its burden of proving by a preponderance of the evidence that the duffel bag was abandoned. Carvajal denied having any ownership or possessory interest in the bag, and the police attempted to identify other potential owners. Carvajal therefore had no standing to challenge the warrantless search of the bag.

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19. Car search requires exigent circumstances; Telephonic search warrants approved State v. Pena-Flores 198 NJ 6 (2009)

The Supreme Court affirms its longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. Whether exigent circumstances exist is to be decided on a case-by-case basis with the focus on police safety and the preservation of evidence. The Court also determines that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant and does not require proof of exigent circumstances.

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20. Once impounded, the police were required to obtain a warrant before searching the vehicle. State v Minitee 415 NJ Super. 475 (App. Div. 2010)

In these back-to-back appeals concerning the warrantless search of a motor vehicle, the court held that the exigent circumstances that existed at the scene only permitted the police to seize the vehicle. Under our State's Constitution, once impounded, the police were required to obtain a warrant before searching the vehicle.

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21. Expert can testify to lab report if they watched & supervised lab testState v Rehmann __ NJ Super. __A-3291-09T3

In seeking to prove defendant's blood alcohol content in this DWI prosecution, the State called an expert to testify about the results of a laboratory test performed on defendant's blood sample by another technician. In considering defendant's argument that the failure to produce the other technician violated the rights guaranteed him by the Confrontation Clause of the Sixth Amendment, the court held that in such circumstances the State must call a witness who has made an independent determination as to the results offered. The court concluded that a surrogate witness knowing nothing but what is stated in another's report will not satisfy a defendant's confrontation rights but nevertheless affirmed and found that the State called an appropriate witness because the witness supervised the testing process and signed the laboratory certificate.  4-29-11

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22 Motion to suppress granted when police did not obtain telephonic search warrant for car. State v Shannon __ NJ Super. __ (App. Div. 2011) A-2549-08T4 The court reversed defendant's conviction of possession of cocaine, finding his motion to suppress the cocaine found in a warrant-less search of his Jeep should have been granted. The search was not incident to arrest, did not occur late at night, the stop was in a residential area, and four Asbury Park Police Officers were at the scene with defendant, who was alone. The court found no exigency existed pursuant to State v. Pena-Flores 198 N.J. 6 (2009). 02-03-11

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23 If defendant had prior CD, can’t get PTI. State v O'Brien __ NJ Super. __ (App. Div. 2011) A-4190-09T2

The question presented is whether a defendant who previously received supervisory treatment under the conditional discharge statute, N.J.S.A. 2C:36A-1, and who later applied for and obtained an order vacating the conditional discharge, may thereafter be admitted into PTI. The court answer the question in the negative, concluding that N.J.S.A. 2C:43-12g and Rule 3:28, Guideline 3(g) prohibit any person previously placed into supervisory treatment under the conditional discharge statute from subsequent admission into PTI, whether the conditional discharge is later vacated or not. 2-10-11

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24 Police should not destroy initial notesState v. W.B. __ NJ__(A-80-09) April 27, 2011

After producing their final reports, law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime. Our criminal discovery rules provide for discovery of all statements of witnesses and police reports that are “in the possession, custody and control of the prosecutor.” Rule 3:13-3 encompasses the writings of any police officer under the prosecutor’s supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor’s office for discovery purposes. Implementation of this retention and disclosure requirement is deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case

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25 Hearings ordered to determine reliability of different thermometer used to test alcotestState v HollandA-4384-09T3

In appeals from DWI convictions, the court held that Alcotest results are not per se inadmissible simply because the device has been calibrated with a Control Company temperature probe instead of the Ertco-Hart thermometer validated by the Supreme Court in State v. Chun. Because the record in these matters, however, is insufficient to support a finding that the digital thermometer used was substantially similar to the Ertco-Hart device, the court remand to the Law Division for a consolidated hearing to determine the reliability of the Control Company probe, including whether differences between the two had any impact at all on the accuracy of the ultimate results. 04-05-11

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____ Ignition interlock device required- over.15, 2nd, 3rd , refusals

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Recent Changes in Municipal Court LawMajor Cases in DRUG, DWI AND SERIOUS TRAFFIC CASESKenneth Vercammen, Esq.2053 Woodbridge Ave.Edison, NJ 08817 PowerPoint available: Email VercammenLaw@Njlaws.comMay 23, 2011

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