New Jersey Traffic and Criminal Law

N.J. Court Further Limits Search of Automobile

In back-to-back appeals, a New Jersey Court further limited police officers' ability to search automobiles in a August 16 published decision.  Known as the "automobile exception", in certain limited instances, police can search motor vehicles for contraband, weapons, illegal drugs and evidence without a warrant.

As a general rule, police officers can only search an automobile, whether operated or parked, when the stop was unexpected, when the police have good reason to believe the car contains evidence of a crime and when there are exigent circumstances.  Usually, exigency exits when there is a risk that evidence will be lost, destroyed or improperly disposed of-- in other words, when the suspects or their accomplices might remove or ditch the evidence.

The August 16 decision involved a motor vehicle that had been taken into custody by impoundment, after one armed robbery suspect had fled of foot, another suspect was arrested on outstanding warrants and yet another was detained for questioning.

The key to understanding this case is to underscore two facts.  That is, the suspects were out of the vehicle, either gone or detained, and the police had secured and impounded the suspect vehicle.  So, no exigency existed.

The Appellate Division ruled that the police clearly had the time and the opportunity to get a warrant, whether by telephonic or traditional means.

 

 

Refusal Warnings Must be Given in Language Spoken or Understood by Motorist

The New Jersey Supreme Court ruled today that motorists arrested for DWI have the right to be informed of their obligation to submit a breath sample in a language understood by them, before they may be charged with Refusal.

"Refusal" refers to a motor vehicle charge based on one's unwillingness or refusal to provide a breath sample, which is analyzed in New Jersey by the Alcotest.  By law, all motorists who operate in the state are deemed to have given "implied consent" to measure the alcohol in their blood under N.J.S.A. 39: 4-50.2.

 Often referred to as the "standard statement" or paragraph 36, each individual charged with DWI must be informed of their obligation and the consequences for refusing by having an 11-point or paragraph warning read to them, usually by the arresting officer.  As one might expect, this document, which was last revised in April, 2004, is prepared in english.

In State of New Jersey v. German Marquez, the defendant did not speak or understand english, only spanish as his surname suggests.  Furthermore, the police officer who read the warning and advisory had no reason to believe that the accused understood english either. 

The Supreme Court wrote: "In essence, reading the standard statement to motorists in a language they do not speak is akin to not reading the statement at all. The latter scenario renders a conviction defective." 

Accordingly, the Court ordered the New Jersey Motor Vehicle Commission to prepare means of accommodating the language needs of all New Jersey motorists. 

Although this decision may have carved out a significant defense to Refusal for certain non-english-speaking defendants, the Supreme Court ruled that the burden to show that one did not speak or understand english rested with the accused.

Narrow exception to law prohibiting under-aged drinking

Yesterday, Governor Corzine signed into law an amendment to the statute that prohibits underage drinking.  While the amendment serves a noble public policy objective, the new law will probably have limited practicality.

N.J.S.A. 2C:33-15 generally prohibits either the consumption or possession of alcoholic beverages by a person under the age of 21.  The limited exceptions to the law against possession and consumption may, for example, include a beer at Thanksgiving under parental supervision or a thimble of wine during Communion.

Otherwise, getting caught with alcoholic beverages when under the age of 21 may result in a Disorderly Persons conviction and a six month loss of driving privileges, if the offense occurs in a motor vehicle.

The new law now provides for immunity to underage persons who call 9-1-1 and report that another underage person is in need of medical assistance due to alcohol consumption.  The immunity applies to those acting in concert, as long as the under-aged person is the first to call 9-1-1.  And the under-aged caller must remain on the scene and cooperate with the police and emergency personnel.

So, if you want to be the Good Samaritan when someone needs medical assistance after drinking alcohol, please remember the following: a.) check to make sure they are under 21 years old; b.) make sure that it is alcohol that is causing the medical emergency; c.) that no one over 21 years has already called 9-1-1; d.) that you call 9-1-1, instead of a local police number, for example; and e.) that you remain on scene and cooperate.

In all seriousness, be responsible and be safe.  Avoid gatherings and parties where alcoholic beverages are being served to under-aged persons.  If for no other reason, then because you might get the narrow exceptions wrong!

 

Arrested for being near an illegal drug?

    Suppose you and a couple of your friends were stopped by the police for a minor traffic violation, and suppose further that there were a couple of "roaches" in the the center console ash tray.  Could the police arrest you as a backseat passenger, even though you were not close to the marijuana?  And might the charge be successfully prosecuted?

    The answer is "yes" to the first question and "maybe" to the second.  It is not uncommon for a prosecutor to dismiss drug charges against occupants of a motor vehicle when two circumstances arise: somebody in the vehicle says "the weed (or whatever) is mine" and the controlled dangerous substance (CDS) was found in a common area, like the floor or ash tray.

    But sometimes everyone denies knowing anything, and so the state relies on a concept called "constructive possession".  According to N.J.S.A. 2C:35-10(a), the drug possession statute, "[i]t is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance . . . ."

    Think of these two examples to distinguish "actual" verses "constructive" possession.  Someone actually possesses the belt around their waste or the ring on their finger.  Somewhat differently, each of the people sitting at a restaurant table constructively possesses the salt and pepper shakers, even though none might be actually using or touching the shakers.

    Here is the legal definition taken from a criminal jury charge for constructive possession:

    Constructive possession means possession in which the person does not physically have the property, but though not physically on one's person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.

    A person who, although not in actual possession, has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.

    So, you need not actually have the drug in your hand or your pocket in order to be charged and found guilty of possession of illegal drugs.

 

Supreme Court to decide crucial case regarding 'no point' violations

     The New Jersey Supreme Court will be hearing arguments today involving the infamous "unsafe driving" statute, often used in municipal court as a plea bargain to original charges like speeding, stop sign violations and red-light rolling.

    The unsafe driving statute, N.J.S.A. 39:4-97.2, provides that an operator of a motor vehicle can plead or be found guilty of the offense and not be assessed motor vehicle commission (MVC) points in the State of New Jersey.  However, this ONLY applies to the first or second conviction or plea.

    In State v. Patel, decided by the Appellate Division last year, the Court ruled that a third conviction, regardless of the amount of time between the second and third offense dates, resulted in the assessment of 4 MVC points. 

    Despite last October's ruling in Patel, the language of the law strongly suggests that a driver should be allowed to take advantage of the no point provision if five years have transpired since the second guilty plea.

    The defendant in Patel argues that the New Jersey Legislature intended to provide relief from motor vehicle penalty points on third offenses following a five year period from the second unsafe driving offense.

    The decision will be published on this blog as soon as it becomes available.

    

Urine samples: DWI defendants have no legal obligation to submit

    The more I study, defend and prosecute DWI cases, or most criminal cases for that matter, the more I realize that the accused unwittingly helps the police build a case against them.  A case in point is a defendant that willing submits a urine specimen for testing.

    In New Jersey, a driver suspected of being under the influence or drunk usually is asked to provide a sample of urine after the Alco-test or breathalyzer registers a low or zero blood alcohol level.  The arresting officer is usually thinking that drugs, whether legal or illegal, are contributing to behavior that is suggestive of impairment.

    Nine out of ten times, the accused usually says, "sure, you can test my urine".  And so, that person is just giving the police another tool or-- more appropriately --a rope to hang them in court.

    Unlike the Alco-test or breathalyzer, where a driver has given his or her consent ("implied consent"), an accused can just refuse.  So, I am a bit baffled when I read a lab report for a particular defendant and it lists every illegal substance known to man.  Of course, it is ignorance, maybe the drugs themselves or maybe even the police suggesting that it must be submitted. 

    Who knows, but one thing is certain: the law does not require anyone to submit urine, unlike breath samples.

How to plead to a traffic ticket

       This might seem very obvious to any lawyer, but many people ask, "how should I plead?" to the traffic ticket they just received.  The answer is "Not Guilty".

       You always want to plead "not guilty" even if you believe that you are, in fact, guilty of the offense with which you are charged.  This entry of "not guilty" allows you to attend court, speak with the prosecutor and maybe have your charge reduced to a lesser offense, one with no or fewer points.

       On the back of your ticket, complaint or summons, you will find the court's name and telephone number.  Many routine traffic tickets do not require a court appearance and so you must call five to seven days in advance of the court date in order to be placed on the court docket.  This allows you to appear in front of the judge and have your case heard.

       Although each municipal court is somewhat different, most will allow you to plea bargain a traffic ticket on your first appearance without the presence of the police officer.  Usually, if it cannot be worked out during this first appearance, then the matter is listed a second time for trial.

       If you are trying to extend the date at which you are to appear, call on the very last day allowed according to the instructions on the back of the ticket or simply ask the court staff for a postponement. 

        Most court dates can be extended once, unless it is a driving while intoxicated (DWI) charge.  DWI tickets are typically fast-tracked so that they may be concluded within 60 days.

      

Police officers training as certified phlebotomists for DWI crash cases

       On October 31st of 2008, I posted an entry about the difficulties of the prosecution of proving DWI cases involving blood draws--  that is, where the blood alcohol content (BAC) is measured by blood analysis in the New Jersey State Police Laboratory.  In those cases, the nurse at the hospital and the chemist must be available for cross-examination by the defendant.

       Of course, the chemists are state employees working in a civilian capacity, but also work for a division of the state police.  So, when the prosecutor asks that they appear in court to testify, they usually appear unless they have a conflict with another court.

       But the nurses are generally ignoring subpoenas to testify.  My guess is that they are not being compensated by their hospital employer, they work crazy hours, have families and just want their days off-- like all of us. 

       Some judges are suppressing the BAC results, which may be tantamount to a dismissal, but other judges are taking a hard-line approach and threatening to issue arrest warrants for the nurses to appear in court.

       In the mean time, the police and county prosecutor's office, at least in Gloucester County, New Jersey, are implementing a new program.  A hand-full of police officers are being trained as certified phlebotomists.  These officers will be on-call to respond to emergency rooms where DWI defendants are being treated.

       This program is in it's infancy stage, but is sure to raise an assortment of legal issues.

DWI on sleeping pills; it can happen

       The New Jersey "driving while intoxicated" (DWI) statute lists more than just alcohol as a substance that can lead to a guilty finding.  However, the state will have a greater challenge in prosecuting cases involving those elements other than alcohol.

       Specifically, the code reads, "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug" is in violation of the law.  Alcoholic beverages, narcotics and hallucinogenic drugs seem relatively straightforward-- or least they seem to be for the court.

       But operating under the influence of a "habit-producing drug" presents challenges for the state to prove.  If, for example, a driver was arrested for DWI after weaving down the road, failing the balance tests and stating that he or she had taken sleeping pills, a conviction might not result--especially if a defendant were to exercise his or her right not to incriminate by talking.

       So, could the prosecutor prove that the sleeping medication was habit-forming?  The chances are certainly reduced and, therefore, a conviction would be more difficult. 

       These cases where an operator is charged for driving under the influence (of non-narcotic) drugs are, however, becoming more and more frequent.

Hair testing for drug use becoming the 'Gold Standard'

       It is no secret these days that traditional drug testing-- by the courts, police, employers and schools --is fairly ineffective.  The standard test for illegal drugs usually consists of urinalysis or a "piss test," as some like to call it.

       The urine test is ineffective for two reasons: one, it is subject to tampering; and two, the rate of secretion or elimination of drugs is rapid.  Synthetic opiates (Percocets), natural opiates (Heroin), and cocaine typically disappear in the urine within 72 hours and marijuana usually sticks around for 28-30 days.

       But the secret is out of the bag.  And so, innovative science has stepped up.  The new, seemingly foolproof test is now the hair test.  Companies like Omega Laboratories are offering hair testing to employers and the courts.

       So, fake bladders filled with "clean" urine and a fresh battery pack to (get this) warm the urine to body temperature won't work any longer.  These hair tests appear to be immune to adulteration and fraud and can capture much longer periods of time to determine illegal drug use.

       Expect to see this type of test as the court's "gold standard" in the future.