New Jersey Traffic and Criminal Law

Concealment is enough for Shoplifting conviction

       Shoplifting is one of the few disorderly persons offenses that need not be completed for a judge to find someone guilty.  In other words, an attempt or a concealment of merchandise (without taking the item out of the store) is enough for a conviction.

       A "disorderly persons" offense is a New Jersey legal classification for a quasi-criminal charge that is heard in municipal court.  Examples include possession of marijuana, simple assault and trespassing-- in other words, charges that are not real serious.  

       A portion of the New Jersey statute on shoplifting finds liability where an actor purposely conceals merchandise with the intention of stealing.  So, a person that hides, let's say, a pack of batteries in a pocket or pocketbook can be detained and arrested for shoplifting.

       In a recent case, a trial judge ruled that an individual can be found guilty of shoplifting, even after that person had changed their mind and ditched the merchandise before leaving the store. 

A possible exception to the GDL "no plea bargain" rule

       Back in October of this year, the N.J. Attorney General sent a directive to all municipal prosecutors stating that anyone driving under the GDL (Graduated Driver's License) program would not be entitled to plea bargains for moving violations.  In other words, if a "Cinderella" operator were charged with speeding or another traffic violation, then the case would go to trial or there would be a guilty plea.

       Seems pretty clear, but an issue has arisen.  What happens when an operator is a graduated driver, but is no longer under 18 years of age?  Theoretically, a GDL driver could have gotten a late start and still not have a full privilege license when they turn 19 and even older.

       Arguably, the rationale for the "no plea rule", as explained by the Governor's Teen Driving Study Commission (which led to the AG's directive), was to monitor and protect teens.  So, there is merit in the position that adults (meaning someone over 18 years of age) should not be subject to the rule, even though they are graduated drivers.

       As is often the case, different courts are interpreting the rule differently.  Some judges are finding that adults can receive the benefits of plea bargaining and others are finding just the opposite. 

Court interprets 'weaving' for DWI stop

       An arrest for drunk driving almost always is preceeded by a motor vehicle violation such as speeding, weaving in a lane or running a red light.  And, of course, the police officer must have a good reason to execute a motor vehicle stop.

       In a decision last week, the Law Division interpreted the statute that accounts for numerous DWI arrests: N.J.S.A. 39:4-88(b), or failure to maintain a lane.  The statute reads, "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety."

      In State v. Woodruff, the court kind-a, sort-a defined the circumstances under which one could be stopped or pulled over for weaving in a lane.  The court found that a vehicle need not perfectly maintain a lane and that there are times where an operator can legally weave or swerve in a roadway.

       For instance, an operator may legally deviate from the lane where there is an obstruction in the roadway, the road is narrow and the vehicle large or where it is extremely windy.  The court said: "one or two deviations from a lane may or may not constitute a violation, depending on the circumstances."

       So, it is conceivable that the defendant can challenge a motor vehicle stop and the resulting DWI arrest, if the weaving was minor and explained by fact-sensitive circumstances.  However, the defendant's attorney must contend with the low standard of "reasonable and articulable suspicion" for the stop.

       That is, can it be disproved that the officer had a good reason for the stop?  For the most part, that is difficult to prove, but not impossible.

      

 

What to say, or what not to say, when a cop pulls you over

       I am sure everyone is familiar with the standard question, "do you know why I pulled you over?".  That, of course, comes from the police officer that may or may not know exactly what motor vehicle law you might have violated.

       You see, as a parent of an eleven-year old kid, I am pretty darn certain of what household rule he broke or of what misdeed he may have perpetrated before I confront him, but I am not always 100 percent certain.  So, I let him help in my inquiry for justice and the truth by seeing if he will admit to the suspected wrongdoing.

     Likewise, police officers like to seal their case against you by an admission.  In other words, he or she wants to hear you say:  I ran the red light or I am sorry I made an illegal U-turn or I should not have been driving carelessly.  Whatever, as long as there is an admission to bolster the case against you. 

       So, anyone pulled over and hoping to avoid a traffic ticket or trouble, just like my kid, is faced with the "cruel dilemma":  lie and perhaps face greater wrath from the authority or just "tell the truth".  Unlike my child, though, the Constitution says that you don't have to say anything at all.

      

Court upholds right of school officials to search student vehicles

       For high school students, beware of what you carry in your car once you roll onto school grounds.  In a case decided yesterday, the Appellate Division upheld the right of teachers and administrators to search a student's vehicle based on "reasonable suspicion." 

       In State v. Best, the court concluded that "the privacy interests of students are outweighed by the substantial interest of teachers and administrators in maintaining a drug-free environment in the classroom and on school grounds".

       Usually, the search of an automobile must be accompanied by probable cause.  My favorite definition of probable cause is found in "Ballentine's Law Dictionary: Legal Assistant Edition and is defined as: "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true".

       "Reasonable suspicion", on the other hand, is more than just a hunch.  It is a belief supported by articulated facts, but does not quite rise to the level of "probable cause". 

       In Best, the student appeared to the school nurse to be "high" from some type of controlled dangerous substance.  That combined with a report from another student led to a search of his locker and vehicle.  Ultimately, the student was charged with possession of CDS and distribution.

Howell, Brick, Newark and East Brunswick to implement camera enforcement

       On October 9, I outlined New Jersey's pilot program where certain roadway intersections would be monitored by camera for traffic violations.  Specifically, motorists would be issued tickets for failure to observe a traffic signal or N.J.S.A. 39:4-81.

       New Jersey recently released the municipalities where the pilot would be implemented.  They include Howell Township, Brick Township, East Brunswick and Newark.

       Some observers argue that the State and municipalities are pushing for the implementation in order to raise even more money by issuing a greater number tickets for moving violations.

       Of interest to me, I know that these cameras will one day be evidentiary in far more serious breaches of public safety and peace, like perhaps identifying a "get-away" car in an armed robbery or piecing together the puzzle of child abduction case.

With court monitored alcohol rehab, certain criminal charges may be dismissed

       Several years ago, I watched a young man enter the courtroom accompanied by sheriff's officers and donning leg shackles.  He stood before the judge on a particular charge, probably a disorderly conduct offense of some type.

     Wearing the standard prison jump suit and being closely guarded by the officers, he explained his unlawful conduct.  "Judge," he said, "every time I drink alcohol, I have an allergic reaction and 'break out' in this bright orange suit."  For those of us who have never spent a night incarcerated, bright orange suits are customarily used by jails to easily identify inmates.

       Although he was not the most eloquent or articulate fellow, he made a good point-- one that the New Jersey Legislature recognizes as legitimate.  And, that is, alcohol and alcohol abuse often lead to serious legal problems.  It can make otherwise decent people behave poorly.

       In New Jersey, a person charged with a minor offense (like assault or disorderly conduct, for example) can have their charge dismissed under the New Jersey Alcohol Treatment and Rehabilitation Act or ATRA under certain circumstances.

       For the sake of simplicity, the accused must admit that he or she has an alcohol problem, seek counselling and treatment from a qualified professional and follow all recommendations of that professional. 

        For those who really don't care to rehabilitate, this can be a burdensome undertaking.  But for those who truly desire to treat their problems, it is a great way to "kill two birds with one stone".

DWI cases with blood draws pose challenges to Prosecutors

       Usually, when someone is arrested for drunk driving, the prosecutor and the state rely upon a chemical breath test, like the Alcotest, to prove intoxication.  There are, however, some circumstances when the police must depend on a blood test to establish the defendant's blood alcohol content (B.A.C.).

       For example, if the police respond to an automobile crash where the operator/accused is injured, even if those injuries are not real serious, then that person is usually taken to the local emergency room under police custody.  And this is where the state's case against the operator for DWI becomes increasingly complicated and sometimes difficult to prove.

       If the defendant's attorney demands and places the state on notice, the prosecutor must establish the chain of custody and the defendant has the right to confront (at trial) anyone who "touched" the blood evidence.  At a minimum, those include the police officer, the nurse, the evidence officer and the state police chemist.

       Under the Confrontation Clause, a defendant has the right to cross examine or question anyone who accuses them of violating the law.  Essentially, the chemist who analyzes the blood and establishes a certain B.A.C. is "accusing" that person.

       And the nurse must also testify that he or she followed certain medical protocols in drawing the blood, mostly to establish that alcohol swabs were not used to prep the skin, which some would argue increases the chance of an elevated B.A.C. reading.

       The problem in prosecuting these cases is this:  it is harder to get four people to show in court at the same time then it is for one police officer who happens to be the arresting officer and the breath test operator.  While all of the individuals except the nurse are state employees, every link in the chain must perform or the entire chain (and the case) fails.

       State employees and police officers almost always appear in court; however, the nurse is a different story.  Emergency rooms are busy places, hospitals typically do not pay their nurses to attend court and "days off" are highly valued.

      

Superior Court affirms no plea bargains for DWIs

       With very few exceptions, plea bargains are permitted in municipal court.  The one big exception, drunk driving and driving under the influence, was recently affirmed in State v. Rastogi, decided by the Law Division yesterday. 

       According to New Jersey Plea Agreement Guidelines, "[n]o plea agreements whatsoever will be allowed in drunken driving or certain drugs offenses.  Those offenses are: [a.] Driving while under the influence of liquor or drugs (N.J.S.A. 39:4-50)".  These guidelines apply to plea agreements in municipal court.

       The Superior Court in State v. Rastogi, however, broadened the prohibition of DWI plea bargains to include county prosecutors and their assistants. These types of traffic cases typically do not appear in Superior Court, unless they are accompanied by a more serious charge.  The garden variety case would be a DWI stop where the defendant happens to possess cocaine, an indictable offense.

       The Rastogi court rationalized that the strong public policy stance regarding drunk driving should apply to county prosecutors as well.  So, while murder, rape and armed robbery charges will continue to be "plea bargain-able" (if there is such a word), driving while under the influence cases must go to trial unless there is a guilt plea.

     Download state_v. Rastogi.pdf

Statements to police at accident scene may be suppressed

       Let's say you are involved in a crash and it is your fault.  The police officer arrives, interviews witnesses and those involved in the accident, and you happen to say, "I didn't notice the stop sign, sorry, my fault."  Can you be found guilty by that statement alone?

       The answer is generally "yes," because statements or admissions of defendants are admissible in court, unlike other out-of-court statements.  The police officer would normally testify that you, the operator, admitted to disregarding the stop sign.  There could, however, be a valid objection from an attorney defending the charge and a possible finding of "not guilty."

       Before explaining the exception and how a "not guilty" finding could result, two things are presumed--  first, that the police officer didn't actually see the violation with his own eyes and second, that no other witnesses appear in court.  Witnesses ignore notices to testify all the time (because who wants to sit around all day and miss a day of work?).

       In a fairly obscure part of New Jersey's motor vehicle violation statute, the following language is found: "but no report or any part thereof or statement contained therein shall be admissible in evidence for any other purpose in any proceeding or action arising out of the accident" (emphasis added).

     This language is found in the section of the code that addresses a person's obligation to report accidents.  And some judges have held that statements made to a police officer who is preparing an accident report are protected.  The public policy rationale is that the truth will be revealed if statements are not later used in court to convict or punish a driver.

       It is the lawyer's job to argue that such statements were made for the purpose of preparing the accident report and for no other reason, because any other reason would preclude the use of this  evidentiary exception.