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Court cannot combine DWI motion and trial without defendant's consent

The Supreme Court in State v Gibson today held that a motion to suppress cannot be incorporated as trial testimony unless (1) both parties consent and (2) the court allows wide latitude in cross exam. In this case, the trial court did not formally inquire of the defendant.  Since there was no testitomny taken other than the motion, the court held that a reversal and remand for a new trial did not violate double jeopardy since it merely placed the defense in the position it should have been after the motion facing then trial.  

 Jeff  Gold

Court Finds Blood Warrant Case Is Prospective Only

In State v Adkins, approved for publication, the NJ App Div. today has reversed the Glouc. Co. Law Div. and held that the requirement of McNeely DWI Blood draw warrant is a new rule of law that ought not be applied retroactively to the pipeline of pending cases. I suspect that the Supreme Court will grant certification if petitioned. But what will they do?

Jeff Gold

Court Runs From Its Own Alcotest Order

On 9/18/13 the Supreme Court turned tail and ran from the firmware change part of its own 5 year old Chun order, relieving the state of having to change the firmware at all.  Although dramatic, this changes very little as the State hasn’t changed even the most mundane firmware such as to daylight savings to date, and frankly I doubt they would have ever changed any software unless the decision today forced them to. The court has decided to maintain the status quo minus the firmware revisions, with a minor adjustment for 60 year old women.  

 

Jeff Gold

Court Finds 1 Month Difference In Refusal Form Not Material

9/18/13.  The N.J. Supreme Court released its opinion in State v O'Driscoll. Its a very narrow holding based on the facts of the case that the mistake of an officer in reading the old refusal form statiung 6 months mandfatory suspenion instead of the current 7 months, is not "material" . It did not reach the larger issue that the case was cited for ie the interlock discrepancy or the present refusal form. However it as much as the court announces the standard of materiality, these issues are left for another day.


Jeff Gold

Court Runs From Its Own Alcotest Order

On 9/18/13 the Supreme Court turned tail and ran from the firmware change part of its own 5 year old Chun order, relieving the state of having to change the firmware at all.  Although dramatic, this changes very little as the State hasn’t changed even the most mundane firmware such as to daylight savings to date, and frankly I doubt they would have ever changed any software unless the decision today forced them to. The court has decided to maintain the status quo minus the firmware revisions, with a minor adjustment for 60 year old women.  

 

Jeff Gold

DWI Dismissal for Lack of Speedy Trial Upheld

4/5/13, In State v Cahill, a Speedy Trial case I argued before the Supreme Court, the court just upheld the dismissal of a DWI for failure of the municipal court to list the case for 17 months after downgrade from the county. The Court used the 4 factor test of Barker v Wingo, declining to revamp NJ law on the issue.

Jeff Gold 

Court Ordered Victim Exam

State v Gomez, published today, 4/5/13

“To summarize our conclusions, a trial court may exercise its inherent authority consistent with due process to issue a subpoena or an order for a victim or a witness to attend a non-invasive physical or mental examination. Such a discovery order should be issued rarely, only upon a showing by the defendant of a compelling or substantial need for the examination. Defendant must demonstrate that comparable evidence is not available through another source, and that the benefit to the defendant clearly outweighs the hardship or inconvenience to the victim or the witness. Normally, any punishment for refusal should not fall upon the victim, but consequences can be imposed upon the State. Finally, any such order should include provisions to avoid any expense to the victim and to minimize other monetary loss or inconvenience.” 

Jeff Gold 

DWI Dismissed

2/8/13:  In State v Gibson the court held that a trial court may not incorporate the testimony from a motion to suppress evidence into a trial without the consent of the parties. The result here was the required acquittal of a DWI where no evidence was taken beyond that at the motion to suppress which was heard before trial and not incorporated by consent.
Jeff Gold

State Bar asks high court to invalidate the new refusal form

1-6-13: In my brief, just accepted by the NJ Supreme Court  in the case of State v. O’Driscoll, the NJ State Bar asks the state's high court to invalidate the new current refusal form (promulgated 7/1/12) since it mistakenly informs a subject that the is no mandatory minimum suspension, fine, interlock or IDRC. The whole point of the refusal statute is to make it clear to a defendant that there are harsh and mandatory consequences to a refusal. The failure of the form to accurately convey the consequence of refusing is a fatal flaw, we posit. The current form use of terms like “up to” would lead even a sober subject to conclude that the court has discretion to impose a sentence of no suspension and no fine.

Jeff Gold.

Suspension before new law doesnot make it Ex Post Facto Law

11/19/12: In State v Corrigan, approved for publication, the App Div., held that the fact that a suspension was before the start date of indictable driving while suspended does not make the application ex post facto. 

Jeff Gold

Municipal Diversion Diverted

11/20/12:   The Governor “conditionally vetoed that part of the new Municipal PTI statute that would have imposed exorbitant fees, but indicated he would sign the Bill otherwise. Municipal PTI would be a program for first time offenders allowing them to be diverted from from court to a period of good behavior and then dismissal . The State Bar expressed the same concerns. 

Jeff Gold

Refusal can be (but is not required to be) concurrent to DWI sentence

11/16/12.  The N.J. App. Div. in an unpublished case today, State v Murphy, held that a trial court can sentence a refusal concurrently to a DWI without a guideline 4 plea agreement. The court first held per State v Moran that the additional 90 days suspension issued in this case required analysis of the Moran (agg agg/mit )factors, which was obvious and would not have generated a DWI Update,  but then the court tossed in at the end that consecutive refusal also had to be re-sentenced according to Moran.  Trial courts had differing views on this issue around the state, some viewing that DWI and refusal convictions at trial required consecutive sentences, as opposed to guideline 4 pleas which creates an incentive for a defendant to plead guilty. Other courts had no problem doing concurrent sentences since they would otherwise be burdening the right to trial. 
Jeff Gold

Court Bans Routine Alcotest Room Inspections By Defense

The NJ Appellate Court held today in the published opinions of State v Carrero and State Balsuki, that the State is not required to permit an inspection of
Alcotest rooms without a showing of reasonable cause particular to the facts of the case. The reasoning of these cases is frankly abominable at worse and misguided at best. The Alcotest room is like the scene of a crime. If a defendant was barred from that scene, would it pass constitutional muster? No way. 


Jeff Gold

Prior DWI Still Makes a Subsequent Refusal a Second Offense

In State v Korpita, today, the App Div in an unpublished opinion, upheld the long standing precedent that a prior DWI enhances a subsequent Refusal. Mr. Korpita,  you may recall, was a municipal court judge.  While I believe that the refusal statute has nothing in it to suggest that a DWI should be counted as a prior refusal, I also do not believe that if cert was granted the court would reverse because (1) In Re Bergwall is direct precedent to the contrary (2) a footnote in Ciancaglini differentiates the legislative history of the refusal statute from the DWI statute specifically as it relates to this very issue (which the court anticipated would flow from Ciancaglini) (3) the AOC issued a memo after Ciancaglini cautioning that that case did not hold the inverse (i.e. facts here),and (4) this is a case involving a judge and the court will be hard pressed to rule too favorably in this particular case. 

Jeff Gold

Silence still golden ... even on DWIs in NJ

In State v Stas, The NJ Supreme Court has reversed an Allowing a DWI charge where the lower court had used the silence at scene by the defendant to convict. The defense here was that the co def who admitted operation at the scene (yes Putz J)  was actually not the driver and the Allowing defendant (Stas) was. The Court below found that Stas would have objected at scene if this was true. The Supreme Court disagreed with any use of the defendants silence and reversed. Although not directly at issue, the Court also reaffirmed that Allowing requires proof that defendant knew that the driver was intoxicated. This is important in many cases and its good to have a Supreme Court cite on it.  

Intent to operate is more than mere possibility to operate

In State v Barfuss, unpublished, the appellate div yesterday reversed a guilty plea and conviction for DWI where the defendant only admitted to having the keys in his pocket and that he could have moved the vehicle if he wanted to before the police came, but didn't. The case follows in the line of recent operation cases, mostly unpublished, such as Mize and Putz, calling into question (sui silent) the extent to which the "intent to operate" theory of "operation" i.e. State v Mulcahy, can be used by the State.

Jeff Gold

A Few Thoughts of the New Refusal Form

7/5/12

A few thoughts on the new form. (1) If an officer does not use the new form, then under O'Driscoll, the refusal has to be dismissed. While O'Driscoll has certainly been used lately to toss refusals because the interlock was not part of the language in the old form, that is an expansion of the O'Driscol holding, while not reading the correct form is exactly on point with the
case. Therefore, with the new form being issued is seems clear that only reading it is acceptable. (2) The State has taken this opportunity to add language meant to make clearer that there can be "blowing refusals" (my term not theirs.) In State v Schmidt, the Supreme Court held that a blowin refusal did not require the reading of the additional refusal statement However, factually in Schmidt, the officer advised the defendant that is he
didn't blow properly, he would be charged with refusal. While there was nothing in the prior refusal statements about this, the new form now advises that you will be charged in that case. (3) The statement continues to be at odds with the AIR issued in every case. The statements says that you will be given a copy of the results "upon request" while every AIR printed in the state says at the bottom that a copy is given to the subject. (4) Shouldn't the new form mention (per State v Marquez) that the defendant has the right to fully understand what is being said, i.e. in his native tongue. Now, I get that it will be argued that if the def understands enough to get that advice maybe he doesn't need it, but wouldn't it be better to makes sure ?

Jeff Gold

New Statement Must be Read to All NJ DWI Subjects

7/5/12 new refusal statment required to be read to all NJ DWI subjects.


N.J. ATTORNEY GENERAL’S STANDARD STATEMENT 
FOR MOTOR VEHICLE OPERATORS (N.J.S.A. 39:4-50.2(e))
(revised & effective July 1,  2012)
  
Enter Defendant’s Name ______________________________________

The police officer shall read the following:

1.  You have been arrested for driving while intoxicated. N.J.S.A. 39:4-50.

2. The law requires you to submit samples of your breath for the purpose of testing to determine 
alcohol content.

3.  A record of the taking of the breath samples, including the test results, will be made.  Upon your  request, a copy of that record will be made available to you.  
4. After you have provided samples of your breath for testing, you have the right, at your own  expense, to have a person or physician of your own selection take independent samples of your breath,  blood or urine for independent testing. 

5. If you refuse to provide samples of your breath, you will be issued a separate summons for the  refusal.  A court may find you guilty of both refusal and driving while intoxicated. 

6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license 
revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an  Intoxicated Driver Resource Center.  These penalties may be in addition to penalties imposed by the court  for any other offense of which you are found guilty.

7. You have no legal right to have an attorney, physician or anyone else present for the purpose of  taking the breath samples.  You have no legal right to refuse to give, or delay giving, samples of your  breath.  \

8. Any response from you that is ambiguous or conditional, in any respect, to my request that you  provide breath samples, will be treated as a refusal to submit to breath testing.  Even if you agree to take  the test, but then do not follow my instructions, do not properly perform the test, or do not provide  sufficient breath samples, I will charge you with refusal to submit to breath testing.

9. I repeat, the law requires you to submit samples of your breath for testing.  Will you submit the  samples of your breath?

Answer ________________________

If the arrested person does not respond, or gives any ambiguous or conditional  answer short of an  unequivocal “yes,” the police officer shall read the following.
Your answer is not acceptable.  The law requires that you submit samples of your breath for breath  testing.  If you do not answer, or answer with anything other than “yes,” I will charge you with refusal.   Now, I ask you again, will you submit to breath testing?       

Answer _______________________

Court allows Jail and Suspension on Careless Driving

6/26/12

Today, the App Div. in State v Palma (approved for publication) decided that both the Moran factors and the Criminal Code agg and mitigating factors (State v Henry) apply to a judge's decision to give a suspension and jail on
a 4-97. I would have said that the court required willful conduct under Moran (but what do I know) . Here a def was charged with only careless, no reckless, no DWI or texting or anything. However, the victim was dragged
under the defs SUV and later died. The Co Pros reviewed but no criminal charges arose. The case was remanded for further findings. 

Jeff Gold




NON -DWI defendants might get PTI lite

6/24/12

A bill advances to allow NON -DWI defendants in municipal court cases treatment similar to pretrial intervention in Superior Court. The bill, A-3096, would create a conditional dismissal program, by which eligible participants would be placed on probationary status for a year or longer. Upon successful completion the charge would be dismissed. The main sponsor, Assemblyman Reed Gusciora, D-Mercer, says the bill is designed to cure a fundamental unfairness in the current system, where diversionary treatment is available for indictable crimes but not for minor offenses.

 

Bill to Make Some DWI criminal offenses in NJ Moves Forward

6/5/12

A bill to make some make some DWI into criminal offenses (rather than traffic) moved forward through theNJ Assembly rapidly yesterday. The bill would make 2 dwis within 60 days a fourth degree crime. The bill was generated quickly after a Vineland man was arrested for 5 dwis in weeks in April and May. The State Bar has not had a chance to comment.

Jeff Gold

 

__._,_.___

PROSECUTOR SEEKS VICTIMS IN BRIBERY CASE

6/4/12 FROM NEW JERSEY LAW JOURNAL

"A municipal prosecutor was arrested in a Bayonne courtroom Monday by Hudson County investigators who watched as he allegedly solicited and received a $500 bribe.

Rakesh Desai, 42, is charged with two counts of bribery, a second-degree offense carrying a possible prison sentence of up to 10 years.

Hudson County Prosecutor Edward DeFazio is encouraging others who might have paid bribes to Desai to come forward, under the assurance that "they're not at risk of any charges. They'd be treated as victims."

Desai allegedly promised the man a lower fine in return for $500. The defendant, under the detectives' supervision, delivered the cash to Desai. He was arrested and the money was seized.

Defazio calls the incident "a rogue event," noting, "This is the first time we've had something like this occur. I hope people realize this really is an aberration."

Jeffrey Gold, immediate past chair of the New Jersey State Bar Association's Municipal Practice Committee, says the incident, if true, "cheapens the profession, but there are bad apples."

The municipal court system — where the prosecutors work part time and often interact directly with pro se defendants — can create ethical concerns, Gold says, though the accusations against Desai are "certainly not something I've ever heard of personally."

"We've worked very hard to get much higher standards in municipal courts," says Gold, of Gold & Associates in Cherry Hill."

 

Did County Prosecutor Just Muddy the Refusal Waters?

 

5/31/12.   In a surprising move, it appears that the Monmouth County Prosecutor has recognized that defendants should be advised orally of an additional paragraph #12 in the Standard Refusal statement (which must be read in every DWI case  in the state) as to the interlock penalties. This is a very interesting position. On the one hand, this acknowledges the deficiency in the current MVC approved form (April 2004) yet that is still the only form required to be read by the statute (but doesn’t include reference to the interlock at all). Also note the interlock penalties cited do not seem to jive with the current statute.

The matter is the subject of great debate and litigation around the state.

Is it allowable for counties to modify the form unilaterally?. Are any other
counties doing this?

Jeff Gold

 

Medical Examiner cant testify beyond his expertise

5/4/12.  In State v Locascio, the App Div. today revered a death by auto where the Medical Examiner supplied the crucial testimony as to who (he guessed) was driving.

The Court found that "testimony by such a medical
examiner as to the identity of the driver must be strictly
confined to the areas of that examiner's expertise as to the
nature and causes of bodily injuries. ...Although it was permissible for the medical examiner to testify in certain respects about the physical forces that
caused the boyfriend's fatal injuries, it was improper for him
to render opinions about the probable movements of the occupants
within the car as it decelerated and crashed, including an
analysis of how the passenger's body allegedly "cushioned" the
driver's body during the accident. Because such improper
opinions, admitted over defense counsel's objections, addressed
the crucial disputed issue at the trial, we reverse defendant's
conviction and remand for a new trial."


Jeff Gold

Judges banned from teaching at for profit CLEs

The Court this week has issued a memo prohibiting judges from teaching for the myriad of "for profit" CLEs that have sprung up since MCLE was instituted. However, teaching for non-profit CLEs such as NJ-ICLE is not effected. As such, I am glad to report that "DWI Update", and therefore you, will continue to benefit from the perspective of some of the State's finest jurists. 


Jeff Gold

Municipal Court Trial Certification

The Supreme Court approved a Municipal Court Trial Certification last year and today announced the formation of the requisite Municipal Court Certification Committee which will oversee the application and examination process. 


Joe Rodgers (chairperson) first term expires 12/31/2014  
Jeffrey Gold - first term expires 12/31/2014
Joseph Rem, Jr. - first term expires 12/31/2014
Edward Kologi - first term expires 12/31/2012
Michelle Alcalde - first term expires 12/31/2013
Sharon Moore - first term expires 12/31/2012
Louis Sancinito - first term expires 12/31/2013

without a lawyer- at your own peril

In State v King, decided today, the NJ Supreme Court held that for a trial
court to find that a defendant's waiver of counsel is made "knowingly and
intelligently" , it has the duty inform a defendant of :
(1) the charges to be tried,
(2) the statutory defenses to those charges,
(3) the potential sentencing exposure that accompanies those charges,
(4) the risks defendant faces and the problems he may encounter
(5) a pro se defendant's obligation to follow the applicable rules of
procedure and evidence as would a licensed attorney and that
(6) that in the event of a conviction, he will not be able to seek
post-conviction relief alleging he had been deprived of the effective
assistance of counsel.

Jeff Gold

New Discovery Rules Proposed

Chaired by Justice Long, the Supreme Court Special Committee  on Discovery in Criminal and Quasi-Criminal Matters has just issued its final report. I was honored to be a member of the Special Committee and would like to publically thank Justice Long and all the committee members who worked long and hard to resolve some very difficult issues of discovery in the modern age in both criminal and municipal courts, including several specific references to Alcotest issues in particular:


  • The new rules would formalize that the state is to "provide" discovery, not just allow “inspect and copy”.
  • The list of discovery to be provided is expanded from books, tangible objects, papers or documents obtained from or belonging to the defendant”  to add  “ including, but not limited to, writings, drawings, graphs, charts, photographs, video and sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, into reasonably usable form “
  • The new rules would impose standard fee schedules, for example  $0.05 a letter size page and $0.07 a legal sized one with and CDs and DVDs to be provided at the actual cost of the CD or DVD. These could be modified by the AOC, from time to time, and in special circumstances, a new rule would allow a motion to the court for specific special fees in extraordinary circumstances described.
  • The new rules would formalize the State v Chun requirement that Alcotest digital data be provided in database form (not PDF).
  • The report recognizes that defense attorneys should not be compelled to divulge evidentiary deficiencies in Alcotest cases ( such as a deficiency in production of core foundation documents) to the court or state at discovery conferences or inquiries.
  • The report describes the problems of referring defense to Alcotest document websites, and why the State Police pulled their site down in 2010 in response to the issues brought up by the committee. The commentary clarifies that the committee found the word "provide" sufficient to mean that the State had to actually provide the documents rather than merely refer defense to a website to find the documents themselves.

Jeff Gold

"Possible Drunk" topp off not enough to Stop Car

3/1/12 In an unpublished opinion yesterday, in State v McClay, a case with a rather bizarre procedural history to say the least, the NJ App Div  ruled that a tip from another officer about a “possible drunk” without more detail and without confirmation by observations, was insufficient reasonable suspicion to justify the stop.

 

Jeff Gold

Judge Reprimanded for State Bias

2/28/12. In re the Matter of Gregory McCloskey, decided 2/24/12


Judge who revealed a bias to the State by suggesting questions to the
prosecutor in a DWI cases has been publically reprimanded by the Supreme
Court. Even though the questions could have been asked by the judge himself, the court must remain impartial, and it is not acceptable for a court
to appear to be biased to the State. 

The Court determined that the judge
must be: 

"publicly reprimanded for violating Canon l(a judge should 
maintain high standards of conduct so the integrity and
independence of the judiciary are preserved), Canon 2A (a judge
should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary), 
Canon 3A(6) (a judge shall neither initiate nor consider ex
or other communications concerning a pending or impending
proceeding), Canon 3C(1) (a) (a judge should disqualify himself
from a proceeding in which the judge's impartiality might
reasonably be questioned), of the Code of Judicial Conduct and 
Rule 1:12-1(e) (a judge is disqualified from presiding over any
matter in which the judge "is interested in the event of the
action") and (f) (a judge is disqualified from any action in which
there is any reason "which might preclude a fair and unbiased
hearing and judgment, or which might reasonably lead counsel or
the parties to believe so")"

Enter a Descriptive Title for your New Blog Entry

2/27/12. In State v Sylvia, published last week, the N.J. court rejected a defendant’s argument that territorial jurisdiction wasn’t proved below in a DWI case. The Court made a distinction between 2C (criminal) offenses and DWI in that jurisdiction in a 2C offense  has to be proved as a material element while jurisdiction in a DWI must be found by the court under its 2B by the court. It was a slender distinction indeed , and the court went on to find that the record supported a circumstantial “inference” that jurisdiction was met in this case. Just another "DWI exception" to justice? You decide.


Jeff Gold

Court Rejects State Attempt to Overturn Car Warrant Ruling

2/3/12.  The NJ Supreme Court issued a joint order today in four combined cases that sought to have to court do a back flip on Pena Flores where the Court had previously ruled that the police generally need at least a telephonic warrant to do most car searches. The State alleged that Pena Flores has been too big a burden on law enforcement and has resulted in less detection of criminal conduct. They supported this with New Jersey State Police (NJSP) data.   That the court found was a fatal flaw. The court said it might  reconsider if true statewide data is presented in the future.

I wonder if the court knew of the NJSP memo instructing troopers how to avoid Pena Flores by obtaining more consents? It would explain their lack of confidence in the NJSP data. Well, anyway Pena survives intact despite speculation as to why the court had granted cert on these cases. Now we know.

Jeff Gold

Speedy Trial Issue Going to Supreme Court

1/31/12. The NJ State bar has approved amicus participation in State v Cahill. In Cahill the App Div affirmed a speedy trial dismissal of a DWI after a 16 month period between downgrade and listing. The State requested cert essentially for two reasons, (1) that the def never asserted his right to a speedy trial and showed no actual prejudice and (2) that dismissal goes against, in the State's words, the Court's long held "philosophy" to eradicate DWI from our roads. The Bar is particularly concerned with the implications to judicial impartiality from the later States' point. While we agree that there is a public policy, of course, against DWI, we do not agree that this is part of a Court held "philosophy" that can mitigate a defendant's constitutional right to a speedy trial. Further, there are issues with whether the NJ Constitution requires a defendant to bring himself to trial, whether actual prejudice is necessary in the context of a traffic case, whether AOC dir 1-84 (60 days) can only be used against a defendant but not for a defendant and whether the facts in this case will be much rarer since AOC 4-11 which now requires all traffic to stay with the indictable.

Jeff Gold

 

Reckless Judge Removed

1/20/12.  There have been  several cases recently where Municipal Court judges have been at issue for crossing the line between judge and prosecutor, but the case of a Linden Twp. Judge was no mere weaving over the yellow line. He jumped the line and landed in a ditch on the other side.  In a matter last year, the Linden Twp Judge denied a continuance to get a lawyer, allowed the arresting officer to act on behalf of the State, dotted the State's case with his own questions, then convicted and sent two defendants to jail.  The case was later reversed by the Law Division who called said the judge called to mind the days of back woods frontier hanging judges who despensed "justice" in dictatorial style.  Judical ethics charges were later instituted. (The judge has cited in his defense, calendar concerns for why he moved a case without his prosecutor.)  There were 5 or 6 news articles on the case, but still Linden Twp political support remained firm in its support of its  judge...until Tuesday when the town finally removed the judge in favor of another political appointee.   The judicial ethics proceedings are pending.

Jeff Gold

Warrant Required To Use GPS Tracking

1/23/12.  The U.S. Supreme Court ruled in US v Jones  today  that a warrantless installation and use of a GPS device to track a suspect's vehicle the Fourth Amendment. 

"It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information," ... "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." 

The Fourth Amendment "persons, houses, papers and effects." meant that the vehicle in this case was an "effect."

"Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a 'search' within the original meaning of the Fourth Amendment," 

 "Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred. Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information." 

Jeff Gold

Court directs new Advisement on Immigration Consequences in NJ Mun. Cts.

Blog here.MEMORANDUM
Directive # 09-11

To: Assignment Judges
Presiding Judges-Municipal Courts
Municipal Court Judges
From: Glenn A. Grant
Subj: Informing Municipal Court Defendants of the Immigration
Consequences of Guilty Pleas
Date: December 28, 2011

This Directive promulgates procedures to be followed in the municipal courts
to inform defendants that a guilty plea to or conviction of certain
municipal court offenses may negatively affect their immigration status,
including possibly resulting in deportation. The Supreme Court approved
these procedures on the recommendation of the Conference of Presiding
Judges-Municipal Courts.

In State v. Nunez-Valdez, 200 N.J. 129, 131 (2009), the New Jersey Supreme
Court held that defense counsel, in failing to inform the defendant that
under federal law his conviction would mandate deportation, did not provide
effective assistance to the defendant. Similarly, in Padilla v. Kentucky,
____ U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), the
United States Supreme Court held that the Sixth Amendment requires defense
counsel to provide affirmative, competent advice to a noncitizen defendant
regarding the immigration consequences of a guilty plea.


In 2011, the New Jersey Supreme Court addressed this constitutional
requirement in Superior Court criminal cases; see Directive #05-11
("Criminal Plea Form - Question Regarding the Immigration Consequences of a
Guilty Plea"). Consistent with Nunez-Valdez, Padilla, and Directive #05-11,
this Directive addresses the same concerns in municipal court cases by
requiring municipal court judges (1) to inform defendants that a guilty plea
or a finding of guilt as to certain offenses may result in negative
immigration consequences and (2) to inform defendants that they have a right
to seek advice from an attorney regarding those potential consequences.
Procedures

A municipal court judge shall inform defendants of possible
immigration consequences and of their right to seek counsel on these matters
at three stages of the
court process: (A) as part of the court's opening statement for each court
session; (B) at defendant's first appearance; and (C) as part of the guilty
plea colloquy.


A. Opening Statement
The municipal court judge shall include the following language in the
opening statement for each municipal court session:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. You have a right to
seek advice from an attorney about the effect a guilty plea will have on
your immigration status.

This language will be incorporated into each of the three model opening
statements that the Supreme Court adopted in 2008 - one model opening
statement for sessions handling criminal matters only, one for sessions
handling motor vehicle offenses only, and one for combined sessions.


B. First Appearance

At the first appearance proceeding, any defendant charged with the following
offenses shall be advised of the immigration consequences of a guilty plea:

(1) all disorderly or petty disorderly persons offenses;
(2) driving while intoxicated (N.J.S.A. 39:4-50; N.J.S.A. 39:4-50.14;
N.J.S.A. 39:3-10.13; N.J.S.A. 12:7-46);
(3) operating motor vehicle while in possession of a CDS
(N.J.S.A. 39:4-49.1).

The municipal court judge shall engage in the following colloquy with
defendants charged with the above-listed offenses at first appearance
proceeding:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. Do you understand?

You have a right to seek advice from a
private attorney about the effect a guilty plea or conviction will have on
your immigration status. If you qualify for a court-appointed attorney, you
can speak to the public defender about the immigration consequences of your
plea. Do you understand?

The municipal court judge shall engage in this colloquy during the first
appearance for all defendants charged with any of the above-listed offenses,
regardless of the defendant's name, appearance, or English proficiency.
This requirement is not intended to in any way limit the judge's discretion
to engage in this same colloquy with other defendants who have been charged
with offenses other than those listed above.


C. Guilty Plea

Before accepting a guilty plea to any of the above-listed
offenses, the municipal court judge shall engage in the following colloquy
with the defendant:

(1) Are you a citizen of the United
States?

(If defendant answers "No" to question 1,
defendant must answer questions 2 through 6.)

(2) Do you understand that if you are
not a citizen of the United States, this guilty plea may result in your
removal from the United States and/or may stop you from being able to
legally enter or re-enter the United States?

(3) Do you understand that you have
the right to seek individualized advice from an attorney about the effect
your guilty plea may have on your immigration status?

(4) Have you discussed with an
attorney the potential immigration consequences of your plea?

(If defendant answers "No" to question 4,
defendant should next answer question 5. If defendant answers "Yes" to
question 4, defendant should next answer question 6.)

(5) Would you like the opportunity to
do so?

(6) Having been advised of the possible
immigration consequences and of your right to seek individualized advice on
your immigration consequences, do you still wish to plead guilty?

If during the plea colloquy an indigent defendant seeks the opportunity to
discuss with an attorney the potential immigration consequences of the plea
and the offense charged would result in a consequence of magnitude, the
court should adjourn the proceedings and appoint the municipal public
defender to represent defendant. The municipal court judge is under no
obligation to appoint additional separate counsel for an indigent defendant
to advise defendant on the immigration consequences of a plea.

Additionally, if during the plea colloquy an indigent defendant who is not
charged with an offense that would result in a consequence of magnitude
seeks the opportunity to discuss with an attorney the possible immigration
consequences of the plea, the court should adjourn the matter to give the
defendant the opportunity to do so.

Similarly, if during the plea colloquy a non-indigent defendant seeks the
opportunity to discuss with an attorney the possible immigration
consequences of the plea, whether or not there are possible consequences of
magnitude, the court should adjourn the matter to give the defendant the
opportunity to do so.

Finally, at no point in the proceedings should the municipal court judge
attempt to advise defendants on an individualized basis as to what the
actual immigration consequences of a particular plea might be. Both
Padilla, 130 S. Ct. at 1486, and Nunez-Valdez, 200 N.J. at 131, made it
clear that such individualized advice is the responsibility of counsel, not
the judge. As stated previously, the judge's responsibility is limited to
informing defendants that a plea or a guilty finding may result in negative
immigration consequences and that defendants in that situation have the
right to seek advice from an attorney regarding the potential consequences.

Odor of Alcohol plus admission of one beer held enough for testing

12-22-11. Today  The NJ appellate division decided what most of us have assumed de facto for a long time, namely that it doesn’t take much to justify administration of the Standardized Field Sobriety Tests. Here the defendant had tinted windows and a loud exhaust justifying the stop, but no driving conduct that was indicative of DWI. Then the officer smelled alcohol on defendant (and when don’t they) and the defendant admitted having one beer. That the App Div said today is enough reasonable suspicion to administer the roadside testing.  Although the instruction is much like an arrest because the def is not free to go, the Court found that the instruction was more limited than a full arrest and applied the Terry stop and frisk standard of reasonable suspicion to the case.


Jeff Gold

Court beats back defense challenge to temperature device

12-20-11. The NJ Appellate Division, today in State v Holland and State v Pizzo, beat back a long standing defense challenge to the State's use of a temperature device used to calibrate the Alcotest 7110. The Court held that a Control Company device may be used to substitute for the previously used Ertco Hart device. 


Jeff Gold

Weaving between lanes need not be

12-14-11. In State v Regis today the NJ Supreme Court ruled that weaving (lane change) statute did not require the State to prove that the movements were unsafe. This reversed the lower court which had held the contrary.


Jeff Gold

Anti-hispanic refusal bill taken off Senate agenda

12-8-11.  I was scheduled to testify on behalf of the New Jersey State Bar Association (NJSBA) today in the NJ Senate against the proposed Refusal bill .  I asked that the executive board of the NJSBA take emergent action in opposition to the proposed refusal bill which would trick unawary subjects into refusing and being double penalized therefore.  I am glad to report that we were able to get the NJSBA to  fax a letter in opposition to the Senate yesterday.  Also I was able to bright the matter to the attention of the Hispanic Bar Association of NJ.  Obviously when 85% of all court translations are Spanish to English (AOC stats) such an organization should be on notice of this bill.  They weren’t,  and so had no idea of the emergent issue.  The Hispanic Bar president and its Public Policy committee chair were immediately helpful, and agreed to testify for the Hispanic Bar,  along with me for the NJSBA.  Sometime this morning, after the fax from the NJSBA and after the Hispanic Bar called the Senate to confirm that they would testify, I received a call that the bill was being “held” (taken off agenda for today. ) I have no idea if this was coincidence or not and no idea when it will pop up again, whether in the lame duck session or otherwise.   In any event, my reading of State v Marquez is that the court used a statutory basis for decision only because a full constitutional analysis was not necessary. The legislature already built in a protection against Mirandabased confusion. However, I think it is clear from Marquez,  WidmaierDuffy , and other cases that  some form of notice is constitutionally required to avoid the confusion between the assertion of 5th A rights and a Refusal which requires an unequivocal “yes”.   We can only hope that the legislature will not simply buy into this rushed bill without understanding the consequences to people who (regardless of how guilty they may be of DWI) innocently assert their 5th A rights only to be rewarded with double penalties and being forced to plead guilty because the State now has a refusal charge to hold over them if they want a trial. Moreover, just think how that that injustice multiplies for Hispanics who will still be given Mirandarights in Spanish but then be asked in English to take the breath test without any explanation whatsoever required as to the consequences of asserting those 5th amendment rights , ie that those rights no right to refuse by silence or request and attorney.  

Attorney General's Office admits refusal bill is their own initiative

11/30/11.  Per the New Jersey Law Journal (coming out next week) we will be informed that the refusal bill I mentioned last week (which would remove the requirement that police inform defendants they do not have a right to refuse)  got pushed up in committee … before the State Bar even got a chance to review it… and that in the Attorney General’s words, the bill was its own ”initiative” to defeat defendants who do ” not speak English”.  I leave it to you to decide whether that sounds kosher, but if passed the bill would seem to rob all defendants of the due process right (or at least a fundamental fairness right) to know that refusal by silence or assertion of right to a lawyer is not encompassed within Miranda.  I wonder if this bill’s reasoning isn't like throwing the baby out with the bath water?

Jeff Gold

NJ Assembly wants to catch the unwary!

11/22/11.   NJ assembly bill A3400 which passed the judiciary committee yesterday and now moves on to the Assembly as a whole. It is a bill that answers State v Marquez not by dealing with the language issue but by bypassing the requirement that the notice be read at all. There may not be too much left of the confusion doctrine now, although it survives, but this bill may resurrect it in spades since defendants would be advised of Miranda and not at all as to the lack of a right to refuse a breath test. Once again IMHO there seems to be a rush to change a law that just "ain't broke".  It might be better to say it only has to be read in English that do away with the reading altogether, at least the vast majority of citizens would still be informed that refusing to take a breath test has its own consequences and is not a right like remaining silent. 

NY DWAI Counts as Prior DWI in NJ

Blog here.Today in State v Zeikel, (published) the App Div held once again that a NY driving while impaired counts as a prior (see State v Lawrence App Div 1983) . This time the court had to address the amended NY statute but also came to the conclusion was still "similar" enough to our 4-50 to count. This panel went on to hold that changing sentencing laws was not an ex post facto law or a due process violation. These latter holdings are significant as they would lay the ground work for constitutional muster if the legislature changed the 4-50 statute (post Ciancaglini) to make a refusal count as a prior DWI. The Court also addressed the issue of a defendant's certification, here that the reading was a .06, as alone not enough to sustain his burden of persuasion.

 

Are police being instructed to lie on Alcotest Influence Reports?

Is it "lying" for an officer to purposely enter the wrong arrest time on the Alcohol Influence Report? Is doing this just to get around updating the Alcotest firmware a legitimate exercise? The latest in a series of daylight savings/standard time memos from the New Jersey AG's office instructs the police to put the wrong arrest time on the AIR. This is the crazy way that the State is trying to get around the change in Daylights Savings. The firmware fix is quick and painless but has been avoided for years likely because the State is just too afraid of legal challenged once any change to the firmware in made. 

Daylight savings time still effect Alcotest reliability

Here we are over 3 1/2 years after State v Chun and still I am writing to you about how the 7110s software has not been updated to even change Daylight savings time yet, a change that the manufacturer didn't even have to be ordered to do but would have done in the normal course.  They haven't presumably because the State must just be too worried that any changes to the software might upset the apple cart. Well unless the machines have been updated unbeknownst to me, they will all be reading the wrong time from last Sunday until Nov 6th at 2 am. This causes all kinds of issues in cases. Nevertheless, it appears that we will continue to be doing this "daylights savings gig" for some time. 

Like in the days of the wild west ...

Blog here.

A Linden NJ municipal judge who rejected defendants' request for a public defender,  allowed a police officer to act as prosecutor and also seemed to act as  the prosecutor himself is now facing ethics charges by the Advisory Committee on Judicial Conduct.  Judge Louis DiLeo's "actions transformed the role of the court from a neutral and detached magistrate and evoked the specter of the backwater 'judge, jury and executioner' figure that has never had any place in American jurisprudence," the ACJC said.  "The court's intervention deprived both defendants of their due process rights," the complaint goes on. The defendants won a new trial on appeal to Union County Superior Court. There, Judge Scott Moynihan found the actions of DiLeo were a "perversion of justice" and violated the defendants' constitutional rights.  The ethics complaint charges DiLeo with violating Canons 1, 2A and 3A(1) of the Code of Judicial Conduct. Canon 1 requires judges to observe high standards of conduct so the judiciary's integrity and independence may be preserved. Canon 2A requires judges to respect and comply with the law and act in a manner that promotes public confidence in the judiciary's integrity and impartiality. Canon 3A(1) requires judges to be faithful to the law and maintain professional competence in it.

Former Melrose Actress .268 BAC plus Ativan

In the Somerset County Death by Auto (DWI) trial of former Melrose Place actress Amy Locane the judge denied a defense motion Monday that the def's statements in the ambulance to police were not a "knowing and voluntary" waiver of Miranda ... despite her .268 blood alcohol level and a shot of Ativan given by the EMS to calm her down.  Although the judge found that this was a purely factual question given the def's apparent lucidity, this will be an issue for appeal as the defense in Locane's case put forth unrebutted expert testimony in this case, but the court instead choose to rely on lay testimony that def was not under the influence ... at least to the point of not being able to waive Miranda. 
 
The legal issue reminds one of the Court's recent admonition in State v Marquez that intoxication is not a defense to a knowing and voluntary refusal. The question here may be - does that logic extend to Miranda as well?
 

Not passing the smell test

In State v. Koch, App. Div. defendant Koch was convicted in Municipal Court of underage consumption of alcohol on private property. The judge imposed a $250 fine, and $33 court costs. At a trial de novo in the Law Division, the court found Koch guilty of the same charge and imposed the same sanctions. The appellate panel reverses, concluding that the Law Division judge erred in excluding the videotape of a motor vehicle stop of Koch about an hour and a half after the arresting officer, Patrolman DeWitt, left the scene of a party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. Further, Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about 20 minutes. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence. Therefore, the statement attributed to Koch should have been suppressed for failure to give Miranda warnings.

Hearing required when state destroys evidence

In an unpublished decision issued September 14, 2011,  State v Carlson, the App Div remanded a DWI for a hearing on whether the State's routine destruction of the calibration files when downloading digital data amounted to a Brady violation. The issue was not the routine digital data which it was agreed was supplied.
 
The back story not before this court is that the State claims that a software glitch will prevent proper operation if the calibration files are not deleted and that the paper files are  all the info a def needs anyway. However, Dr Baum testified (in that other matter) that one of the things destroyed in the process is the tolerance employed, certainly a critical fact which is now routinely destroyed by the NJSP.
 
The case stands for the proposition that an evidentiary hearing must be held to determine whether the destruction amounts to a Brady violation. 

Speed trial notice required on trial de novo

The August 26, 2011, publication of State v Miserella,  the App Div confirms that delay in a trial de novo must be analyzed under the Barker v Wingo factors, but the Court then swats the defense down but good by holding against the defendant for not filing a request for a speedy trial de novo ( that's a new one on me) and for being perfectly content to sit out the long delay in this case while there was  a stay of the DWI suspension in the meantime. (I don't mean to be jaded here but ... isn't it a slippery slope when you start making the defendant responsible for the Court's and State's jobs? Well anyway this would seem a good case for a petition for certification IMHO.)