E359 1Plea to indictable offense barred DWI prosecution based on double jeopardy State v Hand 2 Mun Court not bound by another court Order that DWI conviction could not be used for enhanced penalty

by Kenneth Vercammen, Esq.
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1. Plea to indictable offense barred DWI prosecution based on double jeopardy State v Hand

2 Mun Court not bound by another court Order that DWI conviction could not be used for enhanced penalty State v Enright

3. Federal Estate Tax increased to Estates over $5,000,000, but New Jersey taxes estates over $675,000

4. NJ Estate Tax Law

5. Raritan Valley Road Runners RVRR Winter Party & Banquet February 5th, 2011

1. 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 municipal court judge denied defendant's motion to dismiss the DWI and reckless driving charges on double jeopardy grounds. On appeal de novo to the Law Division, Judge Kryan Connor, citing the "same evidence" test, found defendant's prosecution for DWI and reckless driving was barred. He vacated the guilty pleas and dismissed the charges.

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.

2 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.

3.Federal Estate Tax increased to Estates over $5,000,000, but New Jersey taxes estates over $675,000.

After a one-year hiatus, the estate tax is reinstated for 2011 and 2012, with a top rate of 35%. The exemption amount will be $5 million per individual in 2011 and will be indexed to inflation in 2012. Estates of people who died in 2010 can choose to follow either the rules in effect for 2010 or 2011.

The Act sets a $5 million generation-skipping transfer tax exemption and zero percent rate for the 2010 year.

Portability of the unused estate tax exemption permits the executor of a deceased spouse’s estate to transfer any unused exemption to the surviving spouse without such planning. This provision is effective for estates of decedents dying after December 31, 2010.

Reunification of the estate and gift taxes. This provision is effective for gifts made after December 31, 2010. Thus, the gift tax exemption will increase to $5 million per person for 2011 and 2012.

Key tax credits for working families that were enacted or expanded in the American Recovery and Reinvestment Act of 2009 will be retained. Specifically, the new law extends the $1,000 child tax credit and maintains its expanded refundability for two years, extends rules expanding the earned income credit for larger families and married couples, and extends the higher education tax credit (the American Opportunity tax credit) and its partial refundability for two years.

Businesses can write off 100% of their equipment and machinery purchases, effective for property placed in service after September 8, 2010 and through December 31, 2011. For property placed in service in 2012, the new law provides for 50% additional first-year depreciation.

Extending for two years (through 2011) the provision that permits tax-free distributions to charity from an Individual Retirement Account (IRA) of up to $100,000 per taxpayer, per taxable year. The Act allows individuals to make charitable transfers during January of 2011 and treat them as if made during 2010.

Many of the “traditional” tax extenders are extended for two years, retroactively to 2010 and through the end of 2011. Among many others, the extended provisions include the election to take an itemized deduction for state and local general sales taxes in lieu of the itemized deduction for state and local income taxes; the $250 above-the-line deduction for certain expenses of elementary and seco

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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