E358 DWI Defendants Entitled to Breath Machine Data. State v Maricic 2. Reminder- New law Revises Eligibility for Expungement of Criminal and Juvenile Delinquency Records. 3. Tax Planning

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E358 Reported Case: DWI Defendants Entitled to Breath Machine Data. State v Maricic

2. Reminder- New law Revises Eligibility for Expungement of Criminal and Juvenile Delinquency Records.

3. Tax Planning Advice is Tax Deductible.

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1 Reported case DWI defendants entitled to breath machine data

State v Maricic ___ NJ Super. __ (App. Div. 2010) A-5247-08T4

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. Although the requested items were not included in either Special Master King's list of fundamental documents that must be produced by the prosecutor in discovery or the list adopted by the Court in State v. Chun, 194 N.J. 54, 145, cert. denied 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), they are nonetheless of unquestionable relevance to a determination of the reliability of the Alcotest machine and procedures utilized.

2 Reminder- New law Revises eligibility for expungement of criminal and juvenile delinquency records

This law makes some changes to the criteria for expungement of

criminal convictions and adjudications of delinquency and also adds to

the list of crimes that may not be expunged.

Expungement of Indictable Offenses Generally Section 1 of the

law reduces the amount of time that must elapse before a person

convicted of an indictable offense is eligible for expungement. Under

current law, subsection a. of N.J.S.2C:52-2 requires a person to wait

10 years from the date of his conviction, payment of fine, satisfactory

completion of probation or parole, or release from incarceration,

whichever is later, before applying to expunge a conviction for an

indictable offense. The law would allow expungement for an

indictable offense although less than 10 years has expired if the court

finds that:

• Less than 10 years has expired from the satisfaction of a fine,

but the 10-year time requirement is otherwise satisfied, and the

court finds that the person substantially complied with any

payment plan ordered by the court, or could not do so due to

compelling circumstances affecting his ability to satisfy the

fine; or

• At least five years has expired from the date of conviction,

payment of fine, satisfactory completion of probation or parole,

or release from incarceration, whichever is later; the person has

not been convicted of a crime, disorderly persons offense, or

petty disorderly persons offense since the time of the

conviction; and the court finds in its discretion that

expungement is in the public interest, giving due consideration

to the nature of the offense, and the applicant’s character and

conduct since conviction.

In determining whether compelling circumstances exist, a court may

consider the amount of the fine or fines imposed, the person’s age at

the time of the offense, the person’s financial condition and other

relevant circumstances regarding the person’s ability to pay.

Expungement of Certain Drug Crimes Section 1 of the law also

allows expungement of certain convictions for the sale or distribution

of a controlled dangerous substance (CDS) or possession thereof with

intent to sell. Expungement would be allowed if the convictions

involve crimes of the third or fourth degree, and the court finds that

expungement is consistent with the public interest, giving due

consideration to the nature of the offense, and the petitioner’s

character and conduct since conviction. Under current law, a person

may not have his conviction for the sale or distribution of a CDS or

possession thereof with intent to sell expunged unless it relates to the

sale, distribution, or possession with intent to sell a small amount of

marijuana or hashish.

Expungement of Delinquency Adjudications Section 2 of the law

changes the criteria for expunging a record of an adjudication of

delinquency. Under current law, to expunge an adjudication of

delinquency, a minimum of five years must elapse after final discharge

of the person from legal custody or supervision or after the entry of

any other court order not involving custody or supervision. Also, the

person must not have been convicted of a crime, or a disorderly or

petty disorderly persons offense, or adjudged a delinquent, or in need

of supervision, during the five years prior to the filing of the petition

for expungement. Section 2 of the law would except periods of post incarceration

supervision pursuant to section 25 of P.L.1982, c.77

(C.2A:4A-44) from these five-year per

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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.

© Kenneth Vercammen, Esq., Kenneth Vercammen & Associates, PC | Attorney Advertising

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