Top 20 Cases affecting Municipal Court for 2010

by Kenneth Vercammen, Esq.
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Top 20 Cases affecting Municipal Court for 2010

By Kenneth Vercammen, Esq.

1. Breath Test warnings now must be given in Spanish

State v. Marquez 202 NJ 485 (2010)

In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey’s implied consent law, N.J.S.A. 39:4-50.2, and refusal law, N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

2. If not enough breath supplied on Alcotest, officer must read additional warnings

State v. Schmidt

194 NJ Super. 214 (App. Div. 2010)

In this opinion the court held that (1) the police are required to comply with N.J.S.A. 39:4-50.2(e) by reading the standard language concerning the consequences of a refusal to take an Alcotest (part two of the Standard Statement) when a defendant unequivocally agrees to submit to an Alcotest but then fails without reasonable excuse to produce a valid sample and (2) the police have the discretion to discontinue the Alcotest and charge the arrestee with refusal without affording the arrestee the maximum eleven attempts that the Alcotest machine permits.

3. Prior refusal may count for 3rd DWI

State v Ciancaglini

411 NJ Super. 280 (App. Div. 2010) cert granted

In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, this Appellate panel disagrees with the holding of State v. DiSomma 262 N.J. Super. 375 (App. Div. 1993), and hold that the prior refusal conviction does count toward making this a third offense. The court feels this holding is consistent with a line of cases both before and after DiSomma concluding that a prior DWI conviction counts toward enhancement of the sentence imposed for a refusal conviction. See, e.g., State v. Tekel, 281 N.J. Super. 502 (App. Div. 1995). The court also held that double jeopardy does not bar reinstatement of the sentence originally imposed in the municipal court for a third DWI offense, which was reduced in the Law Division to a sentence for a first DWI offense.

4. Discovery expanded for speeding tickets

State v Green __ NJ Super. __ A-6199-08T4 11-09-10

In this case, the court decided that a motorist who has been charged with speeding is entitled to discovery respecting

(1) the speed-measuring device's make, model, and description; (2) the history of the officer's training on that speed-measuring device, where he was trained, and who trained him;

(3) the training manuals for the speed-measuring device and its operating manuals;

(4) the State's training manuals and operating manuals for the speed-measuring device;

(5) the officer's log book of tickets written on the day of defendant's alleged violation;

(6) the repair history of the speed-measuring device used to determine defendant's speed for the past twelve months; and

(7) any engineering and speed studies used to set the speed limit at the section of highway where defendant's speed was measured.

The court also found that the Stalker Lidar speed-measuring device had not been proven to be scientifically reliable and, as such, the results of its operation should not have been admitted during the municipal court proceedings or considered by the Law Division. The court remanded the matter to the Law Division for a plenary hearing on the scientific reliability of the Stalker Lidar. If it is determined to be reliable, then the matter is remanded to the municipal court for trial after the State has provided all of the discovery required by this opinion.

5. School Principal may search vehicle on school grounds.

State v. Best 201 NJ 100 (2010)

A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student’s vehicle parked on school property

6. Error by police dispatcher regarding invalid arrest warrant requires suppression of evidence under NJ Constitution.

State v. Handy

412 NJ Super. 492 (App. Div. 2010)

This appeal required the Court to determine whether evidence found during the search incident to defendant's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable.

The warrant at issue, which was ten years old at the time, had the same birth month, but a different birth day and year. The first name on the warrant was a variant spelling of defendant’s first name. The court concluded that suppression is required and, conseq

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Kenneth Vercammen, Esq.
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