In this Issue: Municipal Court Practice

Transcription

1 In this Issue: Municipal Court Practice FEATURES Conditions on Admitting an Alcotest Reading: State v. Chun and the Case Law Interpreting It 5 by Jeffrey Evan Gold The Alcotest and State v. Chun Post-Conviction Relief Top 25 Cases in Municipal Court Deportation and Shoplifting Convictions Cell Phones and Pedestrians Also in this issue Lawyers Bookshelf Law Office Management Legal Creativity Seeing Double: Representing a New York Driver in a New Jersey DWI Case 16 by James B. Seplowitz Collateral Consequences: The Potential for Deportation and Exclusion as a Result of a Municipal Court Shoplifting Conviction 19 by John E. Hogan and Amy B. Herbold Post-Conviction Relief in the Municipal Courts Why is it Important? 23 by Christopher Baxter Technical Note: Examining Downloadable Digital Data Logs 28 by Samuel L. Sachs Legislating Human Behavior: Cell Phones and Pedestrians 30 by Angela Foster Top 25 Cases Affecting Municipal Court Practice 34 by Kenneth Vercammen The Alcotest and State v. Chun 39 by John Menzel DEPARTMENTS PRESIDENT S PERSPECTIVE 2 MESSAGE FROM THE SPECIAL EDITORS 3 LEGAL CREATIVITY: Municipal Court by John J. Novak LAW OFFICE MANAGEMENT: Make or Break Your New Office with Marketing Due Diligence 50 by Ed Miller LAWYERS BOOKSHELF 52

2 PRESIDENT S PERSPECTIVE RICHARD H. STEEN Municipal Court Practice Garners Court Attention As a result of action on two unrelated matters, the attention of the Supreme Court of New Jersey has shifted to the municipal courts. First, the Court has published for comments a recommendation to establish a program for the certification of municipal court attorneys. Second, the Court considered recommendations from bar organizations that favored a tightening of rules governing direct solicitation of clients. The Court approved one innocuous rule change, but the issue appears far from closed. Our interest in municipal court certification began in 2007, when the New Jersey State Bar Association urged the Supreme Court to begin the certification of municipal court attorneys, arguing that the unique nature, and increasing complexity, of municipal court practice justified certification. In a letter to the Court, the NJSBA noted that municipal court practice is substantially different than superior court criminal court practice Our citizens would be better served knowing which municipal court attorneys are more experienced and skilled in handling municipal court matters. The push for certification was endorsed by the state bar s Municipal Court Practice Section and Criminal Law Section, and the Municipal Court Prosecutors Association. In its recent report to the Supreme Court, the Board on Attorney Certification (BAC) concluded that it makes most sense that municipal court law, which has the greatest potential for connection with the unwary and unsophisticated legal consumer, would be the most advantageous choice to add as a specialty designation to the Court s certification program. Although the NJSBA supports the concept of certification, the report of the BAC is filled with eligibility, reporting and educational requirements that need to be examined thoroughly. The NJSBA Board of Trustees will take this matter up at its early December meeting, and awaits recommendations from the Municipal Court Practice Section and other interested parties. The solicitation of clients by direct mail is an issue that attracts both fervent critics and supporters. For many lawyers that specialize in municipal court practice and auto negligence cases, this type of solicitation is a vital means to discovering new clients. But, solicitation letters and advertisements have become anathema to many persons who receive them soon after being ticketed or being involved in an accident. In 2009, the NJSBA recommended to the Supreme Court that the 30-day restriction on solicitation following mass disaster events, contained in R.P.C. 7.3, be extended to all municipal court and criminal matters. In a letter to Administrative Office of the Courts Director Glenn Grant, the NJSBA concluded that targeted mail solicitation in municipal court is a substantial problem and a gross invasion of defendant s privacy. It has resulted in public outrage and disgust for the legal profession. The Court, however, declined to extend the rule in the manner suggested. Instead, the Court amended the rule to require that solicitation letters contain the word ADVERTISEMENT on the outside of the envelope. It must be noted that mail solicitation has been according a substantial amount of First Amendment protection by the United States Supreme Court in Shapero v. Kentucky Bar Association 1 and related opinions. States may not ban all targeted mailings; however, restrictions on such mailings may be imposed if they advance a substantial governmental interest in a manner less restrictive than on outright ban. With this latter point in mind I will be appointing a committee to take another look at the direct solicitation issue and ask that it report on whether a constitutionally sound rule amendment be crafted and sent to our Supreme Court. Endnote U.S. 466 (1988). 2 NEW JERSEY LAWYER December 2010

3 MESSAGE FROM THE SPECIAL EDITORS STAFF Angela C. Scheck Publisher Cheryl Baisden Managing Editor Janet Gallo Paula Portner Graphic Designer Display Advertising EDITORIAL BOARD James J. Ferrelli Michael F. Schaff Marilyn K. Askin Mitchell H. Cobert John C. Connell Linda S. Ershow-Levenberg Angela Foster Susan R. Kaplan Brian R. Lehrer Robert Olejar Steven M. Richman Susan Storch Susan Stryker Chair Vice Chair NJSBA EXECUTIVE COMMITTEE Richard H. Steen President Susan A. Feeney President-Elect Kevin P. McCann First Vice President Ralph J. Lamparello Second Vice President Paris P. Eliades Treasurer Miles S. Winder III Secretary Allen A. Etish Immediate Past President New Jersey Lawyer Magazine (ISSN ) is published six times per year. Permit number Subscription is included in dues to members of the New Jersey State Bar Association ($10.50); those ineligible for NJSBA membership may subscribe at $60 per year. There is a charge of $2.50 per copy for providing copies of individual articles Published by the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey Periodicals postage paid at New Brunswick, New Jersey and at additional mailing offices. POSTMASTER: Send address changes to New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey Copyright 2010 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey New Jersey Lawyer invites contributions of articles or other items. Views and opinions expressed herein are not to be taken as official expressions of the New Jersey State Bar Association unless so stated. Publication of any articles herein does not necessarily imply endorsement in any way of the views expressed. Printed in U.S.A. Official Headquarters: New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey Advertising Display New Jersey s municipal courts are courts of limited jurisdiction, yet over six million cases are docketed there each year. New Jersey s 531 municipal courts are statutorily responsible for resolving disorderly and petty disorderly persons offenses, traffic summonses, and municipal ordinance violations. These courts are often the only window to our system of justice that the vast majority of our citizenry will ever encounter. It has been over a decade since New Jersey Lawyer Magazine published an edition devoted to municipal court practice. In that time, there have been myriad changes in both substantive and procedural law, including the enactment of the Unsafe Operation Statute, 1 which was intended to enhance plea bargaining options; the Clark decision, 2 which substantially curbed the ability of part-time municipal prosecutors to engage in criminal defense work; and similarly, State v. McCabe, 3 which held that part-time municipal court judges must recuse themselves in cases where the attorney (or law firm) for the party appearing before the court has an active matter adverse to the judge in his or her private practice. Additionally, there have been substantial variations to search and seizure law over the years, which have had a profound impact on the thousands of warrantless search cases that arise each year in our municipal court. For example, in State v. Pena-Flores 4 the Supreme Court confirmed the applicability of the warrant requirement during automobile searches. Perhaps there has been no single more profound change in the municipal courts over the past few years than the advent of ANGELA FOSTER JOHN E. HOGAN New Jersey s new breath-testing device the Alcotest 7110 which was approved for use by the New Jersey Supreme Court on March 17, 2008, in State v. Chun. 5 While many in the legal community presumed that Chun might be the last word on driving while intoxicated defenses, new and complex evidential issues have spawned from this seminal case. While drunk driving cases do not account for the majority of actions in our municipal courts, the practical consequences of these offenses, which, inter alia, can lead to loss of driving privileges of up to 20 years and non-discretionary jail sentences of 180 days, necessarily result in a commitment of substantial resources to both prosecute and defend. Due to the profound impact the Alcotest has had on our municipal courts, included in this edition are several articles focused exclusively on Chun s progeny. Perhaps it was the timing of this edition or the zeal of the attorney authors to expound on this topic, but we are thrilled by the contributions in this area. Not to be overshadowed by the daunting impact of the Alcotest, we have included diverse articles that will no doubt stimulate debate and engage our readers. For example, few of us are not in some way impacted by the driving while texting debate. Others will be surprised to learn that NEW JERSEY LAWYER December

4 there are very real immigration consequences flowing from municipal court dispositions. In these pages you will find useful practical information for both the novice and the experienced municipal court practitioner. You will also find an imaginative and satirical view of what our municipal courts might look like 20 years hence. No matter your level of experience with New Jersey municipal courts, you will find these pages practical, informative and insightful. We anticipate that many may gain a newfound respect for the nuances of the law and the unavoidable politics of these tremendously efficient courts. We thank our contributing authors for their tremendous work, and dedicate this edition to the countless municipal court staff, judges, prosecutors and defense attorneys who in no small way contribute each day to a civilized society. Endnotes 1. N.J.S.A. 39: N.J. 201 (2000) N.J. 34 (2010) N.J. 6 (2009) N.J. 54 (2008). Angela Foster, a member of the editorial board of New Jersey Lawyer Magazine, is a patent attorney of the Law Office of Angela Foster, located in North Brunswick, specializing in prosecuting, counseling and licensing intellectual property. She is also legislative coordinator for the Middlesex County Bar Association and past municipal public defender for the township of Piscataway. John E. Hogan is a shareholder at Wilentz, Goldman & Spitzer P.A. in Woodbridge. He is a member of the firm s criminal defense/civil rights department and appellate practice group. He practices in all areas of criminal defense, various administrative matters and general litigation. 4 NEW JERSEY LAWYER December 2010

5 Conditions on Admitting an Alcotest Reading State v. Chun and the Case Law Interpreting It by Jeffrey Evan Gold On St. Patrick s Day 2008, the New Jersey Supreme Court issued its opinion in State v. Chun, et al, 1 drawing to a close over six years of litigation regarding whether the Draeger Alcotest 7110 MKIII-C breathtesting device using software version NJ 3.11 was reliable for any evidential use in New Jersey courts. The Court upheld most, but not all, of the findings and conclusions of its special master, the Hon. Michael Patrick King, P.J.A.D. ret., who had presided over remand proceedings in the matter for approximately two years. The Court found the Alcotest was reliable, but only on very extensive and specific conditions. These conditions have been the subject of continued litigation in the trial courts, and are now making their way up the appellate ladder. This article will review Chun in detail and the case law since it was decided, as well as provide some history and a few back stories to round out the picture. The Alcotest B.C. (Before Chun) The Alcotest s odyssey in New Jersey began much earlier than Chun. The New Jersey State Police first decided upon the Alcotest as the likely replacement for the archaic Breathalyzer in Although used since the 1950s, the Breathalyzer was long since eclipsed by more modern devices. Still, the state languished in its actual adoption of the new technology. Finally, in December 2001, the state began the initial pilot program for testing in one town, Pennsauken Township, Camden County. The Pennsauken pilot cases began an initial two years of litigation in the superior court, Law Division, Camden County, which resulted in the published opinion State v. Foley. 2 In Foley, Assignment Judge Francis J. Orlando found the Alcotest using software version NJ 3.8 (not NJ 3.11 used by the time of Chun) reliable subject to a condition in certain blowing refusal cases (cases where the defendant attempts to blow, but the machine does not accept the blows as sufficient). The Pennsauken data showed a very high rate of blowing refusals. Judge Orlando held that a defendant could not be charged with a refusal if he or she blew at least.5 liter of air into the Alcotest, which had been programmed to require 1.5 liters. Even though the Attorney General s Office was integrally involved in Foley, the state inexplicably chose not to appeal Judge Orlando s decision. That left the state with no appellatelevel decision on the Alcotest s reliability, a position not much better then when they started Foley two years earlier. Statewide Implementation... Without a Reliability Finding After changing the firmware in the Alcotest from NJ 3.8 to NJ 3.11, and the instructions given to subjects on blowing into the machine, the state began a statewide implementation of the Alcotest. However, without an appellate-level decision finding the Alcotest reliable, there was certain to be more litigation, and there was. The first county to use the new machine was Middlesex County in February Like Foley, which had begun with the state seeking consolidation of 20 or so municipal court cases for a hearing in the superior court, Chun began with a consolidation motion. There would be another two-and-a-half years of twists and turns, including 18 weeks of hearings by a Supreme Court special master, two special master s reports, five rounds of briefs to the Supreme Court and two rounds of oral arguments before the Court. During that time, driving while intoxicated (DWI) cases were being prosecuted in the municipal courts with Alcotest readings, but with (at least first offense) sentences stayed by the Supreme Court order pending Chun. Thousands of DWI sentences awaited the Court s final decision. These came to be known as Chun stay cases, and would have their own special issues post-chun, regarding what these stays preserved and what they did not. NEW JERSEY LAWYER December

6 The Impact of Chun Justice Helen Hoen, writing for a unanimous Court in Chun, took the technical subject matter involved below and made it clear and understandable. The Court s ultimate finding was that the Alcotest is reliable, but only on certain very detailed conditions. Justice Hoen s 131-page opinion (in slip form), plus the 376 pages of special master reports, together make an incredibly detailed resource for judges, prosecutors, and defense attorneys to understand the use of Alcotest readings as evidence in the courts. Chun was watched closely around the country, as challenges mounted to other breath-testing devices using computer technology, not just the Alcotest. Justice Hoen s opinion in Chun is the most significant decision of its kind on the subject nationwide. Indeed, news articles circulated worldwide on the case s progress and the Court s decision. What Machine? Chun deals only with the Draeger Alcotest 7110 MKIII-C running software version NJ We intend to make no comments about other models of the device or about the software used to operate any other Alcotest model, the Court said. 3 This is important to remember. Several towns now use portable breath testers from Draeger, also called Alcotest. These have not been found reliable by Chun. In fact, even the Alcotest 7110 MKIII-C running software version NJ 3.8 (used in the pilot program) has not been found reliable by Chun. 4 Further, the opinion does not bear specifically on the use of the Breathalyzer, except regarding the most general principals. The Court did not specifically rule on the parts of the system that make up what we think of as the machine separately. The state in Chun was careful before the special master to seek a ruling on the reliability of the Alcotest unit itself, not the CU34 simulator or temperature probe attached to it. This is true as well of the Ertco-Hart temperature-measuring device, which is used by the coordinator at calibration. When the New Jersey State Police switched to temperature devices other than those by Ertco-Hart, a legal issue developed. Since Chun specifies the Ertco-Hart certificate by name as a foundational document, 5 did the Court mean only an Ertco-Hart device, or will a certificate for any similar device due? As of the writing of this article, that issue remains unsettled, but is before the Appellate Division. 6 Reliable, But on Conditions The state in Chun sought a ruling that hardware and software as a whole were reliable as is. The defense, of course, sought a ruling that the Alcotest was not reliable at all. As amicus, the New Jersey State Bar Association (NJSBA) urged only a conditional finding of reliability. The special master generally agreed with the NJSBA on most but not all of the conditions suggested. The Court then agreed with most, but not all, of the conditions announced by the special master. However, as a whole Chun imposed a host of conditions upon the state if it wanted to use the Alcotest for evidential purposes. Specifically, the Court found that the software (or firmware as it is called when burned into the computer chip itself, as here) had to be revised. 7 Re-Examination of Earlier Jurisprudence The Chun Court analyzed all the prior Supreme Court DWI case law, as well as the changes in the DWI statute, including the increasing penalties and lower threshold readings, and found that this increasingly restrictive legislative scheme and the new technology of the Alcotest, as compared to the breathalyzer, requires us to re-examine much of our earlier jurisprudence. 8 Such a quiet and reasoned approach to the subject is unusual to the DWI practitioner, who is more used to all rulings overshadowed by the havoc on the road caused by DWI law. 20-Minute Observation Period There has always been a general scientific requirement of an observation period before requiring a breath test, to avoid contamination by mouth alcohol. The New Jersey State Police, who train all officers in the state in breath testing, have quantified this as a 20-minute observation period, even with the Breathalyzer. However, the fact that the Court in Chun actually incorporated language to this effect in its opinion appeared as big news to a lot of practitioners. The Court said: [T]he operator must observe the test subject for the required twentyminute period of time to ensure that no alcohol has entered the person s mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person s mouth, the operator is required to begin counting the twenty-minute period anew. 9 The Court here was really noting the safeguards the state has been promoting all along. To start, this language makes clear that a 20-minute period is actually required. The question then is since it is required, is it the state s burden to prove the 20 minutes, and if so, how? The first published answer came in State v. Filson, 10 where Mercer County Superior Court Judge Mitchel Ostrer held that: [The] defendant is not obliged to present proof that he did vomit or regurgitate in order to suppress the Alcotest results, in the absence of affirmative 6 NEW JERSEY LAWYER December 2010

7 proof from the State that defendant was continuously observed. Rather, the State must present affirmative proof that an operator actually observed the defendant. 11 This was followed by the Appellate Division in State v. Ugrovics, 12 which held that the State must establish [the 20- minute] element of admissibility by clear and convincing evidence. 13 The next issue, and it has been a big one, is whether the word operator meant just the actual operator, or could others do the observing too. In the early days of the Alcotest, only Breathalyzer-certified officers had been certified in the Alcotest. Because Chun took so long, there happened to be a lot of non-alcotest-certified officers making arrests on the road when Chun first came out. These officers had to bring their subjects to a certified Alcotest operator at the station or barracks. So the question arose whether the Court could really have meant that only the operator must observe? Why couldn t several officers do the observation, as long as it was a continuous 20 minutes? This became known as bracketing by some. Ugrovics, supra, has settled this issue, at least for now, by holding: We acknowledge that defendant s position is, at first blush, supported by what appears to be the plain language used by the Court in Chun. However, a literal, unexamined application of such language here would create an unduly and, in our view, unintended restriction on the State s ability to prosecute DWI cases based on the results of an Alcotest. 14 The Court went on to decide that: To construe the twenty-minute observation requirement as bestowing upon the operator the exclusive responsibility to monitor the test subject elevates form over substance and places an importance on the operator that is inconsistent with what the Chun Court envisioned to be his or her diminished role. 15 Ultimately, the Court went on to hold that any competent witness can testify regarding the 20-minute observation. 16 However, what did the Urgovics court mean by competent? Competent as in a trained officer? Or competent as in just not an infant or imbecile? Can the window washer testify that while all the officers where out of the room, he clearly observed the defendant for 20 minutes? Mouthpiece, Cell Phones, Instructions to Blow The operator is also required by protocol to attach : a new, disposable mouthpiece and removes cell phones and portable electronic devices from the testing area. The operator is required to read the following instruction to the test subject: I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions? 17 These would also seem simple enough instructions. But what happens if the operator doesn t follow them? In the remanded State v. Chun (after the opinion) the municipal court excluded Jane Chun s reading, finding that the mouthpiece was not changed, which compromised the reliability of her readings. There is not a case on cell phones yet, but the parties in Chun did stipulate before the special master that the protocol must be followed to avoid any effect on the readings. 18 While there also is not an opinion on reading the blowing instructions, there are some indications of what to expect. First, remember that Foley, supra, found that blowing refusals were too high when the Alcotest with firmware version NJ 3.8 was used. The above instructions are curative of some of the issues noted in Foley. On a different kind of blowing instructions, State v. Schmidt 19 held that blowing refusals are akin to ambiguous answers to whether he or she would take the test in the first place, and so require the officer to re-advise the defendant of the refusal penalties. [W]e do not view defendant s apparently inadequate efforts [to blow sufficiently] after his prior unequivocal consent to be an unequivocal declaration of intent, but rather, an ambiguous indication of purpose... We regard Widmaier s instruction that the second part of the Standard Statement be given if the defendant s response is conditional in any respect whatsoever, coupled with our holding in Duffy requiring the instruction under even more ambiguous circumstances, to provide the necessary foundation for a similar conclusion that the instruction was required under the factually different but equally conditional or ambiguous circumstances of this case. 20 Therefore, it would seem that both the technical instruction to blow, as well as the legal instruction on what happens if an individual does not blow, are both significant. Eleven Attempts...and Maybe 11 More for Good Measure? In footnote 14 of Chun, the Court remarked: Even if the officer types in the code for a refusal, he is not required to issue a summons for refusal. Instead, the officer may opt to start the test again and give the arrestee eleven more attempts. Alternatively, the officer may decide to terminate testing, with- NEW JERSEY LAWYER December

8 out charging the test subject with refusal. An operator will generally select this option if he or she concludes that the subject has in fact attempted to comply but is not capable of providing a sample that meets the minimum test criteria. 21 In Schmidt, supra, the Court found that Chun did not require any number of attempts in order to charge a defendant with refusal. In this regard, we note that there is no requirement in Chun that a defendant be afforded all eleven possible attempts to produce an adequate breath sample. Moreover, the Court in that case held that [c]harging an arrestee with refusal remains largely within the officer s discretion. Chun, supra, 194 N.J. at 99, 943 A.2d 114 (citing Widmaier, supra, 157 N.J. 475, 724 A.2d 241). So long as the second part of the Standard Statement is read and the defendant, without reasonable excuse, continues to produce inadequate breath samples, we find it to be within a police officer s discretion to terminate the Alcotest and charge the defendant with refusal. 22 Once charged with refusal, whether sufficient attempts were allowed by the officer would still be a question of fact for the trial court. The Supreme Court in Chun noted not only that up to 11 tests can be done, but that the officer may opt to start the test again and give the arrestee eleven more attempts. 23 This will surely buttress a defense where an officer does not give the subject enough chances in the face of good faith efforts by the defendant. Schmidt only decides whether the refusal charge could issue, not the ultimate conclusion at trial. Is an Error Message a Reading? The state is obligated to prove that the machine was in proper working order if it intends to get a reading admitted. 24 What about all those error messages that occur with alleged blowing refusals, like blowing not allowed, minimum volume not achieved, blowing time too short, plateau not reached, etc. Are these readings? These may not be what are first thought of as readings (i.e., a blood alcohol content (BAC) estimation by the machine). But, they are readings of the errors or the insufficiencies of the breath as measured by the machine. They are functions of the machine reading the amount of volume or the length of time or the flow of air. Therefore, the state is obligated to satisfy most, if not all, of the same conditions that Chun imposes whether a BAC reading or any other reading is to be admitted. Copy of Alcohol Influence Report (AIR) to Defendant Chun notes that [t]he operator must retain a copy of the AIR and give a copy to the arrestee. 25 Indeed the bottom of every AIR says copy given to subject. But that has not generally been the case either before or after Chun. It would be the simplest matter to comply. The machine itself can print a second copy or a photocopy could be made. However, few subjects are given a copy before they get it in discovery. It is not clear why this is, or what affect the failure has on a defendant s rights. Probe Serial Number, Probe Value, and Ertco-Hart Device Serial Number The AIR records the serial number of the Alcotest itself and the CU34 simulator, but it does not presently record the serial number of the temperature probe inside the simulator, or the digital temperature device used to check them at calibration. One of the many commands of Chun regarding firmware revision is that: The firmware should be rewritten so that the AIR, solution change report, and calibration documents include the temperature probe serial number and probe value;...and that future calibration, certification and linearity reports should include the serial number of the Ertco-Hart digital temperature measuring system utilized in performing those testing and maintenance operations. 26 Although Hansueli Ryser of Draeger publicly said that Draeger was ready with all of the revisions required by Chun shortly after the decision, twoand-a-half years after the decision revisions still have not been implemented. The reason the Court ordered the abovementioned revisions is that one cannot coordinate whether the certifications sent in discovery actually pertain to the case unless the serial numbers are noted. In the meantime, without such revisions, the state should be obligated to inform the defense of the numbers and be bound by such a representation. The probe value is a number (i.e., 101, 102, etc.) that is assigned at the factory to each probe. That number corresponds to a value and must be entered into the machine as a fine tuning to each probe. If a wrong number is entered, it will impact the reading. Finally, the Court names the Ertco- Hart device in particular, rather than any such device. As discussed earlier, this is an issue, now that the New Jersey State Police have decided to use another firm s device post-chun. Discovery of Digital Data The special master addressed the digital discovery issue as follows: h. As to discovery data, the collected centralized historical data... shall be provided for any Alcotest 7110 relevant to a particular defendant s case in a digital format readable in Microsoft Access or similar program generally 8 NEW JERSEY LAWYER December 2010

9 available to consumers in the open market. When such data includes tests from cases concerning defendants not part of the requesting defendant s case, the information provided will include departmental case numbers, ages, and breath temperatures or other relevant scientific data on those other defendants tests but not their personal identifying information, such as name, address, birth date, drivers license number, license plate number, or social security number. 27 As amicus, the NJSBA in Chun specifically asked the Court to include the digital data available by download or on disc: NJSBA agrees [with h above] but would add a clarification that includes the digital data now available in the 7110 itself and the CD-roms to which historical data is downloaded (since there is no central data collection yet). 28 The New Jersey Supreme Court agreed. Our review of the record satisfies us that there is substantial, credible evidence that supports the Special Master s recommendation concerning the creation and maintenance of a regularly-updated database, as well as his recommendation relating to providing access to that data to defendants. [footnote] 20. The amicus NJSBA suggests that defendants should have access to previously downloaded, centrally collected data. We do not perceive this to be different from the Special Master s recommendation in this regard and the extent of the access to be afforded to any litigant does not appear to be a matter in dispute. 29 The Court in Chun described the data as follows: When coordinators undertake to perform this calibration, currently on an annual basis, and other routine inspections, they also download the device s test information onto two compact discs. Ftnt16. In accordance with current State Police protocol, one of these discs is kept in the local police department s evidence file and the other is held by the coordinator. Ftnt16. The record reflects that each device is capable of storing the data from 1000 test results. Current State Police protocol, however, requires the coordinators to download data from each device before it exceeds 500 tests. 30 Chun specifically addressed the issue by adopting and enlarging the discovery to be provided. Chun decided that in order for a reading to be considered reliable certain safeguards must be in place. Access to the digital data was one of them. The 7110 is a device that defendants will not regularly be able to run their own tests on. The only data available to them to determine that the device in question was working properly is the data gathered by the state on its own machines. Recognizing this facet of Chun, the attorney general s spokesman said shortly after the decision that [d]ata downloaded from the machines in police departments and state police barracks are available to defense counsel in discovery. 31 The attorney general then issued a memo outlining the procedure locals are to use to comply with providing the digital discovery, which concluded that...the local agency can store the redacted files in an electronic medium on a new compact disc, and provide defense counsel with the opportunity to view, or to receive a copy of, the compact disc. 32 When first faced with the denial of an order to obtain digital data discovery, the Appellate Division summarily reversed the trial court s denial in State v. Reardon, 33 ordering that such discovery be provided in accord with the attorney general s memorandum. Subsequently, in State v Maricic, 34 the Appellate Division issued a per curiam, three-judge panel opinion confirming the right to the digital data. Volume As noted earlier, so-called blowing refusal charges had been an issue since Foley, supra, and the earlier version of firmware. In Chun, the Court also found that [a]lthough the experts generally agreed that 1.5 liters is the optimal minimum, some people may be incapable of providing that sample. 35 Therefore, authorizing the issuance of a summons for refusal [where the defendant cannot achieve the minimum volume] is unjust. 36 Our conclusion is that the firmware must be revised to accept a minimum breath volume sample of 1.2 liters from women over the age of sixty requires us to consider the impact of this directive for pending prosecutions. 37 In light of the scientific evidence that we have found to be persuasive, in the absence of some other evidence that supports the conclusion that any such individual was capable of providing an appropriate sample, by volume, we must assume that she was unable to do so. For these individuals, then, an AIR demonstrating insufficient breath volume may not be used as proof on a charge of refusal. On the other hand, if the AIR demonstrates that a woman over the age of sixty was able to provide at least one sample that was deemed to be sufficient for purposes of the 1.5 liter volume requirement, but she failed to do so on a subsequent attempt, the AIR demonstrating those facts may be utilized as evidence, albeit not conclusive NEW JERSEY LAWYER December

10 proof, in support of a refusal charge. 38 As noted in the italicized section above, if a defendant can show an idiosyncratic defense, he or she may well prevail on the issue and be acquitted of the refusal. On the issue of equal protection, the Court found that its rule did not discriminate by setting different standards due to sex and age. But again, a defendant is free to argue the facts in his or her case, and sex and age are not off the table in those discussions by any means. Temperature Subject temperature was a major battleground in Chun. The manufacturer itself recognizes the significance of the variation of human breath temperature and its effect on the reading, and offers a breath temperature monitor that would measure the exact temperature coming into the air hose. However, the calibrating device for that option is rather cumbersome, and apparently would require a van to transport. Nevertheless, the special master decided that human breath temperature was a variable that could be controlled by the added sensor option, and so ordered that either it be adopted or that each reading be reduced by 6.58 percent, since the Alcotest assumed a temperature of 34 degrees C and experts agreed it was closer to 35 degrees C. The Supreme Court, however, did not agree, and found that [b]oth the truncation of results and the use of the 2100 to 1 blood/breath ratio, a ratio that in part takes temperature into account, effectively underestimate the calculation to the advantage of the test subject. 39 More to the point, perhaps, we reach our conclusion for practical reasons as well. The unrebutted evidence in the record convincingly demonstrates that requiring the addition of the breath temperature sensors would result in an unreasonable maintenance burden to the program. 40 This does not mean a defendant with a high fever has no defense. The Court was speaking of the average human breath temperature. So again, an idiosyncratic fact pattern will be for the trial court to decide. Tolerance In reviewing the approximately 250 cases known as the Pennsauken data and every case later in Chun s Middlesex data (about 1,350),one thing was apparent there were literally no third tests in the Middlesex data while there was a more normal amount in the Pennsauken data, where about four percent of the cases had third tests. Although Hansueli Ryser of Draeger, on the stand in Chun, first denied there was any change in the allowable tolerance between readings, he finally relented on cross-examination, admitting the tolerance was, in fact, changed since Foley. This was further confirmed by the testimony of the former chief forensic scientist of New Jersey, Thomas Brettell, who admitted he requested the change, which doubled the allowable tolerance between the readings from what it had been previously in version NJ 3.8. The Chun Court recognized the crucial importance of tolerance to a reading but unfortunately lumped together two different aspects of tolerance, called precision and accuracy. Tolerance is the range of any set of measurements that is accepted as being representative of a true reading. Precision and accuracy can be ensured by requiring the application of a narrow range for tolerance. Conversely, the wider the acceptable tolerance between reported results, the lower our confidence in the accuracy of any of the reported results. Therefore, for purposes of permitting any device to be utilized for proof of a per se violation of the statute, the acceptable tolerance is of fundamental importance. 41 Accuracy tolerance is a reflection of how close any reading is to the true reading. For example, how close is a.08 to a true.08? Precision tolerance is a concept also referred to in science as repeatability. This is a core scientific principal that if a result cannot be repeated, it is not likely reliable. In context, it means how close do two readings have to be to each other to assure the Court that either is reliable. Accuracy, in this instance, generally relates to readings very close to a certain important cutoff, (i.e.,.01,.04,.08,.10, and.15). But precision is concerned with all readings, and a failure of repeatability within a certain range will mean that both readings are unreliable no matter how high or low. For example, accuracy focuses on determining exactly how close a baseball pitch is to the center of the plate. Precision focuses on whether the pitcher can hit the strike zone more than once; if he can t, he is not reliable. The range between high and low acceptable readings for the Breathalyzer was long held to be.01 or less apart. 42 However, the NJ 3.8 version of Alcotest firmware changed this allowable range (without any case law) to 10 percent of the average of the readings at.10 or above and plus or minus.005 BAC below.10 BAC. This kept the precision number at.01 only at a.10 BAC but expanded it above and below. Then, in version NJ 3.11, the State [further] directed Draeger to reprogram the device so as to take advantage of [a] far wider, effectively doubled, range for tolerance. 43 This made the range at.01 or above effectively 20 percent between the high and low readings, so wide that there was never a third test required. This, the Court recognized, was an intolerable tolerance. We therefore direct that for future firmware revisions, the device be programmed to fix the tolerance range to be plus or minus percent BAC 10 NEW JERSEY LAWYER December 2010

11 from the mean or plus or minus five percent of the mean, whichever is greater, in order to ensure scientifically accurate, admissible test results. 44 In the meantime, until that revision (which is still being addressed two-anda-half years later) the Court ordered: [T]he State shall review the BAC results as reported in the AIR and shall calculate whether those results fall within tolerance, and the court shall review those calculations and make them a part of the record. In those cases in which this review reveals that the results fall outside of the acceptable tolerance, the AIR cannot be deemed to be sufficiently scientifically reliable to be admissible and it shall not be admitted into evidence as proof of a per se violation. 45 With so many lawyers and judges doing calculations until the firmware is revised, there were bound to be disputes. One such issue was dealt with in State v. Rivera, 46 where the state truncated the mean of the four readings to four places, while the defendant did so to only three. The Court found that no truncation was authorized by Chun of the mean at all, but that the calculation in this case at four (as advocated by the state) was the same as if there was no truncation, and so allowed the reading to be admitted. 47 Neither the defense nor the Court made mention of the fact that, since Chun, the New Jersey State Police had been calculating the mean to three places, just as the defense did here, and had been instructing local departments to use the state police website calculator on every test. Therefore, the practitioner must be aware that there are many pre-rivera readings that may violate its interpretation of Chun. Although Chun also goes into great detail regarding what to do when there is a third breath test under NJ 3.11,... we conclude that each AIR that includes three breath tests will be admissible as evidence of an accurate BAC reading only after application of the Shaffer formula 35 to ensure the correct calculation of the lowest possible result and reading. 48 The fact of the matter is that under the 20 percent precision tolerance still programmed in NJ 3.11, a real third test will never be seen. (Occasionally a.00 and then two real readings will be seen, but this is a software glitch, not a true third test.) On the question of accuracy tolerance, the Chun special master concluded: We urge caution by the trial judge at the critical levels,.04,.08, or.10 when interpreting a close reading in the context of otherwise persuasive exculpatory clinical evidence. He continued,...because of the margin of error of.004 or and the inevitable influence of analytical and biological variation on a particular test. 49 However, in State v. Coppola, 50 Superior Court Judge McNeil, in Camden County, found that such an assertion was contrary to Chun. Coppola was a Chun stay case where the defendant asserted that the language of the special master was enough to re-open the guilty plea post-chun. Yet, one could argue that a court could find the same Coppola result, (i.e., denying the motion to re-open), and still be consistent with the special master s finding because the mere assertion of such special master language did not establish the persuasive exculpatory clinical evidence the special master noted. As there was no appeal in Coppola, it is not binding precedent, in any event. So the accuracy issue remains an open one. Six-Month Re-Calibration The subject of calibration in Chun was another area where the relationship between Foley and Chun turned out to be important. The initial discovery in Foley in 2002 revealed that there was an original manufacturer recommendation for calibration of the Alcotest every six months, dating back to By the time New Jersey started its pilot program in 2001, however, the manufacturer certificates (which are drawn up with input from the state) on the New Jersey machines said re-calibration was required at one year. This discrepancy came up in Foley, but the manufacturer testified that one year was sufficient, so nothing came of the issue. During the first 13-week hearing in Chun, the subject was not raised. It was only after the second remand hearing on the Draeger firmware that the wheels slowly started turning. It was known that the fuel cell component deteriorated. (The Alcotest measures breath alcohol via both an inferred (IR) and electro chemical (EC) sensors, which are also called a fuel cell.) But it was not known until this second hearing in Chun that Draeger deployed an algorithm in its firmware that actually borrowed the IR reading to compensate when the EC reading was up to 125 percent of the allowed tolerance between the EC and IR readings (a different tolerance discussed earlier). Finally, the question of why the manufacturer originally required six-month calibrations started to make sense. As amicus, the NJSBA submitted the original Foley discovery material with that 1998 Draeger recommendation first to the Chun special master and then to the Court itself. The Court ultimately held: The record reflects that a semi-annual inspection and recalibration program recommended by the Special Master is consistent with the manufacturer s recommendations. At the same time, it provides a useful safeguard by affording a more regular opportunity to evaluate and replace aging fuel cells. We discern no reason to permit the NEW JERSEY LAWYER December

12 State to continue to adhere to its program of annual recalibration, particularly in light of the concerns raised as to the utilization of a compensating algorithm in the interim. 51 The question of whether this particular finding should be applied retroactively to matters pending at the time of the decision (i.e., Chun stay case) was decided in State v. Pollock, 52 which held that it should not. [T]he Court [in Chun] required the State to forthwith [c]ommence inspection and recalibration of all Alcotest devices every six months in place of the current annual inspection and recalibration program. Id. at 153, 943 A.2d 114. The use of commence in the order is consistent with the Court s language in the body of the opinion that it could discern no reason to permit the State to continue to adhere to its program of annual recalibration. Id. at 123, 943 A.2d 114 (emphasis added). 53 The Court was very specific in deciding that this particular issue was not to be applied retroactively. This is not a general pronouncement regarding all the conditions established by Chun. Other Firmware Issues In addition to what has been discussed, the Court in Chun also directed that the State arrange to have the software corrected to re-enable the catastrophic error detection feature, 54 and that the firmware be locked so that only the manufacturer will be able to make changes to it, which changes may then be downloaded by the coordinators. 55 The Court required as well that the device be programmed so that on all future AIR printouts, the firmware version then being utilized by the device is reported. 56 Likely due to the hidden tolerance change noted above, the Court also specifically ordered that, in the future, the state must give clear notice of any changes to the firmware. We therefore have concluded that this required notice, to the parties, the public and the amicus NJSBA, of the future firmware revisions must be sufficiently specific to identify the proposed changes in a manner that affords notice in compliance with due process. A generic notice to the effect that the firmware has been revised, in light of some of the previous alterations that we today correct, will not suffice. [Footnote] What will happen once all the required changes are made? Will there have to be another scientific reliability hearing? In footnote 38, the Court leaves the issue for another day: [Footnote] 38. We note that the parties asked this Court to appoint an independent software house to be responsible for any future reviews of the Alcotest source code. We decline to do so at this time, and will determine that issue should there be a challenge in the future to the scientific reliability of the Alcotest based on future firmware revisions. 58 Training The special master report required Draeger to scrupulously follow the provision of an agreement made between Draeger and the Chun defense called Addendum A, as a condition of reliability. One of the key provisions of that agreement was that Drager would sell machines and firmware to defense and defense experts in the future. However, there is no mention of that in the Chun opinion itself. This is a tremendous shackle to try to defend in an Alcotest case. Without machines, experts simply cannot do the continuing science necessary to test various issues as they develop. The special master has also imposed a condition that the state provide training to defense attorneys and defense experts. The Court did recognize training as a condition, but ordered that Draeger, rather than the state, must provide it: We...direct that Draeger make Alcotest training, substantially similar to that provided to Alcotest operators and coordinators, available to licensed New Jersey attorneys and their designated experts. The training shall be offered at regular intervals and at locations within the State of New Jersey, at a reasonable cost to those who attend. 59 So far, Draeger has offered only two training courses since Chun, one in North Jersey and one in South Jersey. However, there has been no training offered in the last year and a half. Repair Records The Court briefly dealt with the issue of repair records. The record includes scant evidence relating to repair history of any of these devices. Presumably the devices that were part of the evidence in the prosecutions for the named defendants were so newly put into service that no repairs have been needed. At the same time, there is evidence suggesting that from time to time one or more of the devices has been adjusted by a coordinator or returned to Draeger for repair. The record reflects that in either event, a document is generated by the coordinators that evidences those repairs. We commend to the State the establishment of a protocol for maintaining repair logs to the extent that these become more frequent and, therefore, potentially relevant. 60 Subsequently in State v Maricic, 61 the 12 NEW JERSEY LAWYER December 2010

13 Appellate Division issued a per curiam, three-judge panel opinion confirming the right to obtain repair records in discovery. It appears most police officers, who are trained to report and document every aspect of every police action they do, are not creating any reports when they call a coordinator about the malfunction of a $13,500 machine, or when they send one back to the factory for repairs. There are no local memos documenting calls for or decisions to send a machine for repairs. All that is usually seen in discovery (and then only upon court order) are copies of the Fed Ex or UPS bills. Recently, however, the state police have instituted a routine report to briefly summarize what the coordinator did regarding repair issues. Overall, though, there is still a lack of repair logs called for by the Court. Foundational Documents The special master identified 20 documents (although he grouped them into 12 items) that he held were needed to be placed into evidence by the state as a foundation for admissibility of any reading. (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator s credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in Calibration- Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability. 62 The Supreme Court did not go quite as far, requiring only what it called core foundational documents 63 be admitted into evidence. The [core] foundational documents that we conclude need to be entered into evidence therefore are few. They are: (1) the most recent calibration report prior to a defendant s test, with part I-control tests, part II-linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant s test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant s control tests. Absent a pre-trial challenge to the admissibility of the AIR based on one of the other foundational documents produced in discovery, we perceive of no reason to require that they be made a part of the record routinely. 64 However, all of the foundational documents, whether core or not, should continue to be produced in discovery. But what happens when the state does not do so? There may be a difference between the two types of documents. The core documents are required elements of the state s case to admit a reading. A defendant has no obligation to point out deficiencies in the state s case. Therefore, a defendant may be able to simply wait for the trial and object to admission of evidence not provided as required by Chun in discovery. However, regarding the noncore foundational document, a defendant may have to complain ahead of time. Who Must Testify? After two rounds of special master hearings, four rounds of briefings to the Supreme Court and two oral arguments before them, the Chun Court asked the parties and amicus curiae to brief the issue of the effect of Crawford v. Washington, 65 and a defendant s right to confrontation on the issues in the case before it. Their final conclusion was that the core foundational documents were not testimonial in nature, and could therefore be admitted without the testimony of the officer who performed the new solution report and the coordinator who performed the calibration. Regarding the AIR itself (which is not an enumerated foundational document, but rather the subject for which the foundation must be laid), the Court stated: Although we have concluded that the AIR is not testimonial, we have nevertheless concluded that defendants are entitled to certain safeguards that we have required be implemented in prosecutions based on the Alcotest. We have directed that an opportunity for cross-examination similar to that described in Simbara and Romano be provided to these defendants through our requirement that the operator of the device be made available to testify. Likewise, we have required the routine production in discovery of all of the foundational documents that might reveal some possible flaw in the operation of the particular device and we have demanded that the core foundational documents that establish the good working order of the device be NEW JERSEY LAWYER December

14 admitted into evidence. 66 Having required the routine production in discovery of all of the foundational documents that might reveal some possible flaw in the operation of the particular device, 67 the Court further explained in footnote 47: We presume that, in the event that any defendant perceives of an irregularity in any of these documents that might affect the proper operation of the device in question, timely issuance of a subpoena will suffice for purposes of protecting that defendant s rights. Were the use of the subpoena power to become routine, we would commend to the parties, with the assistance of our municipal courts, the use of pretrial de bene esse depositions or video conferencing technology to reduce the burden on the State or any independent testing laboratories. 68 While these documents themselves are not testimonial, nevertheless, in order to protect the defendant s rights of cross-examination regarding whether the machine was in good working order the Court recognizes the right that a defendant has to cross-examine the coordinator, the new solution operator, the lab tech, and Draeger tech, behind the documents. By using the word perceives, the Court appears to be clearly saying that the defendant s right to have the witness is entirely subjective to the defendant. Moreover, they are envisioning that, such a right being subjective, the flood gates may open. For example in a routine blood and drug case, the defendant may simply request a trial and the hospital and lab witnesses must be subpoenaed as part of the state s case. They therefore offer the suggestion that the court consider bene esse depositions or video conferencing technology to reduce the burden on the State or any independent testing laboratories. 69 Oddly, the Court says issuance of a subpoena will suffice. The mere issuance of a subpoena cannot, of course, protect the right of confrontation unless the witness shows up. Perhaps the Court just took it for granted that once a subpoena is properly issued, the witness would show up. But what if he or she does not? In that Ertco-Hart case from Monmouth County, 70 a clear issue arose regarding whether a non- Ertco-Hart certification could substitute for the Ertco-Hart one required by Chun. The defendant subpoenaed a witness from the substituted company. When the witness did not appear, the municipal court held that footnote 47 had been satisfied by the mere issuance of the subpoena. That case is now on appeal at the Appellate Division, and perhaps this issue will be addressed there differently. Forthwith? As technology pervades every part of life today, it should not be surprising that it has come of age in the courts too. However, Chun tells us that the state may be restricted, in great detail, in its use of technology. The role of the gatekeeper of evidence that comes into the courts remains one of the Judiciary s chief functions. The Court did not bow to the inherent pressure caused by the state s decision to implement the Alcotest statewide before there was a clear judicial approval of the technology. Instead, the Court urged the state to halt implementation, which it did, stopping at 17 of the 21 counties until after Chun was decided. The Court did not flinch at the fact that stayed sentences mounted as it took the time necessary to have the machine tested in the crucible of the adversarial system. Although one side or the other can complain about parts of Chun, the ruling stands for much more than its parts. It stands as a bulwark against the arbitrary use of technology by the state to convict defendants. Yet it is only a bulwark if the conditions imposed are respected. Attached to Chun was the Court s order. Much of it commanded the state to comply with its provisions forthwith, but that was two-and-a-half years ago. As this magazine goes to press, the firmware has not been revised. Defendants have not been given access to a centralized database of digital data. Draeger training has stopped. Judges and lawyers are still forced to do multiple calculations to correct for a doubled tolerance code purposely written into the firmware by the state without authority. The NJSBA moved before the Court at three months after the order, and then again at one year. However, in both instances the Court declined to hear the motions. Endnotes N.J. 54 (2008) N.J. Super. 341 (Law Div. 2004). 3. Chun, 194 N.J. at But see Foley, supra. 5. Chun, 194 N.J. at State v. Holland is on appeal from the Monmouth County Law Division unpublished ruling excluding a reading based upon this issue. 7. Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at 79. Emphasis added N.J. Super. 246 (Law Div. 2009). 11. Filson at N.J. Super. 482 (App. Div. 2009). 13. Ugrovics, 410 N.J. Super. at Urgrovics, 410 N.J. Super. at Urgrovics, 410 N.J. Super. at Ibid. 17. Chun, 194 N.J. at Special Master Report at N.J. Super. LEXIS 113 (App. Div. 2010) 20. Schmidt, 2010 N.J. Super. LEXIS 113 at Chun, 194 N.J. at NEW JERSEY LAWYER December 2010

15 22. Schmidt, 2010 N.J. Super. LEXIS 113 at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Special Master s Report at NJSBA Amicus Brief in Chun at page Chun, 194 N.J. at 90. Emphasis added. 30. Chun, 194 N.J. at NJLJ 6 (April 7, 2008). 32. April 29, 2008 AG Memo, page Docket A T4, unpublished, filed 9/15/ App. Div. Unpublished, decided Aug. 31, 2010, Docket a t Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at State v. Downie, 117 N.J. 450 (1990); Romano v. Kimmelman, 96 N.J. 66 (1984). 43. Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at N.J. Super. 492 (App. Div. 2010). 47. Ibid at Chun, 194 N.J. at Special Master Report at N.J. Super. LEXIS 158, (Law Div. 2009). 51. Chun, 194 N.J. at N.J. Super. 100 (App Div 2009). 53. Pollock, 407 N.J. Super. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at 133 p Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at App. Div., unpublished, decided Aug. 31, 2010, Docket a t Chun, 194 N.J. at Chun, 194 N.J. at Chun, 194 N.J. at U.S. 36 (2004). 66. Chun, 194 N.J. at Ibid. 68. Chun, 194 N.J. at 144. Emphasis added. 69. Ibid. 70. State v. Holland, supra. Jeffrey Evan Gold is principal of the Law Offices of Gold & Associates, P.C., and chair of the NJSBA Municipal Court Section. He was presented with the NJSBA Municipal Practice Award in 2004 and 2008; and the NJSBA Amicus Award in 2008, and was lead defense counsel in Foley and amicus counsel for the NJSBA in Chun. NEW JERSEY LAWYER December

16 Seeing Double Representing a New York Driver in a New Jersey DWI Case by James B. Seplowitz New Jersey attorneys defending driving while intoxicated (DWI) cases must assess different variables and issues for each individual client, such as the client s employment, need for a license, driving history, companion traffic summonses, and the venue. When the client resides in another state, the attorney must also consider the potential penalties that may be imposed by that state s motor vehicles department resulting from a New Jersey DWI conviction. For DWI defense attorneys in North Jersey, the most commonly encountered out-of-state drivers are our neighbors to the east and north. Accordingly, this article will discuss practice tips and issues to consider when representing a New York-licensed driver on a New Jersey DWI. 1 New Jersey DWI Penalties The most notable distinction between New Jersey and New York DWI offenses is that New Jersey infractions are motor vehicle offenses unless someone is injured or killed, while New York offenses are crimes: A first offense is a misdemeanor 2 and a second offense is a felony if committed within 10 years of the first. 3 Nonetheless, despite opting to classify DWI offenses as merely motor vehicle infractions, the New Jersey Legislature has enacted serious penalties for a DWI conviction. A first DWI conviction in New Jersey carries a suspension of driving privileges for a period of seven to 12 months if the blood alcohol level (BAC) was.10 percent or above, 4 or three months if the BAC was below.10 percent, with a per se violation occurring at.08 percent or above. 5 Additionally, the defendant will be sentenced to attend 12 to 48 hours of drunkdriving classes through the Intoxicated Driver Resource Center (IDRC), pay court-imposed fines and surcharges totaling approximately $600 to $900, and pay a Motor Vehicle Commission (MVC) surcharge of $1,000 a year for three years. 6 These penalties are mandatory for all convicted DWI offenders, whether residing in or out of New Jersey. However, out-of-state residents can attend the drunk-driving classes at a facility in their home state if approved by the IDRC. Optional penalties, such as 30 days in jail, may be imposed for a first offense, but are rarely employed. A recent amendment to the DWI statute requires the installation of an ignition interlock device in the driver s vehicle for a period of six to 12 months upon restoration of driving privileges if the BAC of the driver is shown to be.15 percent or above, or if the driver refused to take the breath test. A second DWI conviction carries the following mandatory penalties: a two-year suspension of driving privileges; 30 days community service; two to 90 days in jail, with the option of serving the jail sentence inpatient at the IDRC; installation of an ignition interlock device for a period of one to three years upon restoration of driving privileges; court-imposed fines and surcharges totaling approximately $900 to $1,400; and an MVC surcharge of $1,000 a year for three years. A third or subsequent DWI conviction will result in a mandatory suspension of driving privileges for 10 years; six months in the county jail; installation of an ignition interlock device for a period of one to three years upon restoration of driving privileges; approximately $1,400 in court-imposed fines and surcharges; and an MVC surcharge of $1,500 a year for three years. Refusal convictions carry the same penalties as DWI convictions, except for the jail portion of the sentence. In addition, a conviction for refusal to submit to a breath test in New Jersey is recorded as a separate driving offense on the driver s motor vehicle abstract. If these offenses take place in a school zone, most of the penalties are doubled. New York DWI Penalties New York divides its DWI laws into three levels of impairment: 1) aggravated driving while intoxicated (BAC of.18 percent and 16 NEW JERSEY LAWYER December 2010

17 higher); 7 2) driving while intoxicated (BAC of.08 percent or higher) 8 or driving while impaired by a drug; 9 and 3) driving while ability impaired (DWAI). 10 Aggravated driving while intoxicated is a misdemeanor for the first offense, carrying a minimum one-year license revocation, up to one year in jail, and a fine of $1,000 to $2,500, along with other mandatory surcharges and assessments. 11 A second offense within five years is a Class E felony, mandating a minimum license revocation of 18 months, a jail sentence of five days to four years, and a fine of $1,000 to $5, A third or subsequent offense within 10 years is a Class D felony, punishable by a minimum license revocation of 18 months with a possibility of permanent revocation, 10 days to seven years in jail, and a fine of $2,000 to $10, Ordinary, or non-aggravated, DWI convictions have the same classifications and essentially the same penalties as aggravated DWI convictions, except a first offense carries a minimum sixmonth license revocation and subsequent offenses carry a minimum oneyear license revocation. Meanwhile, a first or second DWAI conviction is merely a violation (or traffic infraction) and not a crime, 14 and frequently utilized for plea bargaining purposes for DWI charges. A first DWAI conviction carries a 90-day license suspension, a second within five years of another DWI-related offense carries a minimum six-month revocation, and a DWAI conviction within 10 years of two DWI-related offenses is a misdemeanor with a minimum one-year revocation. Unlike in New Jersey, breath test refusal charges in New York are not prosecuted in conjunction with the DWI prosecution because the refusal charge is merely administrative and handled through the New York Department of Motor Vehicles (DMV). Notwithstanding, the defendant s license will be revoked immediately upon the refusal and, if upheld at the hearing, cannot be restored for at least a year, even on a first offense. 15 Nonetheless, it does not appear that a refusal conviction in New Jersey will result in a loss of driving privileges in New York. If a New York driver is convicted of an out-of-state DWI offense and the conviction is reported to the New York DMV through the Interstate Driver License Compact, then the New York DMV will revoke that driver s privileges for a minimum period of 90 days. 16 If the driver is under 21, the length of the suspension will be a minimum of one year. 17 Since New York and New Jersey are both members of the interstate compact, a New York driver convicted of a New Jersey DWI should expect to receive a license revocation of at least 90 days, whether or not the driver has prior convictions and no matter the length of the period of suspension in New Jersey. However, the New York revocation will not take effect immediately. Rather, because of the delay in reporting and administrative processing, the New York revocation will not take effect for weeks or even months after the New Jersey conviction. When the order of revocation from the New York DMV finally arrives, it should be accompanied by information on how to apply for a conditional license. Conditional Licenses and Restoration of New York Driving Privileges Unlike New Jersey license suspensions, New York suspensions or revocations for DWI convictions are not absolute. If a New York driver is convicted of a DWI-related offense, he or she can participate in the New York State Drinking Driving Program (DDP) and apply for a conditional license that allows for driving to and from work, school, treatment classes, medical appointments, etc. 18 The costs for the license and program are relatively reasonable. The program consists of a minimum of 15 hours of instructional classes in seven weekly sessions to promote drug and alcohol rehabilitation. 19 In order to be eligible for the conditional license, the applicant must not have been convicted of a DWI-related offense in the past five years or previously participated in the program in the past five years. 20 If any of the terms of the conditional license are violated, including failure to complete the DDP, the conditional license shall be revoked by the DMV. 21 It is important to advise clients that the DDP will not give credit for the time spent at the New Jersey IDRC classes. However, the New Jersey IDRC obligation may be considered fulfilled through the DDP classes. When New York driving privileges are suspended for an alcohol-related offense, they are not automatically restored when the period of suspension expires, even if a conditional license was obtained. As does New Jersey, New York requires the payment of a restoration fee (currently $50) to the DMV Driver Improvement Adjudication Unit, as well as a notice of completion from the DDP. Calculating Prior Offenses in New Jersey When a client advises his or her attorney of a prior DWI conviction, it is helpful to order a driving record to determine the number of priors and the date of the offenses. The date of the offenses is particularly significant because of the 10-year step down provision for sentencing purposes under N.J.S.A. 39:4-50(a). An abstract of driving record can be ordered from the New York DMV by filling out DMV Form MV- 15 and paying a fee of $ If a client has previously been licensed in New Jersey or the prior offense took place in NEW JERSEY LAWYER December

18 New Jersey, it may also be prudent to order an abstract from the New Jersey MVC, as the MVC frequently creates abstracts for out-of-state drivers who are convicted of motor vehicle infractions in New Jersey. A prior DWAI conviction in New York is generally considered a prior DWI conviction in New Jersey to enhance the penalties of a subsequent offense. 23 However, if it can be shown that the DWAI conviction was solely based on a BAC reading of below.08 percent, then, arguably, the DWAI cannot count as a prior. A conviction of a violation of a law of a substantially similar nature in another jurisdiction.shall constitute a prior conviction under this subsection unless the defendant can demonstrate by clear and convincing evidence that the conviction in the other jurisdiction was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%. 24 A DWAI can be based upon a reading of.05 to.07 percent. However, since most DWAI convictions involve readings of.08 percent or above and were pleaded down, this can be a difficult burden to meet. Because repeat offenders do not seem to be afraid of breaking the rules, an attorney may also encounter a New York-licensed driver charged with a DWI in New Jersey while still under suspension for a prior New York DWI. Should this be the case, the client will face double exposure to the enhanced sentencing penalties under both N.J.S.A. 39:4-50(a) (DWI) and N.J.S.A. 39:3-40(f)(2) (driving while on the revoked list). 25 If the client was properly driving with a conditional license, however, the additional penalties under N.J.S.A. 39:3-40(f)(2) will not apply. Conclusion When representing a New Yorklicensed driver in New Jersey, a practitioner needs to look beyond the laws of the Garden State. In addition to knowledge of New Jersey DWI law and procedure, it is vital to have a basic comprehension of New York s DWI practices and the further penalties and consequences that the client may face when returning to the Empire State after sentencing. Endnotes 1. It would also be prudent, even recommended, to advise the client to simultaneously consult with a New York attorney experienced in defending such matters to fully understand the range of the New York consequences and to coordinate with on the defense strategy, if necessary, given those consequences. 2. N.Y.V.T.L. 1193(1)(b). 3. N.Y.V.T.L. 1193(1)(c). 4. N.J.S.A. 39:4-50(a)(1)(ii). 5. N.J.S.A. 39:4-50(a)(1)(i). 6. N.J.S.A. 39:4-50(a)(1). 7. N.Y.V.T.L. 1192(2-a). 8. N.Y.V.T.L. 1192(2) & 1192(3). 9. N.Y.V.T.L. 1192(4). 10. N.Y.V.T.L. 1192(1). A DWAI is a lesser included offense of DWI. 11. N.Y.V.T.L. 1193(1)(b). 12. N.Y.V.T.L. 1193(1)(c)(i). 13. N.Y.V.T.L. 1193(1)(c)(ii). 14. N.Y.V.T.L. 1193(1)(a). 15. N.Y.V.T.L. 1194(2). 16. N.Y.V.T.L. 1193(2)(b)(8). 17. N.Y.V.T.L. 1193(2)(b)(6) & (7). 18. N.Y.V.T.L. 1196(7)(a). 19. N.Y.V.T.L. 1196(1). 20. N.Y.V.T.L. 1196(4). Additional disqualifications exist in the New York regulations, such as a poor driving record. N.Y. Comp. Codes R. & Regs. Tit. 15, N.Y.V.T.L. 1196(7)(f). 22. The form is available online through the New York State DMV s website at forms/mv15.pdf. 23. See State v. Regan, 209 N.J. Super. 596 (App. Div. 1986) (prior DWAI considered as prior violation for sentencing purposes under N.J.S.A. 39:4-50); D.M.V. v. Lawrence, 194 N.J. Super. 1 (App. Div. 1983) (N.J.S.A. 39:4-50 and N.Y.V.T.L. 1192(1) found to be of a substantially similar nature ). 24. N.J.S.A. 39:4-50(a). 25. See State v. Colley, 397 N.J. Super. 214 (App. Div. 2007). James B. Seplowitz is a partner at the Rem Zeller Law Group, a professional corporation, in Hackensack. He is a co-chair of the Bergen County Bar Association s Criminal Practice Committee. 18 NEW JERSEY LAWYER December 2010

19 Collateral Consequences The Potential for Deportation and Exclusion as a Result of a Municipal Court Shoplifting Conviction by John E. Hogan and Amy B. Herbold Aseemingly minor disorderly persons conviction in municipal court can result in severe immigration consequences for noncitizens. In light of the recent opinions by the United States Supreme Court and New Jersey Supreme Court stressing the necessity for counsel to adequately advise clients of the immigration consequences of a conviction prior to a plea, a municipal practitioner must be attentive to the potential immigration consequences that flow from a conviction. While immigration consequences may inevitably arise from many of the offenses handled in New Jersey s municipal courts, this article exemplifies a single offense shoplifting due to the unique statutory presumptions attendant to the offense and active role merchants take in prosecuting these offenses. A conviction for shoplifting, which is categorized as a crime involving moral turpitude, in certain circumstances can result in a noncitizen s removal or deportation from the United States, or can render a noncitizen inadmissible or excludable, an immigration status that carries several potential adverse immigration consequences for noncitizens. A Criminal Attorney s Obligation Due to the potentially devastating consequence of deportation faced by noncitizens convicted of criminal offenses, both the United States Supreme Court and the New Jersey Supreme Court have recently overturned pleas for ineffective assistance of counsel based on counsel s failure to advise clients of deportation consequences prior to entering pleas. Recently, in Padilla v. Kentucky, the United States Supreme Court held that where deportation consequences of a plea are clear, a criminal attorney has a duty to advise his or her client of those consequences prior to a plea. 1 The Court explained that the severity of deportation the equivalent of banishment or exile, [...] only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation. 2 In addition, in State v. Nunez-Valdiz, the New Jersey Supreme Court sent a clear message to criminal attorneys regarding the necessity of providing clients sufficient information on potential immigration consequences prior to permitting them to plead guilty. 3 In Nunez-Valdiz, the New Jersey Supreme Court overturned a noncitizen defendant s plea and remanded the case for trial where the noncitizen defendant had pleaded guilty to fourth-degree sexual contact and was not informed by his attorney that a consequence of his plea was deportation. 4 In recommending a reform of New Jersey s standard plea form, the Court stressed that we share the concern of all amici that our plea procedures should be modified to help ensure that a noncitizen defendant receives information sufficient to make an informed decision regarding whether to plead guilty. 5 Accordingly, in order to ensure effective counsel is provided, an attorney should describe not only the penal consequences of a conviction, but should also advise his or her client of the immigration consequences. Shoplifting Defined The offense of shoplifting is codified under N.J.S.A. 2C: The statute identifies six types of shoplifting offenses: 1. taking possession of and carrying away merchandise with the intention of not paying; 6 2. concealing merchandise with the intention of not paying; 7 3. removing a price tag or label from merchandise with the NEW JERSEY LAWYER December

20 intention of paying less than the full retail value; 8 4. moving merchandise from one container to another in order to pay less than the full retail value; 9 5. under-ringing an item in order to pay less than the full retail value; 10 and, 6. taking a shopping cart with the intention of depriving the retail establishment of that cart. 11 Significantly, when a person is charged with shoplifting by concealment, he or she can be arrested for shoplifting prior to even exiting the retail establishment. The statute provides for a presumption against the accused, allowing evidence of any act of concealment while an individual is within the retail establishment to constitute prima facie evidence of intent to shoplift. 12 Therefore, observations of an individual placing items in his or her bag or pocket, or discoveries of merchandise concealed on the individual, will constitute prima facie evidence of an intent to steal the subject merchandise. 13 What is particularly challenging about this presumption is the definition of the term concealment. The statute itself defines concealment in the following way: although there may be some notice of its presence, it is not visible through ordinary observation. 14 This has been interpreted broadly to include situations where a suspect is actually wearing an item that is visible. 15 A shoplifting conviction in municipal court carries a maximum of six months in jail. 16 If a person is convicted of a third or subsequent shoplifting offense, he or she must serve a mandatory minimum sentence of 90 days. 17 The municipal court may impose a fine not to exceed $1,000, and may require the defendant to pay restitution if necessary. 18 In addition, the defendant will be sentenced to a term of community service, depending on whether it is a first, second, or third offense. 19 Determination of Immigration Status Establishing a client s immigration status is of paramount importance. Investigation into the status must be complete, as an initial representation may be inaccurate. Further, the client may have unknowingly acquired or derived citizenship. The law governing citizenship is complex, and varies depending on date of birth, date of naturalization, or the date of a parent s naturalization. If a client is unaware of or ambiguous about his or her legal status, or is unable to produce any documentation regarding immigration status, it would be prudent to have the client consult an immigration expert in order to obtain a reliable picture of his or her exposure to immigration concerns. If a client is not a citizen, the next step is to determine his or her immigration status. A lawful permanent resident (LPR) is a noncitizen who has legally been admitted to the United States to live or work permanently. Most lawful permanent residents should have a card, commonly referred to as a green card, that says Permanent Resident Card. The next class of noncitizens are individuals who are in the United States legally, but have a temporary status (TR). This includes individuals who are refugees or persons granted asylum that have not applied to be LPRs yet or do not yet qualify to become LPRs. This class also includes individuals who are in the United States on temporary student, work or travel visas. Finally, there are clients who are simply in the country illegally. Notably, a client who is in the country illegally may be deported for that reason alone. Immigration Consequences of a Shoplifting Conviction Removal /Deportation Removal and deportation proceedings only apply to individuals who are LPRs. Importantly, if a LPR has no criminal history, one shoplifting conviction in municipal court will not result in deportation. Shoplifting has repeatedly been defined as a crime involving moral turpitude under the Immigration and Nationality Act. 20 Generally, a LPR will only become deportable for one conviction of a crime involving moral turpitude if that offense is committed within five years after the LPR was admitted into the United States and the LPR is sentenced to confinement for one year or more. 21 Significantly, because a shoplifting conviction in municipal court can only result in a sentence of up to six months, deportation will not be triggered by one municipal shoplifting conviction. If the LPR, however, has any prior convictions of crimes involving moral turpitude, a subsequent shoplifting conviction will render him or her deportable. Generally, a LPR becomes deportable for two convictions of crimes of moral turpitude, regardless of when the offenses are committed after admission into the United States, and regardless of the length of sentence imposed on each. 22 If, however, the two charges arose out of a single scheme of criminal misconduct, the subsequent shoplifting conviction will not trigger removal. If a LPR client has a prior conviction, the prior offense should be evaluated to determine whether it is a crime involving moral turpitude. Although moral turpitude has not been clearly defined, the United States Court of Appeals for the Third Circuit has stated that it involves conduct that is inherently base, vile, or depraved; contrary to the accepted rules of morality and the duties owed other persons, either individually or to society in general. 23 A range of offenses have been found to involve moral turpitude, such as crimes involving unjustified violence, sexual crimes, arson, destruction of property and crimes involving fraudulent conduct. Inadmissible/Excludable Grounds of inadmissibility apply to all noncitizens. A TR must be concerned 20 NEW JERSEY LAWYER December 2010

21 with inadmissibility, because if he or she is determined inadmissible he or she will potentially be prevented from remaining in the United States legally. In addition, in order to become a LPR a TR must not be inadmissible. Further, a TR or LPR who is deemed inadmissible is barred from establishing good moral character, which is required for obtaining relief under many immigration laws. 24 For example, a TR must show good moral character to apply for cancellation of removal / deportation. 25 Moreover, in order to become a naturalized citizen an LPR must show good moral character for five years prior to applying. 26 In addition, an LPR should be concerned with inadmissibility in the event that he or she travels abroad. An LPR will generally be denied re-entry into the United States if he or she is found to be inadmissible. Generally, one shoplifting conviction in municipal court will not trigger inadmissibility for a noncitizen. A noncitizen convicted of committing one crime involving moral turpitude usually triggers inadmissibility unless the offense qualifies under the petty offense exception. 27 A single conviction will qualify under the petty offense exception if the maximum penalty for the offense does not exceed imprisonment for a year and the actual sentence given does not exceed six months. 28 Remember, this exception only excuses inadmissibility, not removal. Because a shoplifting conviction in municipal court carries a maximum sixmonth sentence, one shoplifting conviction will not trigger inadmissibility. Notably, even if a shoplifting conviction is avoided, immigration consequences may be triggered. A conviction of a crime involving moral turpitude is not required in order to find a person inadmissible if at or prior to entry the noncitizen formally admitted to committing a crime involving moral turpitude, or admitted to acts which constitute the essential elements of such a crime. 29 This may be significant if a defendant pleads to a municipal ordinance violation, because a noncitizen s formal admission of factual elements of an offense in that plea may qualify the act as a crime of moral turpitude and the record might be used as a ground for inadmissibility. Moreover, because the petty offense exception is contingent upon the factual foundation established for the offense, as opposed to the actual offense for which the person is convicted, a defendant should consider avoiding a plea allocution that involves a specific dollar amount that would be indicative of a more significant offense. For example, if the value of the merchandise allegedly stolen exceeds $500 and a defendant enters a plea based on that factual basis, the defendant is potentially admitting to a third-degree shoplifting offense, which carries a maximum sentence of five years. As such, a noncitizen would be unwittingly allocuting to an offense that would not qualify under the petty offense exception. Significantly, probation is not considered a sentence of imprisonment. Therefore, although the court may place a defendant on probation for one year, the sentence would not transform a shoplifting offense into a crime involving moral turpitude that falls outside of the petty offense exception. Practice Tips It is paramount to advise clients to be truthful in disclosing the existence of a criminal history. Although lack of candor alone may not constitute grounds for removal or inadmissibility, individuals who apply for a visa, change in citizenship status or attempt re-entry will face inquiry into all convictions and candor will be a consideration. As discussed above, a simple municipal shoplifting conviction will not typically trigger inadmissibility; however, a client s failure to reveal the existence of the offense when required may result in more severe consequences. Notwithstanding alternatives, if a conviction is unavoidable a noncitizen may be eligible to obtain relief from removal. This area of law is complex, and is best suited to experienced immigration attorneys. Finally, due to the constant revisions of the law, it is important to focus on the details and particulars of a client s immigration background and criminal background whenever handling a matter where immigration consequences may be involved. If certain offenses were committed under previous immigration statutes, a client may be subject to distinct consequences, and may be in a position to avail him or herself of alternative forms of relief. In conclusion, noncitizen defendants facing shoplifting and other criminal code offenses venued in municipal court are not immune to profound immigration consequences. Appropriate attention must be paid to the collateral consequences these clients face. Understanding the impact of disposition options is the most effective means to avoid dire results. Endnotes 1. Padilla v. Kentucky, 139 S. Ct (2010). 2. Id. at State v. Nunez-Valdez, 200 N.J. 129 (2009). 4. Id. at Id. at N.J.S.A. 2C:20-11(b)(1). 7. N.J.S.A. 2C:20-11(b)(2). 8. N.J.S.A. 2C:20-11(b)(3). 9. N.J.S.A. 2C:20-11(b)(4). 10. N.J.S.A. 2C:20-11(b)(5). 11. N.J.S.A. 2C:20-11(b)(6) C:20-11(d). 13. Id C:20-11(a)(6). 15. See, e.g., Henry v. Shopper s World, 200 N.J. Super. 14, 18 (App. Div. 1985) (holding that concealed merchandise NEW JERSEY LAWYER December

22 need not be limited to merchandise which is hidden or out of sight and may be construed as applying to items in plain view but worn or carried as thought they had been purchased ). 16. See N.J.S.A. 2B:12-17 (providing the municipal court with jurisdiction over disorderly persons offenses and petty disorderly persons offenses); N.J.S.A. 2C:43-8 (providing the maximum sentences of six months imprisonment for disorderly persons offenses and 30 days imprisonment for petty disorderly persons offenses). Technically, a municipal court can have jurisdiction over a fourth-degree shoplifting charge, which would provide for a longer sentence of imprisonment. However, a municipal court only has jurisdiction over a fourthdegree shoplifting charge if the person charged with the offense waives indictment and the right to a trial by jury in writing. N.J.S.A. 2B: N.J.S.A. 2C:20-11(c). 18. N.J.S.A. 2C: N.J.S.A. 2C:20-11(c). 20. See, e.g., Price v. Keisler, 251 Fed. Appx. 703 (2d Cir. 2007) (explaining that a New Jersey conviction for shoplifting was a crime involving moral turpitude) U.S.C. 1251(a)(4) U.S.C. 1227(a)(2)(A). 23. Mehboob v. Attorney General of U.S., 549 F.3d 272 (3d Cir. 2008) U.S.C. 1101(f)(3) U.S.C. 1229(b)(1)(B) U.S.C. 427(a) U.S.C. 1182(a)(2)(A)(ii) U.S.C. 1182(a)(2)(A)(ii) U.S.C. 1182(a)(9). John E. Hogan is a shareholder at Wilentz, Goldman & Spitzer P.A. in Woodbridge. He is a member of the firm s criminal defense/civil rights department and appellate practice group, and practices in all areas of criminal defense, administrative matters and general litigation. Amy B. Herbold is an associate at the firm, and is assigned to the firm s criminal defense/ civil rights department. She focuses her practice in criminal defense and civil rights litigation. 22 NEW JERSEY LAWYER December 2010

23 Post-Conviction Relief in the Municipal Courts Why is it Important? by Christopher Baxter Although the vast majority of municipal court matters involve only quasi-criminal traffic offenses, some of these offenses carry significant periods of incarceration for repeat offenders. One example is the driving while suspended statute, 1 which was amended in Previously, it allowed for 10 days incarceration for third or subsequent offenders. The 2002 amendments now allow for a stacking of an additional 10 days incarceration for every offense beyond the third offense when the conviction is in conjunction with a point-assessed moving violation. It is not uncommon to see habitual suspended drivers exposed to significant jail time in the municipal court as a result of this statutory amendment. In addition, the New Jersey driving while intoxicated (DWI) statute, 2 imposes a 180-day period of incarceration for third or subsequent offenders. In 2004, Michael s law 3 was passed authorizing significant changes with respect to sentencing options for third or subsequent offenders. Michael s law eliminated work release and community service as sentencing options in lieu of straight jail time for these offenders. In addition, weekend jail time, while statutorily permitted and supported by at least one published Law Division case, is widely disfavored by the municipal bench, who discourage such periodic incarceration. In this environment, it is not surprising that postconviction relief (PCR) in the municipal courts has received more attention from practitioners who seek to minimize their client s jail exposure as a result of repeat offender status. Is PCR Different Than a Motion to Vacate? Post-conviction relief applications in municipal court are governed by Rule 7:10-2, which provides the exclusive means of challenging a judgment rendered upon conviction. 4 The rule is to be distinguished from Rule 7:6-2(b), which allows for the withdrawal of guilty pleas upon motion. With the exception of Laurick-styled motions, 5 applications under either rule have the same net effect: The defendant s guilty plea is vacated. There are, however, significant differences between the rules. Rule 7:6-2(b) does not contain a time limit within which the defendant may move to withdraw his or her plea. In addition, the New Jersey Supreme Court has recently held that a withdrawal of a plea be corroborated by factual evidence of the defendant s potential innocence. 6 On the other hand, PCR motions are, for the most part, governed by a five-year time limit. In addition, only a few grounds for post-conviction relief require both a showing of error and factual corroboration that the error may have changed the outcome of the case. With these distinctions in mind, outlined below are some of the fundamentals of Rule 7:10-2. General Procedural Requirements Post-conviction relief actions are essentially civil actions, and the equivalent of federal habeas corpus petitions. As such, the petitioner bears the burden of production of relevant grounds to support his or her petition. In addition, the petitioner bears the burden of proof by preponderance of the evidence. 7 Generally, a defendant moving for post-conviction relief may not collaterally attack issues that might reasonably have been raised in a direct appeal. The issues to be raised through post-conviction relief are those that are outside of the trial record. A successful PCR motion vacates the conviction, and the parties are returned to the status quo ante. An exception to this remedy is contained in Rule 7:10-2(g), involving nonenhancement orders from custodial sentences. The PCR procedure is initiated when a party files a verified petition with the court of original jurisdiction specifying the facts upon which the claim for relief is based and the legal grounds on which the particular relief is sought. The contents of this verified petition must strictly comply with the NEW JERSEY LAWYER December

24 requirements of Rule 7:10-2(f). While not required, a supporting memorandum of law may be submitted. Because of the complexity of most post-conviction relief applications, a memorandum of law is strongly recommended, particularly if there is a likelihood the municipal court judge s ruling will be appealed. Grounds for Relief Under Rule 7:10-2(c) Under the current municipal court rule, there are four general categories that constitute grounds for relief on a PCR application. First, Rule 7:10-2(c)(1) allows a petitioner to assert a substantial denial in the conviction proceedings of the defendant s rights under the U.S. Constitution or New Jersey s Constitution or laws. The most common example is the absence of a knowing and voluntary plea during the conviction proceedings. 7 In the defendant s conviction proceedings, he or she must be advised of the penalties that can be imposed upon conviction. In addition, a defendant must be cognizant, at the time of his or her plea, that there is a waiver of his or her trial rights, including the right to confront witnesses and call witnesses on his or her behalf. The sentencing court must also assure that a defendant is entering a plea voluntarily and without coercion or unclear mind. Note that denial of the right to counsel is a substantial denial of the defendant s constitutional right only when it exists as a constitutional right. 8 When the defendant s right to counsel is not a constitutional right but is denied such as in traffic matters a non-enhancement order may be sought pursuant to Rule 7:10-2(g). A second ground for relief is contained in Rule 7:10-2(c)(2). Post-conviction relief is available where the sentencing court lacked jurisdiction to impose the judgment rendered on the defendant s conviction. In municipal court, there are two forms of jurisdiction subject matter jurisdiction and territorial jurisdiction. Subject matter jurisdiction gives the municipal courts enforcement powers over the township s ordinances, state traffic violations, disorderly persons offense, fish and game violations, and certain boating offenses. 9 Municipal courts are also subject to territorial jurisdiction limits. 10 Except for the instances noted in the Public Transportation Act, 11 the court is limited to presiding over matters that occurred within the territorial boundaries of the town where the case is venued. Third, Rule 7:10-2(c)(3) allows relief when the imposition of the sentence is in excess of or otherwise not in accordance with the sentence authorized by law. In essence, a PCR applicant may seek redress for an illegal sentence. The concept of an illegal sentence was twice discussed thoroughly by the New Jersey Supreme Court. 12 Rule 7:10-2(c)(4) allows a fourth catch-all basis for relief based on any ground previously available as a basis for collateral attack on a conviction by habeas corpus or any other common law or statutory remedy. This broad PCR category facilitates some of the most common PCR applications, including claims of ineffective assistance of counsel, 13 failure of the sentencing judge to elicit a factual basis, 14 and failure of the state to provide Brady materials. 15 A moment s pause is necessary to address two of these areas: ineffective assistance of counsel and lack of a factual basis. PCR applications based on ineffective assistance of counsel require the petitioner to satisfy a two-part test: first, that predecessor counsel s performance was deficient; second, that the deficient performance prejudiced the defendant. 16 An ineffective assistance of counsel PCR application must contain a detailed analysis of the available discovery to determine the deficiencies and the prejudicial effect of predecessor counsel s performance. 17 While the PCR rule only requires inclusion of records related to the underlying conviction, such as copies of the complaints, applications for assignment of counsel, waiver forms and transcripts, it may be beneficial to attach the discovery that supports the defendant s claim of both deficient performance and the prejudicial effect of predecessor counsel. There is a common misconception in the defense bar that a municipal judge is constitutionally compelled to obtain a factual basis from a defendant. This is inaccurate. The requirement is procedural in nature only. 18 A second misconception among the defense bar is that the municipal judge is compelled to obtain the factual basis directly from a defendant. Rule 7:6-2(a)(1) allows a municipal judge to personally address a defendant to obtain a factual basis. However, the rule also allows the judge to make inquiry of others in the court s discretion. 19 Whenever available, counsel should obtain a transcript of a defendant s conviction proceedings as a first step in analyzing which of the four PCR grounds the defendant can assert in his or her claim for relief. Time Limitations for PCR Applications Unless a PCR application is made to correct an illegal sentence or the delay in a PCR filing was due to the defendant s excusable neglect, the petition must be brought within five years after entry of the judgment of conviction. 20 While at first blush the general five-year limitation appears exclusionary, there are actually two explicit and three implicit exceptions to the five-year time limit. Two Explicit Exceptions There are two explicit exceptions to the five-year bar in the PCR rule the existence of an illegal sentence under 24 NEW JERSEY LAWYER December 2010

25 Rule 7:10-2(b)(1) or a defendant s excusable neglect under (b)(2). The New Jersey Supreme Court has made clear in two opinions that an illegal sentence exists only in three limited circumstances: first, when the imposition of a penalty exceeds the statutory limit; 21 second, when the sentence is not in accordance with law because it does not satisfy pre-sentence conditions; 22 and third, where there is improper acceptance of a guilty plea with errors of constitutional dimension. 23 The second explicit exception excusable neglect covers a myriad of scenarios that are extremely fact sensitive. 24 It should be noted that circumventing the five-year bar by alleging excusable neglect on a client s behalf is generally not viable when a defendant is filing a Laurick-styled application, because it is difficult to imagine how any delay in filing a Laurick PCR could be excused on these grounds since a defendant would clearly know whether his prior conviction provided the basis for relief, and, pursuant to the rule, the petition is usually brought at the time of a subsequent conviction. 25 Three Implicit Exceptions As discussed earlier, there are three implicit exceptions to the five-year time limit contained in Rule 7:10-2. The first of these is contained in Rule 1:1-2, which is commonly referred to as the relaxation rule. This rule of general construction allows relaxation of or dispensation with any court rule when necessary to avoid an injustice. To circumvent the five-year limit using Rule 1:1-2, a defendant needs to show exceptional circumstances necessary to avoid an injustice. 26 The Mitchell Court indicated that factors to consider under the relaxtion rule are the extent and cause of the delay in the PCR filing, the prejudice to the state caused by this delay, and the importance of the petitioner s claim in determining whether there has been an injustice sufficient to relax the time limits. 27 Laurick-styled applications are generally permitted beyond the five-year period. In State v. Bringhurst, the Appellate Division indicated that because of the unique nature of a Laurick PCR petition, a defendant s burden to justify relaxation of [the] five year time limit, at least with respect to the reason for the delay, should be significantly less than the proof of the exceptional circumstances normally required. 28 The second implicit exception to the five-year time limit under Rule 7:10-2 allows for a late application to be considered when a defendant s constitutional rights are seriously infringed upon in the conviction proceedings. 29 This implicit exception relates directly back to Rule 7:10-2(c)(1), and covers circumstances such as a trial judge s failure to obtain a knowing and voluntary plea. Again, the existence of a transcript can be of great benefit to the PCR applicant in analyzing whether an error of constitutional dimension in the plea proceedings can be substantiated. While a defendant may enjoy a Sixth Amendment right to counsel, the law allows for waiver of this constitutional right, and for a defendant to proceed pro se. A municipal judge is required to perform a painstaking inquiry of a defendant to obtain a knowing and intelligent waiver of the right to counsel. 30 So important is this process that the New Jersey Supreme Court added a new municipal court rule in 2008, which essentially codifies case law and allows waiver of counsel only after an explanation by the judge of the range of penal consequences, an advisement that the defendant may have defenses, and a warning that there are dangers and disadvantages inherent in defending oneself. 31 A third and final implicit exception allowing limited circumvention of the five-year bar involves PCR applications under Rule 7:10-2(g)(the lack of counsel and the lack of Rodriguez rights allows relief from an enhanced custodial term based on a prior conviction). New Jersey courts have recognized that while PCR matters involving prior uncounseled pleas are a unique species of application, the five-year rule still applies. 32 Although Bringhurst stands for the proposition that the five-year bar still applies, the holding has substantially relaxed the standard necessary to circumvent the bar. At least with respect to the cause for the delay, a showing of exceptional circumstances has been dispensed with. Rule 1:1-2 is the only appropriate basis for a defendant to circumvent the five-year bar in Laurick-styled application. Petitions for Relief Under Rule 7:10-2(g) PCR applications under the aforementioned rule are commonly referred to as Laurick-styled applications based on the seminal case of State v. Laurick. 33 In Laurick, the New Jersey Supreme Court held that a prior uncounseled DWI conviction without proper court advisories regarding attorney rights may not be used to increase a defendant s loss of liberty when a defendant is being sentenced as a repeat offender under the DWI laws. The history behind Laurick goes back to the New Jersey Supreme Court opinion in Rodriguez v. Rosenblatt. 34 The Rodriguez Court recognized that the federal constitutional guarantee of a jury trial was inapplicable to petty offenses. Therefore, there would be no inflexible constitutional compulsion to assign counsel without cost to indigents charged in the municipal courts with disorderly persons or other petty offenses. Nevertheless, the Rodriguez Court indicated that considerations of fairness dictate that as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequences of magnitude without first having had due and fair opportunity to have counsel assigned without cost. 35 NEW JERSEY LAWYER December

26 Since Rodriguez, municipal court judges have been procedurally required to advise a defendant of their right to counsel, and if indigent, provide counsel at no cost. Recitation of these rights in commonly referred to as a defendant s Rodriguez notice. Since Rodriguez, the law has evolved to require that a defendant individually receive his or her Rodriquez rights notice. For instance, the New Jersey bench book for municipal courts, which was revised January 1987, directs that each defendant be informed of his or her Rodriguez rights individually. 36 There is also a memorandum to municipal court judges from the New Jersey Supreme Court emphasizing the importance of individual advisement when defendants are indigent and face a potential consequence of magnitude. 37 In order to successfully pursue a Laurick-styled PCR application, petitioners must prove by a preponderance of the evidence that they were not provided their Rodriguez advisement. As an additional requirement, non-indigent defendants must show that they were unaware of their right to counsel. Moreover, nonindigent defendants must show that the absence of counsel had an adverse impact on the case. Traditionally, this last element requires a defendant to obtain discovery and make a showing that defenses were available that would have ultimately changed the outcome of the case. 38 Indigent defendants, on the other hand, are not required to show that the absence of counsel materially prejudiced their case. As long as an indigent defendant can prove that his or her Rodriguez rights were not given, and that counsel was not offered without cost, the PCR application must prevail. 39 There are practical considerations when PCR applications involve very old convictions. Often, there is no transcript to support a defendant s allegation that Rodriguez rights were not given. Often, non-indigent defendants are unsuccessful in obtaining discovery in older matters since those documents have been destroyed. In such cases, practitioners should make every effort to obtain the front and back of the court summons utilized during the defendant s conviction proceedings because there is a common theme in the Laurick line of cases holding that the back of the summons can be controlling in the court s determination of whether Rodriguez rights were given. For instance, in Laurick the Supreme Court specifically indicated that in the future, the hard-copy judgment of conviction in DWI cases should contain a notation by the municipal court that the Rodriguez notice has been given and counsel waived. That notation will have presumptive correctness. 40 The importance of the back of the summons was also highlighted in State v. Bringhurst, where the court noted that it would be unfair to allow relief for every defendant who made unspecific allegations they were entitled to relief because of the lack of Rodriguez rights. If that were the rule, the prejudice to the state would be obvious. Once the transcript was destroyed, the state would have no way to combat the defendant s bald assertions. As a quid pro quo, where the state was able to produce the actual summons to refute the defendant s assertions, that document should be given significant probative weight. 41 To the extent counsel is able to obtain the back of the summons and there is no notation that Rodriguez rights have been given, as mandated by State v. Laurick, and the defendant s recollection is that no such Rodriguez rights were given, then the argument can be made that case law gives presumptive correctness to the back of the summons, and relief should be granted. The argument is, of course, a double-edged sword in cases where there is a notation the defendant was advised of his or her Rodriguez rights. Unlike the other sections of Rule 7:10-2, a successful petitioner in a Laurick-styled application is not entitled to vacate the underlying conviction and return to the status quo ante. All a successful petitioner is entitled to under Rule 7:10-2(g) is an order that the underlying conviction may not be used to enhance the custodial aspect of any future conviction for the same type of offense. Under this section, relief is also available for repeat suspended driver and shoplifting offenders who have prior uncounseled convictions. 42 Endnotes 1. N.J.S.A N.J.S.A L. 2003, c. 315, 2, eff. Jan. 20, R. 7:10-2(b)(3). 5. State v. Laurick, 120 N.J. 1 (1990) and R. 7:10-2(g) allow a unique species of PCR applications. If a petitioner is successful under this subsection of the rule, the conviction is not vacated. It is merely ordered that the conviction not be used to enhance any subsequent convictions for purposes of incarceration. 6. State v. Preciose, 129 N.J. 451, 462 (1992). 7. McCarthy v. United States, 394 U.S. 459 (1969). 8. Argersinger v. Hamilton, 407 U.S. 25 (1972). 9. N.J.S.A. 2B: N.J.S.A. 2B: N.J.S.A. 27:25-1 et seq. 12. State v. Mitchell, 126 N.J. 565 (1992) and State v. Murray, 162 N.J. 240 (2000). 13. State v. Fritz, 105 N.J. 42 (1987). 14. State v. Barboza, 115 N.J. 415 (1989). 15. Brady v. Maryland, 373 U.S. 83 (1963). 16. State v. Fritz, supra, 105 N.J. at 52 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984). 17. The second prong of the Strickland test that the defendant show the predecessor counsel s deficient performance worked a prejudice on the 26 NEW JERSEY LAWYER December 2010

27 defendant can be dispensed with when circumstances are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Strickland, supra, 466 U.S. at 692; United States v. Cronic, 466 U.S. 648, 658 (1984) (citing cases); Quintero v. Bell, 256 F.3d 409, 414 (6th Cir. 2001). These cases generally involve counsel s failure to appear or failure to stay awake during proceedings. In such cases, there is a finding of per se ineffective assistance of counsel. 18. State v. Barboza, 115 N.J. 415 (1989); R. 7:6-2(a)(1); but see State v. Owczarski, 236 N.J. Super. 52, (Law Div. 1989) (a published Law Division opinion from former Burlington County Assignment Judge Martin Haines holding that failure of a municipal judge to obtain a factual basis in conjunction with a lack of a knowing and voluntary plea constitutes an illegal sentence that can be reopened at any time); State v. Mitchell, supra, 126 N.J. at 577 and 587 (if in tandem with a lack of factual basis there is a lack of knowing and voluntary plea, then there arises issues of constitutional dimension); cf. McCarthy v. United States, supra, 394 U.S. at State in the Interest of T.M., 166 N.J. 319, 327 (2001). 20. R. 7:10-2(b)(1) and (2). 21. State v. Murray, supra, 162 N.J. at Id. 23. State v. Mitchell, supra, 126 N.J. at See, e.g., State v. McIhenny, 333 N.J. Super. 85 (App. Div. 2000). 25. State v. Bringhurst, 401 N.J. Super. 421, 432 (App. Div. 2008). As a side note, a practitioner outside the five-year bar could advance the argument that a judge s failure to take a factual basis is violative of the procedure contained in Rule 7:6-2(a)(1) and, therefore, renders the plea void ab initio. Theoretically, this would allow a defendant to file a motion for withdrawal of the plea under 7:6-2(b) after sentence to correct this manifest injustice. This presents an interesting argument for those practitioners who can find no other explicit or implicit basis to circumvent the five-year bar, as there is no such bar for withdrawal of guilty pleas under Rule 7:6-2(b). A close reading of State v. Slater, supra, is urged if an application is made to withdraw a plea after sentencing as there are additional showings a defendant must make to succeed. 26. State v. Mitchell, supra, 126 N.J. at 576, Id. at 580 (requiring a showing on the question of guilt or the propriety of sentence or that a significant liberty interest be jeopardized and that such a showing be supported by more than base allegations). 28. State v. Bringhurst, supra, 401 N.J. Super. at McCarthy v. United States, 394 U.S ; State v. Mitchell, 126 N.J. 565, ; State v. Owczarski, 236 N.J. Super. 52, (Law Div. 1989). 30. State v. Lach, 212 N.J. Super. 466 (App. Div. 1986); State v. Reddish, 181 N.J. 553 (2004); U.S. v. Welty, 674 F.2d 185 (3rd Cir. 1982). 31. R. 7: State v. Bringhurst, supra, 401 N.J. Super. at State v. Laurick, 120 N.J. 1 (1990) N.J. 281 (1971). 35. Id. at Id. at C Memorandum from Chief Justice Wilentz Re: R. 3:4-2 Feb. 25, State v. Schaenwald, 400 N.J. Super. 350 (App. Div. 2007). 39. Id. 40. State v. Laurick, supra, 120 N.J. at State v. Bringhurst, supra, 401 N.J. Super. at 434, State v. Thomas, 401 N.J. Super. 180 (Law Div. 2007). Christopher Baxter is a partner in the firm of Baxter & Kourlesis, PC, in Moorestown. He served as a municipal prosecutor in several communities for 12 years and currently limits his practice to representation of those charged with DWI and criminal offenses. NEW JERSEY LAWYER December

28 Technical Note Examining Downloadable Digital Data Logs by Samuel L. Sachs Examination of downloadable data from an Alcotest instrument on which a defendant was tested is a critical part of trial preparation. The state bears the burden to show that the device was in working order. 1 But to be certain that an Alcotest is functioning properly, it is important to verify that the data recorded for an individual test corresponds with the data that appears on the alcohol influence report (AIR) without corruption. As recognized in State v. Chun, the Alcotest 7110 Mark III- C is an electro-mechanical instrument, which is supervised by an embedded computer running on software. 2 The source code on which the instrument runs is extremely complex comprising 53,774 lines of code or approximately 896 pages. 3 Data logs reside in the memory of the Alcotest until it is downloaded by a state breath test coordinator. This data is stored in a common computer format and is readily readable by several commercially available programs. AIR breath test data includes 310 fields of information. No software is error free; this is common knowledge in the industry. 4 Operability of an imbedded computer and the electro-mechanical hardware that it supervises can only be determined by monitoring how an instrument performs its intended tasks and how it performs those tasks repetitively over time. Although the Supreme Court determined the Alcotest is scientifically reliable, it is clear that anomalies exist as a result of software errors. The existence of such anomalies 5 would be apparent in downloaded data, but would not necessarily be apparent on a printed AIR, because there is information in the data logs relevant to each test performed that does not appear on an AIR. Specifically and most importantly, there are two diagnostic checks a pre-test diagnostic check and a post-test diagnostic check performed by the Alcotest and reported in columns 307 and 308 of the breath test data logs. According to the manufacturer, Draeger Safety, Inc., these checks verify that test records are correct and that all diagnostics checks were performed. Appearing in column 309 of the breath test data logs is a record of any errors that may occur. The Alcotest operator s manual contains a long list of possible errors that may be recorded in this column. The data stored within the Alcotest memory also includes a time stamp of each event that occurred within the breath testing sequence, the individual inferred (IR) and electro-chemical (EC) results, and any aborted tests. 6 By examining this data, it is possible to ascertain whether an instrument is executing reliably over a period of time and whether anomalies repeatedly occur or have occurred in a particular defendant s testing sequence. Recognizing the necessity for the defense to examine the data downloads and upon recommendation of the special master, the Supreme Court in State v. Chun in order Section 3B explicitly ordered that the state create and maintain a centralized state-wide database, comprised of downloaded Alcotest results, and shall make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel. 7 Although the centralized database has not been established, data downloads presently exist for each individual instrument and contain potentially exculpatory evidence, which can be easily and inexpensively provided. The Supreme Court explicitly stated that defendants should have access to previously downloaded centrally collected data. 8 Recognizing this obligation, the New Jersey attorney general has promulgated instructions 9 for providing this data to defense attorneys and their experts. The Appellate Division has also recognized the obligation of the state to provide all historical digital data log downloads. 10 The examination of this data is essential to be certain that 28 NEW JERSEY LAWYER December 2010

29 any particular Alcotest instrument is operating properly. Thomas A. Brettell, Ph.D., forensic laboratory director of the Office of Forensic Sciences of the New Jersey State Police, testified during State v. Chun about comparing printed AIRs to downloaded data. He examined the downloaded data, in part, to verify operability of Alcotest instruments in Middlesex County. Brettell provided tabulations and analysis of these results in a document titled Report on the Status of the Use of the Alcotest 7110 Mark IIIC Instrument in the New Jersey State Breath Alcohol Program. The state introduced four exhibits 11 from this report during the first hearing in State v. Chun. Examining the data downloads was proper scientific method for the state, and continues to be proper scientific method for the defense. During the first hearing in State v. Chun, evidence was introduced about Alabama s breath-test program, which exclusively employed the Alcotest 7110 statewide. The rules of the Alabama Department of Forensic Sciences chemical test for intoxication, which were included as an exhibit in Chun, specify that a data pack (data download) be provided to defendants. Based on their review and examination of those data packs, Alabama s Department of Forensic Sciences, as of the time of the first hearing in State v. Chun, had modified their software 23 times, 12 largely to correct problems in their software found from earlier data analysis. Data analysis in New Jersey is no less relevant. Endnotes 1. State v. Chun, 194 N.J. 54, 134 (2008). 2. Id. 194 N.J. at Id., Findings and Conclusions Submitted to Supreme Court: February 13, 2007 (First Special Master s Report or SMR1] at 67. See also SMR1 Exh. D Id., SMR1 at Id., Supplemental Findings and Conclusions Submitted to Supreme Court: November 8, 2007 (Second Special Master s Report or SMR2) at Id., SMR2 at Id., 194 N.J. at 153 (Order, par. 3.B). 8. Id. 194 N.J. at 90, n Memorandum of April 29, 2008 from Gregory A. Paw, director, Division of Criminal Justice, Department of Law and Public Safety, p State v Maricic, Dkt.No. A T4 (2010) (unreported). 11. These exhibits were designated S-37, S-38, S-39, and S-40 in the initial hearings for State v. Chun. 12. See Exh. D100 from the initial hearings in State v. Chun. Samuel L. Sachs, a former municipal court judge, was lead defense attorney for technical issues in State v. Chun. Registered to practice before the U.S. Patent and Trademark Office since 1976, he has practiced patent law in the mechanical; electromechanical; electrical; and bio-medical arts, and as the principal of Alcocoden Associates, LLC, has examined digital data log downloads from over 200 Alcotest instruments, including more than 45,000 breath tests. NEW JERSEY LAWYER December

30 Legislating Human Behavior Cell Phones and Pedestrians by Angela Foster In New Jersey, a municipal court is a court of limited jurisdiction with responsibility over cases that occur within the boundaries of the community, including motor vehicle and parking tickets, minor criminaltype offenses and municipal ordinance offenses. Typical motor vehicle violations include use of a cell phone while driving; failure to wear a seatbelt; speeding; failure to observe traffic signals; failure to yield to pedestrians or vehicles while entering or leaving the highway; etc. A quick review of the New Jersey bills that were introduced in the last decade indicates that approximately 75 related to pedestrian crossing and cell phone usage. In 2009, more than 25 percent of all traffic fatalities in New Jersey were related to pedestrians. 1 Statistics also reveal that 20 percent of car accidents on U.S. roadways involved distracted drivers, including those using cell phones while driving. 2 In New Jersey, 112,401 tickets were written for cell phone violation from October 2009 through September This article explores the impact of New Jersey legislative bills on pedestrian crossing and cell phone laws. Cell Phone Laws In 2004, New Jersey was one of the first states to ban the use of hand-held cell phones while driving. 4 Since that time, many states have banned the use hand-held cell phones while driving. 5 Prior to 2007, a cell phone violation was a secondary offense, which provided that a police office could ticket a driver only if he or she was first observed violating another law. Today, the use of a cell phone while driving is a primary offense, which means a police officer can stop a driver solely if he or she is using a hand-held cell phone while driving. 6 However, New Jersey drivers can use a hands-free cell phone if its placement does not interfere with the operation of the vehicle. In 2008, New Jersey expanded the cell phone law to include text messaging while driving. The same rules and fines for the ban on using a hand-held cell phone while driving apply to text messaging. However, there are certain exceptions to the use of hand-free cell phones, including age and licensure. For example, in accordance with the Graduated Driver License Law, (GDL) 7 New Jersey drivers under the age of 21 with learner s permits or probationary licenses are prohibited from using cell phones, texting devices and other hand-held or hands-free wireless electronic devices, including ipods, while driving. Over the past five years, fatal car accidents involving teenage drivers have declined by nearly 33 percent, which may be attributed to stricter GDL laws. 8 Interestingly, of the drivers reportedly distracted during a fatal crash in 2009, the 30- to 39-year-old drivers were the group with the great est proportion distracted by cell phones. Cell phone distrac tion was reported for 24 percent of the 30- to 39-year-old distracted drivers in fatal crashes and 22 percent for those in the under 20-year-old group involved in fatal crashes. 9 Kyleigh s Law On May 1, 2010, New Jersey enacted Kyleigh s Law, 10 which requires all teenage drivers with probationary licenses to display two removable, transferable, highly visible, reflective decals, one on each license plate of the vehicle they are driving; failure to display the decals carries a $100 fine. The decals are designed to aid police officers in enforcing cell phone and other restrictions under the GDL Law. Kyleigh s Law is named for Kyleigh D Alessio, a 16-year-old student from Long Valley, who died in a motor vehicle crash involving a probationary license holder (formerly called provisional) who was in violation of the passenger restriction under the GDL law. Public Transit Concerns On Sept. 12, 2008, approximately 140 people were injured and 25 killed when a passenger train crashed head-on into a 30 NEW JERSEY LAWYER December 2010

31 freight train in Los Angeles. Subsequent reports indicated the crash was the result of the failure of the passenger train driver to stop at a red light, presumably because he was distracted by text messaging. In response to the L.A. commuter crash, the New Jersey Senate and Assembly recently passed Assembly Bill 407, 11 which prevents public transit drivers from using a cell phone while driving. Specifically, A-407 prohibits public transit drivers from using wireless telephones or electronic communication devices while their vehicles (buses, trains or cars) are moving. Under A-407, the use of a wireless telephone or electronic communication device includes, but is not be limited to, talking or listening to another person on the telephone, text messaging, or sending an electronic message via the wireless telephone or electronic communication device. However, an operator of a moving public vehicle may use a wireless telephone or electronic communication device in the event of an emergency or when radio communication failure occurs. Violation of A-407 constitutes a disorderly persons offense with fines up to $1,000, imprisonment for six months, or both. Proposed Regulations Currently, the New Jersey cell phone law carries a fine of $100; however, this may soon change. On May 13, 2010, Assembly Bill 2677 was introduced to the Assembly Law and Public Safety Committee to increase the fine for talking or texting on a cell phone while driving from $100 to $200. However, no motor vehicle or automobile insurance eligibility points would be assessed for this offense. Two months later, Senator Richard J. Codey introduced Senate Bill 2181, which not only proposes an increase in fines but also imposes license suspension for talking or texting on a handheld cell phone while driving. S-2181 seeks to increase fines for first-time violators from $100 to $200. A second offense within 10 years would result in a $400 fine, while third and subsequent offenses within 10 years of the first offense would result in a $600 fine plus a 90-day license suspension. In addition, third and subsequent offenders would receive three motor vehicle penalty points. The current cell phone law does not assess points. On May 20, 2010, Senator Raymond J. Lesniak, introduced Senate Bill 1950, also known as the Kulesh and Kubert s Law, which provides a charge of vehicular homicide or assault by vehicle when people are killed or injured by a driver using a hand-held cell phone. Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle recklessly; thus, driving while using a cell phone is recklessly driving. Accordingly, proof that the driver was operating a hand-held cell phone while driving a motor vehicle will give rise to an inference that the driver was driving recklessly. Similar to driving while intoxicated penalties, S-1950 would constitute reckless driving with penalties including: 1) prison time of five to 10 years and fines up to $150,000, or both for second degree; 2) assault by auto is a crime of the fourth degree if serious bodily injury occurs; and 3) disorderly persons offense if bodily injury occurs punishable by up to 18 months imprisonment, a fine of up to $10,000, or both. The bill was named for three New Jersey traffic victims. On Feb. 1, 2006, Helen Kulesh was killed by a person driving and talking on a cell phone. Several years later, David and Linda Kubert saw a motorist in a pickup truck coming toward them driving with his elbows on the steering wheel and his face angled downward. It was later determined that the motorist was text messaging. David and Linda Kubert both lost their left legs as a result of the accident. Pedestrian-Crossing Laws A typical view in mid-spring in New Jersey is a line of geese crossing a road. Traffic will immediately stop and patiently wait until all the geese have crossed the road. In fact, fellow motorists will shun and scorn motorists who fail to yield to the geese. Yet ironically, pedestrians crossing a street often do not receive the same treatment. According to the New Jersey Division of Highway Traffic Safety, since 2004 more than 30,000 pedestrians have been injured in motor vehicle-related crashes statewide and 150 are killed each year on New Jersey streets. In an attempt to lower the number of pedestrian deaths in New Jersey, for the first time in 50 years the pedestrian statute was changed. However, this change did not come easily or quickly. In 2005, A-2605 was enacted into law by amending N.J.S.A. 39:4-36 to impose increased penalties for failing to yield to pedestrians crossing the roadway within a marked crosswalk or within any unmarked crosswalk at an intersection. 12 A-2605 amended the prior law, which stated the failure to yield to a pedestrian could not exceed a fine of $50. After A- 2605, penalties were increased to a $100 fine and 15 days of imprisonment, at the court s discretion. Prior to 2008, motorists were required to yield to pedestrians in crosswalks, but did not have a clear duty to stop and remain stopped. Specifically, the law was ambiguous regarding whether the area within which a pedestrian was protected by a motorist s duty to yield included all or only a portion of the crosswalk. To address this issue, A was introduced, which provided motorists with a duty to stop and remain stopped on or within a lane on the half of the roadway on which the vehicle was traveling. 13 Apparently, this was a standard used in other states, NEW JERSEY LAWYER December

32 including Washington and Oregon, and this would result in better enforcement of the crosswalk traffic laws. A-1329 also removed the possibility of imprisonment for a violation of N.J.S.A. 39:4-36, and provided that a court may impose community service in addition to the prescribed fine. In 2009, S-2479 was introduced to address when the violation of N.J.S.A. 39:4-36 results in serious bodily injury to a pedestrian. 14 Under S-2479, a person convicted of the violation would be subjected to a fine of not less than $100 or more than $500, and 25 days of imprisonment, or a license suspension up to six months, or both, at the court s discretion. As of April 1, 2010, drivers must come to a complete stop and remain stopped for a pedestrian crossing a roadway within a marked crosswalk, or yield the right-of-way to a pedestrian crossing the roadway within an unmarked crosswalk at an intersection. 15 The law requires drivers to come to a complete stop as soon as a pedestrian enters a crosswalk. Previously, the law only required drivers to yield to pedestrians in crosswalks. Now the drivers must stop and remained stopped within a lane on which the vehicle is traveling and allow the pedestrian to cross safely. Similarly, whenever a vehicle is stopped to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle. Today, penalties include an increased fine of $100 to $200; 15 days of community service; and two motor vehicle points. Importantly, consistent with S- 2479, if the violation results in serious injury to the pedestrian, the fine could be up to $500, up to 25 days in jail or a license suspension up to six months, or both. 16 The law also provides that in the event of a collision between a vehicle and a pedestrian within a marked crosswalk, or at an unmarked crosswalk at an intersection, there is a permissive inference that the driver did not exercise due care for the safety of the pedestrian. Under the new law, a pedestrian has a duty to exercise due care. Specifically, a pedestrian must stay at the curb or place of safety and not suddenly walk or run into the path of a vehicle, making it impossible for the driver to yield or stop. Further, a pedestrian not in a marked crosswalk or within an unmarked crosswalk at an intersection, must yield the right-of-way to all vehicles on the roadway. Accordingly, any pedestrian violating these rules could be fined $ Additionally, pedestrians failing to obey pedestrian signals and use crosswalks at signalized intersections can incur a fine of $54, plus court fees for each. Conclusion Each year at least 1.6 million crashes nationwide are caused by drivers talking on their cell phones, while a minimum of 200,000 crashes are caused by drivers who are text messaging while driving. 18 In New Jersey, there were 3,610 crashes involving a motorist using a hand-held cell phone, resulting in 1,548 injuries and 13 deaths since During the same time period, 3,129 crashes involving the use of a hands-free device resulted in 1,495 injuries and six fatalities. In 2009, after a three-year downward trend, the number of pedestrian deaths statewide increased to 157. Surprisingly, the New Jersey Division of Highway Traffic Safety notes that as of July 12 of this year, only 70 pedestrians were killed in motor vehicle-related crashes statewide, compared to 84 for the same time period last year. Perhaps it is too early to determine the actual effect of legislation regarding cell phone and pedestrian laws. However, encouraging results like a 2,100 decrease in the number of tickets written for cell phone violations and reports that New Jersey had the lowest death rate in the nation for teen drivers in 2009 suggest there may be some impact. Endnotes 1. See New Jersey Division of Highway Traffic Safety. 2. See National Highway Traffic Safety Administration Distracted Driving 2009 Report. 3. See New Jersey Division of Highway Traffic Safety. 4. On Jan. 20, 2004, New Jersey amended P.L. 2003, c.310, making it unlawful to use a wireless telephone in a moving vehicle except when the telephone is a hands-free wireless telephone. 5. See Governors Highway Safety Association at 6. On Nov. 2, 2007, New Jersey amended P.L.2003, c.310 (C.39:4-97.3), making a primary motor vehicle offense to use a hand-held wireless telephone or electronic communication device while driving, including using these devices to send a text message. Under the amended bill, motorists could be stopped and ticketed solely for illegally using a handheld wireless telephone or electronic communication device. 7. Individuals who have never had a driver license must complete the MVC s Graduated Driver License (GDL) Program, which introduces driving privileges in phases with a period of supervised driving before getting a basic driver license. See N.J.S.A. 39:3-10, 39:3-13 through 39: See Center for Disease Control & Prevention - Morbidity & Mortality Weekly Report. Oct. 22, See National Highway Traffic Safety Administration Distracted Driving 2009 Report. 10. On Oct. 27, 2008, Senator Fred H. Madden Jr., introduced S-2314 to the Senate Transportation Committee. On May 1, 2010, S-2314 was enacted 32 NEW JERSEY LAWYER December 2010

33 and amended P.L., 2009 c.37 (C.39:3-13.2a), requiring any driver under age 21, who holds a permit or probationary (formerly provisional) driver license, to buy a $4 pair of decals and display them on the top left corner of the front and rear license plates of their vehicles. 11. On Jan. 12, 2010, Assemblyman Patrick J. Diegnan Jr., introduced A- 407 to the Assembly Transportation Public Works and Independent Authorities Committee. On Sept. 30, 2010, A-407 passed the Senate On March 15, 2004, Assemblywoman Linda Stender introduced A to the Assembly Transportation Committee. On May 4, 2005, A-2605 was enacted and amended P.L., 2005, c.86, (R.S.39:4-36), increasing penalties for failing to yield to a pedestrian at a crosswalk to $ On Jan. 8, 2008, Assemblywoman Linda Stender introduced A-1329 to the Assembly Transportation Committee. On Jan. 18, 2010, A-1329 was enacted and amended P.L., 2009, c.319, (R.S.39:4-32, R.S.39:4-36, R.S.39:4-115, and R.S.39:4-144, and repealing R.S.39:4-35), requiring drivers to stop and remain stopped for pedestrians under certain circumstances. 14. On Jan. 13, 2009, Senator Thomas H. Kean Jr., introduced S-2479 to the Senate Transportation Committee. On Jan. 18, 2010, S-2479 was enacted and amended P.L., 2009, c.312, (R.S. 39:4-36), increasing penalties for failing to yield to a pedestrian when pedestrian is seriously injured. 15. N.J.S.A.39:4-32 and N.J.S.A. 39: N.J.A.C. 13: N.J.S.A. 39: millioncrashescausedbydriversusingcellphonesandtexting.aspx. Angela Foster is a member of the editorial board of New Jersey Lawyer Magazine and a patent attorney of the Law Office of Angela Foster, located in North Brunswick, specializing in prosecuting, counseling and licensing intellectual property. She is legislative coordinator for the Middlesex County Bar Association and past municipal public defender for the township of Piscataway. NEW JERSEY LAWYER December

34 Top 25 Cases Affecting Municipal Court Practice by Kenneth Vercammen No discussion of recent municipal court case law would be complete without mentioning the most important case in the past 25 years, State v. Chun. 1 Here, the New Jersey Supreme Court held, subject to certain conditions, the Alcotest breath-testing machine is scientifically reliable, and its results are admissible in drunken driving prosecutions. This article will analyze the most important cases impacted by Chun. Driving While Intoxicated (DWI) 1. DWI dismissed under speedy trial grounds where more than 360 days lapse. State v. Tsetsekas, 411 N.J. Super. 1 (App. Div. 2009). The Appellate Division reversed a conviction and dismissal of a DWI charge due to a violation of the defendant s right to a speedy trial. The extensive delay in adjudicating this matter, caused solely by the state s repeated lapses in preparation and the failure to secure its witnesses, infringed on the defendant s due process rights. 2. No sequestration of defense expert in DWI case. State v. Popovich, 405 N.J. Super. 392 (App. Div. 2009). The defendant s conviction was reversed because the trial court erred when it ruled the defendant s expert was subject to a sequestration order, and would not permit the expert to watch the trial testimony. 3. In a DWI case, the state must provide a 20-minute observation of a driver prior to the taking of the breath test, but the arresting officer can testify about the 20- minute observation. State v. Ugrovics, 410 N.J. Super. 482 (App. Div. 2009). The appeal concerned the admissibility of the results of an Alcotest where an arresting officer rather the Alcotest operator observed the defendant during the 20 minutes prior to the defendant taking the breath test. The appellate court held that the state is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that could compromise the reliability of the test results for a period of at least 20 minutes prior to the administration of the Alcotest. Accordingly, the state can meet this burden by calling any competent witness who can so attest. 4. Destruction of videotape may permit DWI defendant to vacate guilty plea. State v. Mustaro, 411 N.J. Super. 91 (App. Div. 2009). The court considered the defendant s appeal from the denial of a post-sentence motion to vacate his plea of guilty to driving while intoxicated. The motion was predicated on a claim that the state withheld exculpatory evidence, but by the time the motion was filed, the evidence (a videotape recorded by the camera in the arresting officer s patrol car) had been destroyed through reuse, in accordance with the police department s procedures. Applying State v. Parsons 2 and State v. Marshall, 3 the court concluded the defendant failed to establish that he would not have admitted to DWI if he had access to the videotape prior to the plea, and the denial of his motion was fully consistent with a proper application of the principles set forth in State v. Slater. 4 Refusal 5. Breath test warnings now must be given in Spanish. State v. Marquez, N.J. (2010), (A-35-09) 7/12/10. The New Jersey Supreme Court overturned the conviction of a man who refused to take a blood-alcohol test because he did not understand the warnings in English. The Court held New Jersey s implied consent law, 5 and refusal law, 6 require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of 34 NEW JERSEY LAWYER December 2010

35 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. 6. If not enough breath supplied on Alcotest, officer must read additional warnings. State v. Schmidt, 194 N.J. Super. 214 (App. Div. 2010). The court held: 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 11 attempts the Alcotest machine permits. 7. Condo parking garage is quasipublic for refusal violation. State v. Bertrand, 408 N.J. Super. 584 (App. Div. 2009). The defendant s conviction for refusing to provide breath samples, pursuant to N.J.S.A. 39:4-50.2, in a condo parking garage was affirmed. The parking garage of a high-rise condominium that held 354 cars, and was restricted to use by residents of the building, constituted a quasi-public area for purposes of the statute. 8. Prior refusal counts for third DWI. State v. Ciancaglini, 411 N.J. Super. 280 (App. Div. 2010), cert granted. In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, the appellate panel disagreed with the holding in State v. DiSomma, 7 and held that the prior refusal conviction counts toward making this a third offense. The court believes 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. 8 The court also held 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. 9. Refusal does not merge into DWI. State v. Eckert, 410 N.J. Super. 389 (App. Div. 2009). A conviction for refusal to submit to a breath examination cannot be merged with a DWI conviction. Such a plea agreement violated applicable merger principles, as well as the Court s guidelines for operation of plea agreements in the municipal courts of New Jersey. Search 10. Car search requires exigent circumstances; no automatic auto exception; telephonic search warrants approved. State v. Pena-Flores, 198 N.J. 6 (2009). The Supreme Court affirms its longstanding precedent that permits an automobile search without a warrant only in cases where the police have probable cause to believe the vehicle contains evidence and exigent circumstances would justify dispensing with the warrant requirement. Whether exigent circumstances exist is to be decided on a case-by-case basis, with the focus on police safety and the preservation of evidence. The Court also determined that a warrant obtained by telephonic or electronic means is the equivalent of an in-person warrant, and does not require proof of exigent circumstances. 11. Passenger pat down during traffic stop permitted if belief the gang member is armed and dangerous. Arizona v. Johnson, 172 L. Ed. 2d 694 (2009). While patrolling near a neighborhood associated with the Crips gang, police officers serving on Arizona s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the backseat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him to exit the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because Trevizo suspected he was armed, she patted him down for safety when he exited the car. During the pat down, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. Thus, Officer Trevizo s pat down of Johnson did not violate the Fourth Amendment prohibition of unreasonable searches and seizures. 12. Police cannot search car passenger compartment if occupant is already arrested. Arizona v. Gant, 129 S. Ct (2009). Police may search the passenger compartment of a vehicle incident to a recent occupant s arrest only if it is reasonable to believe an arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest. Essentially, Arizona v. Gant overruled New York v. Belton, 9 NEW JERSEY LAWYER December

36 which held when a police officer has made a lawful custodial arrest of the occupant of an automobile, he or she may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. 13. School principal can search vehicle on school grounds. State v. Best, 201 N.J. 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. 14. Error by police dispatcher in invalid arrest warrant requires suppression of evidence under New Jersey Constitution. State v. Handy, 412 N.J. Super. 492 (App. Div. 2010). The court addressed whether evidence found during a search incident to the 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 10 years old at the time, contained the same birth month but different birth day and year than the suspect. The first name on the warrant was a variant spelling of the defendant s first name. The court concluded that suppression was required, and reversed the conviction. 15. Passengers can be ordered out if belief of danger. State v. Mai, 202 N.J. 12 (2010). Because the van was double-parked at 4:25 in the morning in violation of the traffic code, there was a report of a man with a gun, and the furtive acts of the van s occupants were observed by the police, there was sufficient reasonable suspicion for the police officer to order the passengers to exit the vehicle. In this factual context, the Court acknowledged that traffic stops may be dangerous encounters and more than one occupant in the vehicle increases the possible source of harm to the officer. The same circumstances authorize a police officer to open a vehicle door as part of ordering a passenger to exit. Thus, under the plain view doctrine, the seizure of the weapon was proper and seizure of the holster and loaded magazine from the passenger were lawful as the fruits of a proper search incident to an arrest. 16. Mirror obstruction should obstruct driver s view for violation. State v. Barrow, 408 N.J. Super. 509 (App. Div. 2009). A police officer stopping a motor vehicle for violating N.J.S.A. 39:3-74 must provide articulable facts showing that he or she reasonably believed an object hanging from a rearview mirror (such as mini boxing gloves) obstructed the driver s view. 17. Police cannot search home without warrant. State v. Jefferson, 413 N.J. Super. 344 (App. Div. 2010). In the absence of a warrant or a recognized exception from the Fourth Amendment s warrant requirement, the police could not lawfully enter the defendant s home to conduct a detention and investigation of the defendant. In this case, a police officer wedging herself in the doorway to prevent a defendant from closing his front door was entry into the defendant s home. The police failed to show either hot pursuit exigent circumstances or a community caretaking exception from the warrant requirement. Although the police entry was unlawful, the defendant had no right to resist physically, and the search of his person incident to arrest was lawful. Consent to search the defendant s apartment, given by the defendant s wife, was tainted by the unconstitutional police conduct and was not shown to be voluntary. Sentencing 18. Judge can suspend driving license for traffic offense. State v. Moran, 408 N.J. Super. 412 (App Div. 2009). The Court rejects the constitutional challenges to N.J.S.A. 39:5-31, which authorizes, without standards or limits, driver s license suspensions for willful motor vehicle violations. The license suspension provision of N.J.S.A. 39:5-31, published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not hidden, and the defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court defines the term willful violation contained in N.J.S.A. 39:5-31, and enunciates sentencing standards to guide municipal court and Law Division judges. 19. Defense counsel must advise criminal of deportation consequences. Padilla v. Kentucky, 130 S. Ct (2010). Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug distribution charges in Kentucky. In postconviction proceedings, he claimed his counsel not only failed to advise him of this consequence before he entered the plea, but also told him 36 NEW JERSEY LAWYER December 2010

37 not to worry about deportation since he had lived in this country so long. He alleged that he would have gone to trial had he not received this incorrect advice. The U.S. Supreme Court held because counsel must inform a client whether his or her plea carries a risk of deportation, Padilla has sufficiently alleged his counsel was constitutionally deficient. 20. Four factors required for withdrawing a guilty plea. State v. Slater, 198 N.J. 145 (2009). Judges must consider and balance four factors in evaluating motions to withdraw a guilty plea. They are: 1) whether the defendant has asserted a colorable claim of innocence; 2) the nature and strength of the defendant s reasons for withdrawal; 3) the existence of a plea bargain; and 4) whether withdrawal could result in unfair prejudice to the state or unfair advantage to the accused. Defendant Slaughter met his burden and was entitled to withdraw his guilty plea in the interest of justice. 21. No points on unsafe driving if more than five years between offenses. Patel v. New Jersey Motor Vehicle Commission, 200 N.J. 413 (2009). No points are issued on the first two unsafe driving offenses. The third offense results in the driver receiving four points, unless there is more than five years between the second and third offense. The Supreme Court held under N.J.S.A. 39:4-97.2(e), the exemption provision for assessing motor vehicle penalty points for an unsafe driving offense that occurs more than five years after the prior offense refers only to the most recent preceding offense based on both a plain reading of the statute and a review of the legislative history. Thus, the Motor Vehicle Commission correctly imposed motor vehicle points on Patel for having a fourth unsafe driving conviction in 2007, only one year after the date of her third unsafe driving offense. Miranda Rights 22. Police do not always need to readminister Miranda warnings. State v. Nyhammer, 197 N.J. 383 (2009). Based on the totality of the circumstances, the trial court did not err in finding that Nyhammer knowingly, voluntarily, and intelligently waived his Miranda rights under both federal and state law. Thus, the trial court did not abuse its discretion in admitting Nyhammer s confession into evidence. Further, a defendant cannot assert that he or she was denied his or her right to confrontation under the federal and state constitutions unless he or she first attempts to cross-examine the witness on the core accusations in the case. Nyhammer had the opportunity to cross-examine the child-victim at trial about her out-of-court testimony implicating him in the crime, but chose not to do so. Therefore, he cannot claim that he was denied his right to confrontation. 23. Miranda violation cannot be asserted by co-defendant. State v. Baum, 199 N.J. 407 (2009). Defendant passenger Moore s motion to suppress evidence found during a warrantless search of the vehicle in which he was riding should have been denied because he did not have standing to argue that the driver s right against self-incrimination was violated, and because the search was not unreasonable. 24. Defendant must invoke right to remain silent. Berghuis v. Thomp- Trial kins, 130 S. Ct (2010). Defendant Thompkins silence during the interrogation did not invoke his right to remain silent. A suspect s Miranda right to counsel must be invoked unambiguously. 10 If the accused makes an ambiguous or equivocal statement or no statement, the police are not required to end the interrogation, 11 or ask questions to clarify the accused s intent. 12 There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that avoid[s] difficulties of proof and...provide[s] guidance to officers on how to proceed in the face of ambiguity. 13 Had Thompkins said that he wanted to remain silent, or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. 25. U.S. Supreme Court rules lab report not admissible in criminal case. Melendez-Diaz v. Massachusetts, 129 S. Ct (2009). The defendant s drug conviction is reversed, where the trial court s admission of the prosecution s certificates by laboratory analysts stating that material seized by police and connected to the defendant was cocaine of a certain quantity. The U.S. Supreme Court held it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the scientist. NEW JERSEY LAWYER December

38 Endnotes N.J. 54 (2008) N.J. Super. 448 (App. Div. 2001) N.J. 1, (1991) N.J. 145 (2009). 5. N.J.S.A. 39: N.J.S.A. 39:4-50.4a N.J. Super. 375 (App. Div. 1993) N.J. Super. 502 (App. Div. 1995) U.S. 454 (1981). 10. Davis v. United States, 512 U.S. 452, Ibid. 12. Id., at Davis, supra, at Kenneth Vercammen is a trial attorney of Kenneth Vercammen & Associates, PC, located in Edison. He was the New Jersey State Bar s Municipal Court Attorney of the Year 2004 and is past president of the Middlesex County Municipal Prosecutor s Association. 38 NEW JERSEY LAWYER December 2010

39 The Alcotest and State v. Chun by John Menzel ZEALOUSNESS IN RIDDING OUR ROADS OF DRUNK DRIVERS CAN- NOT OVERCOME OUR ORDINARY NOTIONS OF FAIRNESS TO THOSE ACCUSED OF THESE OFFENSES. 1 Expressing concern for protecting that defendant s rights, 2 the state Supreme Court discussed the continuing evolution 3 of New Jersey s driving while intoxicated (DWI) laws with the advent of the Alcotest 7110 MK-III-C, the first new breath-testing technology approved for use in the Garden State in more than 40 years. The Supreme Court noted that, while the Legislature has sought over time to streamline the process by which those charged with DWI offenses are efficiently and successfully prosecuted, 4 the relationship between this increasingly restrictive legislative scheme and the new technology of the Alcotest, as compared to the breathalyzer, requires us to re-examine much of our earlier jurisprudence... 5 Thus, any defendant may challenge Alcotest results on any ground set forth by the Supreme Court in its order, opinion, or the reports of the special master, to the extent those reports have not been modified or rejected by the Court s opinion. 6 An alcohol influence report (AIR), containing the defendant s breath test result, is admissible with a worksheet showing all results within an acceptable tolerance unless challenged on an alternate ground as set forth herein... 7 [T]he responsibility for establishing all conditions as to the admissibility of [Alcotest] results is properly allocated to the State 8 by clear and convincing evidence 9 evidence that produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established; evidence so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the precise facts in issue. 10 Against this legal backdrop, this article examines the state s obligations in an Alcotest case. Alcotest Reliability and Shortcomings While the Supreme Court held that the present Alcotest using firmware version 3.11 is generally scientifically reliable, it also held that certain modifications are required in order to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. 11 The Court imposed some conditions as a matter of constitutional imperative, others as a matter of addressing certain of the device s mechanical and technical shortcomings that were revealed during the proceedings on remand These mechanical and technical shortcomings, among other things, distinguish the Alcotest from the Breathalyzer, which reads alcohol with unimpeachable accuracy. 13 [S]ome of the shortcomings in the operation of the device can only be corrected with respect to future uses of the machine, leaving, potentially, doubt as to the validity of the previouslygenerated AIRs which form the basis for prosecutions stayed pending the outcome of these proceedings. 14 Thus, we must proceed with great care when the only witness confronting a defendant is a machine. 15 This is particularly true of the AIR, which, in and of itself under our statute, suffices to support a conviction. It is proof of Blood Alcohol Content (BAC) over a specified threshold, that forms the basis for a per se violation. 16 The AIR contains the test subject s identifying information, date, time, and test results for each stage of the procedure. 17 Each AIR includes a variety of other information relevant to the test, including the serial number of the device used in the test, dates of and file numbers for calibration and linearity checks, and solution control lot and bottle numbers. 18 If there are errors (e.g., insufficient breath volume or duration, failed control test, etc.) the AIR will report those errors and will not attempt to calculate the BAC from an inadequate sample. 19 If the results are within the acceptable tolerance, the AIR shows the BAC values for each IR [infrared technology] and EC [electric-chemical oxidation] reading for each of the tests to three decimal places, 20 then reports the final BAC test result, which will be the lowest of the four acceptable readings...truncate[d] to two decimal places The operator must retain a copy of the AIR and give a copy to the arrestee. 22 An AIR that is incomplete in its report of breath test results cannot be admissible as proof of a per se NEW JERSEY LAWYER December

40 DWI violation, except to the extent that it does not include added data...order[ed] for the future, 23 such as a listing of the temperature probe serial number and value. 24 Operator Role The operator who conducted the tests shall be made available to testify and shall produce the documents evidencing his or her training [R]equiring that he or she be made available for cross-examination is an important constitutional safeguard. 26 [I]n light of the fact that the operator will ordinarily be called to testify, all defendants will be able to exercise their right to cross-examine the individual to whom [foundational] documents actually pertain. 27 Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person s mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person s mouth, the operator is required to begin counting the twenty-minute period anew. 28 The 20-minute observation period must be continuous 29 and face to face. 30 Thus, the operator will play a relatively lesser role here than has been the case in the past. His role now consists of observing the subject to ensure that twenty minutes has passed and to be certain that the subject has neither swallowed nor regurgitated any substances during that time that would influence the test results; inputting and verifying the accuracy of the identifying information needed to start the sequence; changing the control solution if the machine alerts him to do so; attaching a new mouthpiece; reading the instructions about how to blow into the machine; observing the LED screen and following its prompts; and observing the subject to ensure that he or she actually provides a sample. 31 Operators must also change simulator solution after 25 test sequences or 30 days. 32 The device prompts the operator when the solution needs to be changed and generates a separate report evidencing the results of control testing after each change in the solution. 33 The solution is also changed whenever a coordinator does a calibration routine. The new simulator solution report lists much of the same information as an AIR, including a sequential file number; Alcotest serial number; simulator serial number; simulator solution lot number and expiration date; and the name and badge of the officer making the change. Alcotest Testing Sequence The Alcotest uses both infrared (IR) technology and electric chemical (EC) oxidation in a fuel cell to measure breath alcohol concentration [and] produces two test results for each breath sample, one derived from an IR reading and the other, by and large, from an EC reading. 34 During its operation, the Alcotest s software prompts the operator through a specific testing sequence on each arrestee. 35 After the operator types identifying information into the machine, it automatically samples room air for interferents (an air blank), a control test that must produce results between and 0.105, and a second air blank. 36 Stated another way, this first part of the overall sequence can be abbreviated ACA (i.e., air blank, control test, air blank). The next phase of the test involves the officer taking a breath sample, permitting a third air blank, the taking a second breath sample. This part of the sequence can be abbreviated BAB (i.e., breath, air blank, breath). To collect each breath sample, the operator attaches a new, disposable mouthpiece and removes cell phones and portable electronic devices from the testing area. 37 The operator is required to read the following instruction to the test subject: I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions? The arrestee then provides the first breath sample, which is measured in the IR and EC chambers. 38 The breath sample must meet certain minimum criteria...devised by the State...: 39 1) a minimum volume of 1.5 liters; 2) a minimum blowing time of 4.5 seconds; 3) a minimum flow rate of 2.5 liters per minute; and 4) an IR measurement that achieves a plateau (i.e., does not differ by more than one percent in 0.25 seconds). 40 [T]he minimum breath volume for the Alcotest in New Jersey was fixed at 1.5 liters because the State s experts believe that this volume will exceed the point after which most of the relatively rapid rise in concentration has occurred and the average person is in a fairly level part of the exhalation curve. 41 The Court concluded that the technical criteria for a minimum breath sample utilized by the Alcotest are appropriate, with the exception of the minimum breath volume as it relates to women over sixty years of age The special master found that there was credible evidence to support lowering the minimum breath volume from 1.5 to 1.2 liters for women over age of An LED screen and sound alert the operator when a breath sample which meets the minimum fixed standards, comprised of four criteria, has been provided. 44 The minimum breath volume is significant, in and of itself, because 40 NEW JERSEY LAWYER December 2010

41 the Alcotest is programmed to determine whether the four minimum criteria have been met in a precise order, the first of which is the volume analysis. A sample that falls short of the currently required 1.5 liter volume measurement will be found to be unacceptable [and] the Alcotest will report the amount of air delivered and will display an error message which reads: minimum volume not achieved. 45 The operator then tells the subject to stop, and the instrument performs a third blank test to purge the first breath sample. After a two-minute lock-out period during which the device will not permit another test, the instrument prompts the operator to read the instruction again to the arrestee and collect the second breath sample. The second sample is also measured using the IR and EC technology. 46 The operator has three minutes to collect each sample. 47 If that time expires without a sample, the operator may terminate the test, report that the person refused, or continue. 48 If the officer continues the test, the device will purge itself and then prompt the operator to collect another sample. 49 The operator has a maximum of 11 attempts to collect two breath samples. 50 After an 11th failed test, the operator s only two options are to terminate testing or report refusal. 51 With an acceptable breath sample, the machine prompts the operator, with its LED and a beep, to tell the subject to stop. If any of the minimum test criteria has not been met, the machine will generate an error message and a report of how much air was submitted. The machine then offers the operator the option of giving the person another attempt or asserting refusal. 52 Testing generally concludes with a final ACA (air blank, control test, air blank) sequence. The results of the test sequence are printed out from the device in a sequentially numbered document referred to as an AIR. 53 The entire testing sequence, if completed as intended without error messages, will be ACA BAB ACA, and the AIR will appear as a single page. Two-Minute Lockout The National Highway Traffic Safety Administration (NHTSA) recommends a two- to 10-minute lockout between alcohol vapor samples. 54 In New Jersey, the state adopted the absolute minimum requirement. The Alcotest is supposedly programmed to separate samples containing alcohol vapor by two minutes. 55 This feature was required by then-new Jersey State Police Chief Forensic Scientist Thomas A. Brettell, Ph.D., for quality assurance and to prevent contamination by residual alcohol still inside the cuvette (sample chamber) from previous measurements. 56 The manufacturer, Draeger Safety, Inc., stated that the Alcotest did not adhere to this two-minute-lockout requirement. When Brettell learned this, he insisted that Draeger correct the deficiency. 57 Failing to adhere to this two-minutelockout requirement is considered a problem, 58 compromising Alcotest reliability. Precision Tolerance and Worksheet A Tolerance is the range of any set of measurements that is accepted as being representative of a true reading. Precision and accuracy can be ensured by requiring the application of a narrow range for tolerance. Conversely, the wider the acceptable tolerance between reported results, the lower our confidence in the accuracy of any of the reported results. Therefore, for purposes of permitting any device to be utilized for proof of a per se violation of the statute, the acceptable tolerance is of fundamental importance. 59 Previous firmware versions were programmed to accept a second breath test if there was no more than 0.01 percent BAC or 10 percent between the highest and lowest readings. 60 Current firmware version 3.11 created a range of either plus ten percent or minus ten percent of the mean, for a doubled tolerance. 61 Faced with this change, the Court ordered: The firmware shall be corrected to set the acceptable tolerance range for breath sample readings at the greater of plus or minus five percent of the mean, or plus or minus percent BAC from the mean The simple fact is that the tolerance range is a critical component in our conclusion that this or any other device correctly and accurately measures breath alcohol and converts that data into a scientifically reliable, accurate BAC analysis. 63 The suggestion that we permit those test results that are outside of the range for tolerance to be utilized for purposes of a per se conviction unfortunately is, simply put, unacceptable. 64 Therefore, we are constrained to direct not only that future firmware updates utilize the tolerance computation that we have concluded is acceptable, but that all pending prosecutions include an evaluation of whether the two reported test results exceeded this acceptable tolerance. 65 The Court prepared a worksheet that is attached to the order that accompanies this opinion for use in all prosecutions pending reprogramming of the device Margin for Error (Accuracy Tolerance) Independent of the tolerance calculations of Worksheet A, the special master noted the existence of a separate and independent margin for error that must be taken into account, particularly in the borderline areas of.08 and.10. During the first hearings before the special master, Draeger s vice president, Hansueli Ryser, testified about the margin of error determined by using freshly certified standard solution and a NHTSA-approved simulator. 67 He explained that the margin of error was the same as the one employed by New NEW JERSEY LAWYER December

42 Jersey for control testing, and recommended by the NHTSA and International Organization for Legal Metrology (OIML) specifications. 68 For the Alcotest 7110, it was plus or minus.005 BAC (absolute tolerance) or plus or minus 5% (relative tolerance), whichever was greater. 69 The absolute tolerance applied to concentrations below.10 whereas the relative tolerance applied at or above Therefore, a subject who presented a reading of.08 would have a relative tolerance window from.076 to.084 [5% of.08 =.004]. 71 However, that same subject would have an absolute tolerance window from.075 to Because the absolute tolerance window was greater, all readings would have to be within.075 and The special master concluded that too much emphasis is placed on the test instead of on the person and the performance. That opinion is more strongly held as the penalties for drunk driving become increasingly harsh. 74 This was particularly true where the reading is at the critical level, i.e.,.08 or.10, in the usual DWI prosecution, because of the error margin of.004 or.005 described by Ryser and the inevitable influence of analytical and biological variation on a particular test. 75 We re concerned about people on the margins, the special master noted. 76 Calibration Generally certified as Breathalyzer and Alcotest operators, 77 coordinators also receive their special designation as a breath test coordinator instructor from the attorney general. 78 In addition to being authorized to conduct breath tests and solution changes, they perform black key functions, such as calibration and software uploads, which are not done by other police personnel. 79 Coordinators do not perform any repairs. 80 Calibration of the machines involves attaching the machine to an external simulator that uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath. By exposing the IR and EC mechanisms to these differing concentrations, and by analyzing the device s ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to ensure that the machine is correctly calibrated. 81 [T]he EC reading is obtained by passing an electrical current through a small sample of the breath that has otherwise been captured for IR testing in the cuvette. The fuel cell that creates the electrical charge reacts in the presence of alcohol. 82 [T]he fuel cell begins to react more slowly to the presence of alcohol as it ages If the device detects drift, the algorithm will adjust the EC measurement standard, which, in turn, will slightly increase the reported EC results for the test subject s breath sample to account for the fuel cell drift. 84 The existence of the fuel cell drift algorithm was unknown until Draeger s programmer was cross-examined in the most recent hearings before the special master. 85 The discovery of the EC fuel cell drift algorithm in the source code prompted the Special Master to conclude that more frequent re-calibration of the devices with replacement of fuel cells that had become depleted would reduce reliance on the EC fuel cell drift algorithm and, therefore, increase the accuracy of the readings. 86 In his supplemental report, the special master recommended that the machines be recalibrated every six months rather than annually to afford more regular opportunities to replace aging fuel cells The Court held that a semi-annual inspection and recalibration program recommended by the Special Master is consistent with the manufacturer s recommendations [and] provides a useful safeguard by affording a more regular opportunity to evaluate and replace aging fuel cells. 88 Hence, it ordered the state to forthwith [c]ommence inspection and recalibration of all Alcotest devices every six months in place of the current annual inspection and recalibration program Finding Defenses to the Alcotest Through Discovery The AIR containing a defendant s breath test results is the cornerstone of discovery in per se breath test cases in New Jersey. The AIR contains: 1) supporting information via cross-referencing to required testing to assure the instrument is working properly, and 2) identification of other components that compose the Alcotest system. Alcotest system hardware consists of: 1) the Alcotest itself, designated as model 7110 MK-III-C; 2) a wet bath simulator designated as model CU-34 (calibrating unit, 34 degrees Celsius); and 3) a temperature probe. Peripheral equipment attached to the Alcotest includes a keyboard and an external printer positioned in a special caddy and plugged into a surge suppressor, which is plugged into a dedicated electrical circuit. In addition, coordinators, until recently, used a highly precise and extremely accurate temperature-testing hardware device the Ertco-Hart digital temperature measuring system during calibration and maintenance operations. Whether the state can substitute another digital temperature-measuring system for the Ertco-Hart is a question now pending in the Appellate Division. Except for peripherals, the state provides supporting documentation for each hardware item. The final part of the system is the disposable simulator solutions used during the various functions the Alcotest performs. The Alcotest generates reports for the most essential functions. These reports include the calibration record, a 42 NEW JERSEY LAWYER December 2010

43 calibration report consisting of Part I- control tests and Part II-linearity tests, a new standard solution report, and the AIR. These reports show the CU-34 serial number and the simulator solution lot number and expiration date relevant to each function performed by the Alcotest, but do not identify the temperature probe or Ertco-Hart system relevant to the various functions. The New Jersey Supreme Court held that the firmware should be rewritten so that the AIR, solution change report, and calibration documents include the temperature probe serial number and probe value, 90 and that future calibration, certification and linearity reports should include the serial number of the Ertco-Hart digital temperature measuring system utilized in performing those testing and maintenance operations While any previously-generated report that lacks these additional details is not necessarily insufficient as a matter of proof of a per se violation, 92 the state should establish such information through alternate means to satisfy the requirement that it demonstrate the equipment used was in proper operating condition. Currently, questions challenging Alcotest admissibility are before the Appellate Division in State v. Holland 93 and State v. Pizzo. 94 Despite a requirement by the New Jersey Supreme Court that the state use an Ertco-Hart digital temperature-measuring system during calibration and recalibration, it substituted the Ertco-Hart device for one manufactured by Control Company, Inc. Three courts addressed whether the state could deviate from the expressed mandates of the New Jersey Supreme Court concerning admissibility of breath test results from an Alcotest 7110 MK-III-C before completing changes the Court ordered be performed and answered with three different holdings: In State v. Azria, 95 the Hon. Mitchel E. Ostrer, J.S.C., admitted the Alcotest result because the Supreme Court did not require that only an Ertco- Hart temperature monitoring system be used. In State v. Holland, the Hon. Richard W. English, J.S.C., excluded the Alcotest result as unreliable because the State failed to produce foundational document Number Twelve, relative to the Draeger Safety, Ertco-Hart Digital Temperature Measuring Report of Calibration, NIST [National Institute of Standards and Technology] traceability. In State v. Pizzo, the Hon. Jamie S. Perri, J.S.C., followed Judge Ostrer s reasoning in Azria, but remanded for a determination on the issue of whether the digital thermometer used in this matter was in fact comparable to the Ertco- Hart thermometer... The Supreme Court, in State v. Chun, adopted the Report and Recommendations and the Supplemental Report and Recommendations of the Special Master as modified by its opinion. 96 The Court ordered the state to implement many safeguards immediately. For example, the Court ordered that the State shall prepare and produce a calculation, in a form consistent with Worksheet A attached hereto, that ensures that the two samples meet the acceptable range of tolerance The Court ordered that the State shall arrange forthwith with Draeger for revisions to the New Jersey Firmware utilized in Alcotest 7110 MKIII-C. 98 The Court also ordered the state forthwith, to: (a) commence inspection and recalibration of all Alcotest devices every six months in place of the current annual inspection and recalibration program; (b) create and maintain a centralized statewide database, comprised of downloaded Alcotest results, and make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel; and (c) produce in discovery the 12 foundation documents identified by the special master. 99 The state implemented many of these changes including: Worksheet A which is used in every Alcotest prosecution; recalibrations which takes place no more than six months apart; and the 12 foundation documents except for Ertco-Hart calibration certificates which are routinely provided in discovery. Although no centralized statewide database of Alcotest data is in place, centrally collected data is provided regularly via production of cds. 100 The Supreme Court did not necessarily prohibit the state from making changes after it made the required changes and reprogrammed the firmware. But until that time, the Supreme Court required strict adherence to certain safeguards. Foundational Documents Our analysis of the general scientific reliability of the Alcotest is grounded, in part, on our expectation that there will be proof that the particular device that has generated an AIR being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test. 101 This requirement that the test results be supported by foundational proofs for admissibility has been part of New Jersey jurisprudence since Romano v. Kimmelman, 102 where the state Supreme Court, demanded that, as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure. 103 Overall, we perceive of three categories of documents relevant to our discussion: (1) the documents evidencing NEW JERSEY LAWYER December

44 the qualifications of the operator; (2) the documents evidencing that the machine was in working order at the time of the test; and (3) the AIR being offered into evidence to demonstrate the results of the breath testing. 104 In his first report, the special master identified twelve foundational documents that the State must provide in discovery, which may be admitted into evidence without further formal proofs Substantially adopting this recommendation, the Court ordered the state, forthwith, to provide 12 foundational documents in discovery: 1) New standard solution report of the most recent control test solution change, and the credentials of the operator who performed that change; 2) Certificate of analysis for the 0.10 percent solution used in that new solution report; 3) A certificate of accuracy from Alcotest manufacturer Draeger Safety, Inc., for the Alcotest CU34 simulator; 4) Draeger Safety certificate of accuracy for the Alcotest 7110 temperature probe; 5) Draeger Safety certificate of accuracy for the Alcotest 7110 instrument; 6) Calibration records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; 7) Certificate of analysis for the 0.10 percent solution used in the calibration control test; 8) Certificate of analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test; 9) New standard solution report, following the most recent calibration; 10) Draeger Safety certificates of accuracy for the simulators used in calibration; 11) Draeger Safety certificate of accuracy for the Alcotest 7110 temperature probe used in calibration; and 12) Draeger Safety Ertco-Hart calibration report. 106 These 12 foundational documents fall into two categories: (1) documents directly evidencing the good working order of the machine as of the time of the test, including: the most recent calibration record, the most recent new standard solution report, and the certificate of analysis of the 0.10 simulator solution used in the control tests; and (2) documents evidencing the accuracy of the devices used and chemical composition of the solutions used to routinely test and calibrate the machine, including the analysis of all of the solutions used to test linearity, the documents attesting to the accuracy of the devices used in the simulator, and the certificates of accuracy of the simulator and temperature probes. 107 Not all discoverable material need be offered in evidence at trial. Rather, the Supreme Court concluded that the foundational documents that...need to be entered into evidence therefore are few. They are: (1) the most recent calibration report prior to a defendant s test, with part I-control tests, part II-linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant s test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant s control tests. 108 Absent a pre-trial challenge to the admissibility of the AIR based on one of the other foundational documents produced in discovery, we perceive of no reason to require that they be made a part of the record routinely. 109 [If] any defendant perceives of an irregularity in any of these [discovery] documents that might affect the proper operation of the device in question, timely issuance of a subpoena will suffice for purposes of protecting that defendant s rights In addition to the 12 foundational documents identified by the Supreme Court, the defense should also request other items. Requests may be phrased in the following ways: 111 Downloaded Data a. For all data generated by the Alcotest 7110 used to test a defendant s breath: All sequentially numbered files in the random access memory and downloaded to read-only memory (including alcohol influence report, calibration, control, linearity, solution change, and any and all other tests) for all calibration cycles, including the calibration cycle of which the defendant s breath tests are a part, 112 in a digital format readable in a program generally available to consumers in the open market. 113 When coordinators undertake to perform this calibration, currently on an annual basis, and other routine inspections, they also download the device s test information onto two compact discs. In accordance with current State Police protocol, one of these discs is kept in the local police department s evidence file and the other is held by the coordinator. 114 [E]ach device is capable of storing the data from 1000 test results. Current New Jersey State Police protocol, however, requires the coordinators to download data from each device before it exceeds 500 tests. 115 A document concerning each result is generated by the instrument, regardless of the function performed by the instrument. Results from the overall calibration are recorded in the computer files designated as 21NJ3-11, 22NJ3-11, and 58NJ3-11 (i.e., calibration record, calibration certificate Part I-control tests, and calibration certificate Part II-linearity tests, respectively). Results for solution changes are recorded in the computer file designated as 23NJ3-11, corresponding to the new standard solution report. Results from subject breath 44 NEW JERSEY LAWYER December 2010

45 tests are recorded in the computer file designated 10NJ3-11, corresponding to the alcohol influence report forms. Information recorded on the paper documents is included in the downloadable files. The downloadable files also contain additional information not disclosed in the paper records (e.g., internal diagnostics). The Court ordered the state forthwith [to c]reate and maintain a centralized statewide database, comprised of downloaded Alcotest results The Court also ordered the state, forthwith [to] make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel..., 117 and that defendants should have access to centrally collected and maintained data on their own cases, as well as to the compiled scientific data on matters involving others that has been redacted to shield the personal information related to those other individuals as appropriate For now, the Court perceived no difference between providing data to defendants via a centralized database and to previously downloaded, centrally collected data. 119 Thus, the Court supported both the creation and maintenance of a regularly-updated database 120 and providing access to that data to defendants, 121 especially since there was no genuine difference of agreement among the parties on this matter Alcotest Manual b. New Jersey State Police and Draeger manuals, including operator, service, and technical manuals, for the Alcotest 7110 MK-III-C and calibrating unit CU-34. Manuals provide prosecutors and defense counsel with a basic understanding of how the Alcotest is supposed to function. In one case, the Appellate Division suggested that defense attorneys may inspect or copy [manuals] through arrangements with the prosecution under the rule, thereby having the manual for general use in the attorney s practice. 123 There is no reason to assume the same level of discovery would not be permitted for Alcotest manuals. Maintenance and Repair Records c. Maintenance and repair records for the Alcotest, including packing slips, repair reports, interoffice communications, memoranda, and other documents exchanged: 1) within the police department, and 2) between this department and New Jersey state agencies and Draeger. [T]here is evidence suggesting that from time to time one or more of the devices has been adjusted by a coordinator or returned to Draeger for repair. The record reflects that in either event, a document is generated by the coordinators that evidences those repairs. We commend to the State the establishment of a protocol for maintaining repair logs to the extent that these become more frequent and, therefore, potentially relevant. 124 Video and Dispatch Records d. All video or surveillance recordings showing the room within which the Alcotest was housed for, and at the time of, the defendant s breath tests. e. All dispatch records relevant to the defendant s case, and jail and station logs showing the movements of the Alcotest operator and the defendant. Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. 125 The 20-minute observation period must be continuous 126 and face to face. 127 Video, if it exists, may demonstrate whether the Alcotest operator or other officer continuously observed the defendant. Without video, dispatch records and jail and station logs may provide indications of the movements of the operator and the defendant, and the likelihood that the defendant was observed for the required period. Aside from video and dispatch records, the downloaded data corresponding to AIRs may reveal an operator doing several breath tests in rapid succession, indicating a failure to adhere to the 20-minute observation requirement. So, too, may AIRs in those cases where the defendant is taken from station to station for testing due to Alcotest errors. Cell Phone Bills f. All cellular telephone bills for the cellular phones used by the arresting officer, Alcotest operator, and any other person in the room where Alcotest testing occurred, and radio transmission logs for the time the defendant was in custody. Because the operator is required to, among other things, remove[ ] cell phones and portable electronic devices from the testing area, 128 cell phone bills for the officers involved in processing a defendant at the station may reveal whether any of the officers violated this requirement. Defendants may also demonstrate this with production of their cell phone bills for the time during which they were in custody. If there is inadequate shielding between the police radio base or transmitter and the Alcotest area, police broadcasts may interfere with Alcotest operation. Thus, a defense expert may find dispatch records during the time the defendant was in custody valuable in mounting such an affirmative challenge to Alcotest results. Operator and Coordinator Credentials g. Breathalyzer and Alcotest operator certification replica cards. h. Breathalyzer coordinator instructor s credentials, including Breathalyzer operator certification replica card, NEW JERSEY LAWYER December

46 Alcotest operator certification replica card, letter of appointment from the attorney general. i. Written notice from either the operator or the police chief or executive head of the law enforcement agency concerning lost or replaced credentials. For Alcotest operators and solution changers, the Administrative Code 129 prescribes the requirement for certification of a person to conduct chemical analysis of the breath of a person arrested [for DWI], the conditions under which certification can occur and the general rules for holders of certificates... Any test conducted to analyze a person s breath...by an operator whose certification is suspended, revoked, or invalid at the time such test is conducted, shall be considered invalid for presentation in evidence or testimony in a court of law or administrative hearing. 130 For a law enforcement officer to be certified, [a]pplication shall be made in writing to the Division of State Police by the operator or Chief of Police or other executive head of the organized police department of which the applicant is a sworn law enforcement officer. 131 Initial certification of an operator will be documented by the issuance of a certificate and replica which shows that the operator has completed the required course of training, including the date of the initial course completion and type of approved instrument...upon which the operator has been certified. 132 A replica will be replaced for an operator when the operator s replica has been lost and duly reported as lost, or is otherwise in need of replacement For the replacement replica to be validly issued i.e., [i]f a replica has been lost, or is otherwise in need of replacement the operator or the Chief of Police or other executive head of the organized police department of which the operator is a member shall notify the Superintendent, in writing, in care of the Alcohol/Drug Test Unit of the Division of State Police of such loss or need for a replacement. 134 The replacement replica will bear the date of issuance of the replacement and bear the signatures, or facsimile signatures, of the Attorney General and the Superintendent of State Police. 135 The reverse side of the replacement replica will show the date of the operator s original initial certification...and the date of the operator s most recent recertification...or reinstatement and recertification To be eligible as a Breath Test Coordinator/Instructor, a person must be a sworn member of the New Jersey Division of State Police, hold a valid Breath Test Operator s Certificate, and be a holder of: (1) A certificate in police training issued by an approved school; or (2) A certification from a duly accredited school of higher education. 137 The Attorney General may waive the instructor certification requirement, if he is satisfied such person has equivalent background and experience to instruct breath test applicants and operators. 138 The Attorney General s approval will be in the form of a letter to the person approved as a Breath Test Coordinator/ Instructor and will be reflected on the operator s replica certificate by the words Breath Test Coordinator/Instructor. 139 Conclusion Understanding the Supreme Court s opinion and the special master s reports in State v. Chun is essential to a competent defense and prosecution in these cases. Prosecutors and defense attorneys alike must have a basic understanding of the issues presented to the Court. This article provides only a starting point to exploring those issues. Although the Court concluded that the AIR is not testimonial, it nevertheless concluded that defendants are entitled to certain safeguards that we have required be implemented in prosecutions based on the Alcotest. 140 The Court directed that an opportunity for cross-examination 141 be provided to defendants by requiring that the Alcotest operator be made available to testify. Likewise, the Supreme Court required the routine production in discovery of all of the foundational documents that might reveal some possible flaw in the operation of the particular device and... demanded that the core foundational documents that establish the good working order of the device be admitted into evidence. 142 The Court also ordered the state, forthwith [to] make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel..., 143 and that defendants should have access to centrally collected and maintained data on their own cases, as well as to the compiled scientific data on matters involving others that has been redacted to shield the personal information related to those other individuals as appropriate Furthermore, the Report and Recommendations and the Supplemental Report and Recommendations of the Special Master are adopted as modified. 145 The AIR, foundational documents, and additional discovery items discussed here provide a starting point for trial preparation. With creativity, a defense attorney may find other opportunities on which to challenge an AIR through discovery beyond those expressed in the Supreme Court s opinion. Endnotes 1. State v. Chun, 194 N.J. 54, 118 (2008). 2. Id. at 144, n Id. at Id., citing State v. Tischio, 107 N.J. 504, 514 (1987). 5. Id. at Id. at Id. at (Order, par.1.a(1)). 8. Romano v. Kimmelman, 96 N.J. 66, 91 (1984). 46 NEW JERSEY LAWYER December 2010

47 9. Id. at In re Seaman, 133 N.J. 67, 74 (1993) (citations omitted). 11. State v. Chun, supra, 194 N.J. at Id. 13. State v. Downie, 117 N.J. 450, 468 (1990). 14. State v. Chun, supra, 194 N.J. at Id. 16. Id. at Id. 194 N.J. at Id. 19. Id. 20. Id. at Id. at Id. at State v. Chun, 194 N.J. 54, 139, n.43 (2008); see Id. at 88, citing Special Master s Supplemental Report. As another example of missing information on a calibration record that would not in and of itself render the document inadmissible, see Id. at 152 (Order, par.2g, requiring that the firmware shall be programmed to include the serial number of the Ertco-Hart digital temperature measuring system utilized as a part of each calibration, certification and linearity report See Id. at 152 (Order, par.2.i). 25. Id. at 154 (Order, par.6.a); see Id. at 140; see also Id. at 86, citing Special Master s Finding 5(a). 26. Id., 194 N.J. at Id. at Id. at 79, see Special Master s Initial Report at Id., Special Master s Initial Report at Id., Special Master s Initial Report at Id. at 140. See State v. Ugrovics, 410 N.J.Super. 482 (App.Div. 2009), certif..den. 202 N.J. 346 (2010), and State v. Filson, 409 N.J.Super. 246 (Law Div. 2009), relaxing the operator s role as to observing a test subject. 32. State v. Chun, supra at 80, n Id. 34. Id. at Id. at Id. 37. Id. 38. Id. at Id. at Id. at Id. at Id. at 86, citing Special Master s Finding 6; see Id., 194 N.J. at 152 (Order, par.2.b). 43. Id. at Id. at Id. at Id. at Id. 48. Id. 49. Id. 50. Id. at 81 and Id. at 81 (footnote omitted); see also Id. at Id. at Id. 54. Id., Special Master s Initial Report (2007) at Id. 56. Id. 57. Id. at 38. This problem became apparent as of interim firmware version 3.10y. See Id. at Id. at Id. at Id. at Id. 62. Id. at 152 (Order, par.2.c). 63. Id. at Id. at Id. 66. Id., see Id. at Id., Special Master s Report at Id. NHTSA stands for National Highway Traffic Safety Administration. OIML stands for International Organization of Legal Metrology. 69. Id. 70. Id. 71. Id. at Id. at Id. 74. Id. at Id. at Id. 77. See N.J.A.C. 13:51-1.1, et seq. 78. See N.J.A.C. 13:51-2.1, et seq. 79. State v. Chun, supra, 194 N.J. at Id. 81. Id. at Id. at Id. 84. Id. at Id. at Id. at Id. at 88, citing Special Master s Supplemental Report. 88. Id., 194 N.J. at Id. at 153 (Order, par.3.a). 90. State v. Chun, 194 N.J. 54, 89 (2008), citing Special Master s Finding 2(a). 91. Id., 194 N.J. at and 89, citing Special Master s Finding 2(i). 92. Id., 194 N.J. at App. No (Law Div., Monmouth County, May 18, 2010) (unreported). 94. App. No (Law Div., Monmouth County, May 25, 2010) (unreported). 95. App. No , Dkt. No (Law Div., Mercer County, Dec. 17, 2009) (unreported); Da State v. Chun, supra, 194 N.J. at Id. at 150, par. 1.A(1)(a). 98. Id. at 151, par Id. at 153, par. 3.A, B, and C See Id. at 85; Id. at 90; Id. at 90, n Id. at N.J. 66 (1984) State v. Chun, supra, 194 N.J. at 134, citing Romano v. Kimmelman, supra, 96 N.J. at 81; see also State v. Johnson, 42 N.J. 146, 171 (1964) State v. Chun, supra, 194 N.J. at 139 (footnote omitted) Id. at 86, citing Special Master s NEW JERSEY LAWYER December

48 Finding 5(b). See Id., 194 N.J. at Id. at 153 (Order, par.3.c), see Id. at Id. at Id. at 145; see Id. at 154 (Order, par.6.b) Id. at Id. at 144, n.47. But see Melendez- Diaz v. Massachusetts, U.S., slip op. at 5, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), discussing the distinction between the compulsory process and confrontation clauses State v. Ford, 240 N.J. Super. 44, 52 (App. Div. 1990); see State v. Weller, 225 N.J. Super. 274 (Law Div. 1986) See State v. Chun, supra, 194 N.J. at 153 (Order at par. 3B and par. 3C (1), (6), and (9)) Id., Special Master s Report (Feb. 14, 2007) at 234, item h Id., 194 N.J. at 84 (footnotes omitted) Id. at 84, n Id. at 153 (Order, par.3.b); see Id., at 86 and 90 (2008), citing Special Master s Finding Id., 194 N.J. at 153 (Order, par.3.b); see Id., at 86 and 90, citing Special Master s Finding Id., 194 N.J. at 85 and 90, citing Special Master s Finding 2(h) Id., 194 N.J. at 90, n Id. at Id Id. at 90, n State v. Ford, supra Id. at 145, n Id. at 79, see Special Master s Initial Report at Id., Special Master s Initial Report at Id., Special Master s Initial Report at Id N.J.A.C. 13:51-1.1, et seq., enacted under N.J.S. 39: N.J.A.C. 13:51-1.8(d); see also State v. Ernst, 230 N.J. Super. 238 (App. Div.), certif. den. 117 N.J. 40 (1989), and State v. Sohl, 363 N.J. Super. 573 (App. Div. 2003) N.J.A.C. 13: N.J.A.C. 13:51-1.7(a); see N.J.A.C. 13:51-1.7(b) re: duration of certification N.J.A.C. 13: (b); see N.J.A.C. 13: (c) (emphasis added) N.J.A.C. 13: (b) (emphasis added) N.J.A.C. 13: (c), see N.J.A.C. 13: N.J.A.C. 13: (c) N.J.A.C. 13:51-2.1(a) N.J.A.C. 13:51-2.1(b) N.J.A.C. 13:51-2.1(c) State v. Chun, supra, 194 N.J. at Id. at Id. at Id. at 153 (Order, par.3.b); see Id., at 86 and 90, citing Special Master s Finding Id., 194 N.J. at 85 and 90, citing Special Master s Finding 2(h) Id., 194 N.J. at 149. John Menzel, a principal defense attorney in State v. Chun, has concentrated his practice in DWI defense since 1988, appearing in more than 300 municipal courts in all of New Jersey s 21 counties. He was defense counsel in landmark cases including State v. Cummings, State v. Farrell, and State v. Garthe, and is New Jersey state delegate for the National College for DUI Defense. 48 NEW JERSEY LAWYER December 2010

49 LEGAL CREATIVITY Municipal Court 2030 by John J. Novak Back in the day, the summons John received for travelling 72 in a 55-mph zone might have been issued with a sympathetic even though you were doing 17 over, I wrote you for only 14 over soft landing, but those days are gone. Now, with central monitoring of state troopers radar readings and car speed/movements via GPS; voice recognition software capturing every conversation with a motorist; and satellite links providing real-time uploads to Trenton during every motor vehicle stop, there is no room for leniency. At least the embarrassment of sitting by the side of the road with flashing lights drawing the attention of every passing motorist was short-lived, as the trooper used his bar code reader to load John s information into his computer. The system instantly brought up John s MVC picture on the trooper s screen, checked to see if John had any wants or warrants, and provided John s driving status and history. It also revealed non-public intelligence that law enforcement agencies can enter into the system. If John had ever received a verbal or written warning, the trooper would know. If there were any domestic violence issues, calls for service, or other contacts with law enforcement, they, too, would appear instantly on the screen. Of course, these entries would be non-discoverable, due to the sensitive and/or ongoing nature of the information. Once written up for speeding, John did not face the long lines and long waits to be arraigned, see the prosecutor, appear on-the-record, and then pay at the window, as was the procedure in the past. Now, defendants face a more decorous arrangement, allowing the state to garner revenue from motorists with less inconvenience. In fact, John was able to present himself at any municipal court in the state and appear in an e-court vestibule chamber, a device not unlike an ATM. Inserting his driver s license and summons, he underwent face verification with the MVC photo on file with the DMV. Once verified, John could only proceed with his e-court session after clicking the I Agree button at the end of the 217 pages of disclosures included in the electronic Rights in Municipal e-court document displayed on the screen. With the preliminaries completed, charges, a copy of the statute, commentaries by the state Attorney General s Office and other agencies were displayed. Then by clicking Continue, John was presented with a menu of plea bargains and sentencing ranges, with pull-down menus of memoranda for each option. Selecting a plea option, John was prompted to accept the associated fines, costs and fees. He clicked Trial Waiver, ignoring the pages of notes, and inserted his credit card into the payment slot. His license was promptly ejected from its port and returned to him. Most assuredly, John appreciated getting the whole matter over with during his lunch break rather than wasting two or three days and enduring lines, lectures and laments. And fortunately the software glitch where the system errantly withheld licenses as a suspension had been resolved. Now the state just had to figure out how to refund re-instatement fees and other costs incurred by those who wrongfully did not get their licenses back. In the meantime, of course, charges against those captured on tape damaging e-court terminals as a result are pending. John J. Novak is a solo practitioner in Toms River with an extensive criminal defense and municipal court practice. NEW JERSEY LAWYER December

50 LAW OFFICE MANAGEMENT Make or Break Your New Office with Marketing Due Diligence by Ed Miller The decision to open an office in a new jurisdiction is one that causes many a law firm concern. So while expanding into new markets can certainly help a firm reach its strategic planning and growth goals, before counting your increased profits do all you can to ensure success from your new office. Opening an office will not only cost your firm significant money, but also hundreds of hours of attorney time. Failure would lead to nothing more than an expensive experiment. Marketing due diligence can help you minimize your chances for failure. This article is intended to provide some basic ideas you may wish to consider prior to moving to an additional address. The first point to evaluate is whether the new jurisdiction has a unique culture. Most likely it will be at some level, so you should explore what that culture is and to what extent your firm can adapt to it since the culture will not adapt to you. Some jurisdictions may look at outsiders as carpetbaggers, and will never accept them. Others are more inviting. The need for a strategy to integrate with the culture of the marketplace is essential. For example, if the new jurisdiction tends to be community/charitable-minded, perhaps you can plan to have staff members join boards. You may also wish to buy tables at events, place ads in journals, and so forth. To understand the culture before opening an office, do your homework. You can research who the leaders are, meet with decision-makers and politicians, see if others have tried to do what you are trying, and explore why they succeeded or failed. The point is not to move in cold, only to fail because the deck was stacked against you before you even opened the doors. The second point to research is the competition. What firms already exist in the space you wish to enter? How long have they been established? Who do they represent? What practice areas are their strengths? And most importantly, how will you compete and how will you snatch market share? Perhaps your due diligence will show that there is no or very little competition in a particular area. For example, you have a patent practice and there are virtually no other patent lawyers in the new jurisdiction. Seems like a slam dunk, doesn t it? Maybe the lack of competition was the driving factor in your decision to look at this particular market. Remember, though, there are no slam dunks. If there are needs for patent lawyers and there are no patent lawyers, how is the work currently being serviced? Maybe all of the work is being shipped to the nearest big city. Can you realistically convince these potential clients that your firm is a better choice to handle their patent work? How? Without having a plan, success will elude you. The next step involves financial concerns. Does this new marketplace fit into your firm s financial picture? Will clients pay the fees you need to charge in order to be financially successful? Can you afford to hire capable attorneys to handle work in this new jurisdiction? The financial aspect should be explored for every segment of the business operation, including staff costs, vendors, real estate, insurance and so forth. No sense moving to an area that you cannot afford, or that will not be profitable. The fourth area is attorney ethics. This may not be a large concern if the new office will be opened in a state where you are already conducting business. Hopefully, you are fully aware of the legal marketing ethics that govern your firm. If, however, you are moving to a new state, it is important to research and understand the local ethics rules. You would not want to run into trouble when promoting your new venture. The fifth area of research involves the local media, which should include daily newspapers, broadcast media (radio, TV, Internet), local newspapers, magazines, trade journals, legal publications, and so forth. From this list, try to make connections with reporters who cover relevant beats. This way you can plan a launch strategy upon arrival. The key is to have the ability to articulate to the marketplace what your firm has to 50 NEW JERSEY LAWYER December 2010

51 offer and how your firm understands the culture and fits into it, and communicate whatever other competitive advantages you possess. Then move on to determine what marketing materials will need to be updated or developed. You should have a plan of what needs to be done regarding letterhead, business cards, websites, attorney biographies, practice area descriptions, brochures, advertisements, and directory listings. Give yourself as much lead time as possible (at least two months) to address this process, since it can be daunting. Once on the ground, who will lead the new office s marketing efforts? Will an attorney be in charge; will you hire a marketing professional; or will a staff person (such as an administrator or office manger) be tasked with running the marketing function? Have this worked out in advance, as opening a new office is equivalent with opening a new business. There will be a heavy upfront need for marketing and marketing support, and you only get one chance to make a big splash. The aforementioned items are the main areas of concern when considering opening an office in a new jurisdiction. By exploring each carefully, you will increase the chances of success for your new investment. Ed Miller is the chief marketing officer of Norris McLaughlin & Marcus in Bridgewater. This article was originally published in the winter/spring 2010 edition of the Jer-Z- Journal, and is reprinted here with permission. NEW JERSEY LAWYER December

52 LAWYERS BOOKSHELF New Jersey Family Law (2d ed.) Alan M. Grosman and Cary B. Cheifetz LexisNexis, 2010 The second edition of the treatise by Alan M. Grosman and Cary B. Cheifetz on New Jersey family law provides an updated, comprehensive overview of virtually all aspects of the field. The authors have provided readers with a thorough history of the law, including the evolution of family law through the present. The book is clearly a product of painstaking research into the development of family law, evidenced by the myriad of statutory and case citations used by the authors to support their expansive volume of information. The second edition provides readers with information on the most basic family law topics, such as the grounds for divorce and the calculation of child support, as well as more complicated issues, such as the effect of divorce on separating spouses income taxes. The authors clear organization of the subjects lay the foundation for a concise yet thorough analysis of numerous aspects of family law. Each chapter contains a separate and complete synopsis of that section s contents, allowing the reader to quickly and efficiently locate the desired material. Moreover, each chapter begins with an overview of the topic it focuses on, which effectively introduces readers to the subject matter of the next several sections and provides them with any background information necessary. The authors, additionally, include a table of cases, as well as a table of statutes, making the book even more reader-friendly, and allowing readers to pinpoint the exact location of their desired topic without the need to search through the text. The volume includes a multitude of examples throughout, which allow readers to understand the intricacies of family law in a simple manner. For instance, the section dealing with dependency exemptions on tax returns not only outlines the relevant provisions of the Internal Revenue Code, but also provides an analysis of the rules. The section further includes an in-depth discussion of the rules implications in the form of cases dealing with the relevant subject matter. The authors thorough representation of the issue provides readers with a simplified and concrete understanding of the law. In addition, the authors include numerous practice tips for their readers at various points throughout the text. This feature is continued from the volume s first edition, and draws upon the authors extensive expertise in the field. The tips are separately identified and easily locatable, and provide the reader with the practical knowledge that is so vital to a practitioner s success. Rather than simply providing readers with the basic case law and the theoretical knowledge required, Grosman and Cheifetz take things a step further and provide practical guidance on how practitioners can best apply what they have learned in order to obtain the optimal result for their clients without compromising their practice. For instance, within the section on the attorney-client relationship, the authors include a practice tip on how to best deal with clients who refuse to heed counsel s advice. The authors advise the practitioner to write the client a letter stating the advice and advising the client formally that the action he or she intends to take is contrary to the advice given. The authors note that taking this step will protect the attorney in a malpractice complaint. As another example, the authors include a practice tip in the section dealing with college and other education expenses on how to deal with a current spouse s income in determining the financial resources of a divorced parent. Grosman and Cheifetz advise readers to include a detailed section in the parties divorce judgment describing in detail the marital standard of living in order to give the court a factual basis for making a determination. The volume s appendix consists of another invaluable tool for readers. The authors include more than 85 forms in order to provide practitioners with the guidelines necessary to file almost any type of pleading on virtually every aspect of family law. The forms range from a complaint for divorce to a notice of lis pendens to a judgment of adoption. These forms provide practitioners with a useful starting point for bringing a case to court and, together with the practice tips, provide readers with a practical application of the legal information provided. Grosman and Cheifetz have successfully managed to combine the theoretical and the practical aspects of family law in order to provide readers with a comprehensive and useful tool for anyone seeking to practice family law in New Jersey. Whether the reader is a seasoned family law practitioner, a general practitioner attempting to learn more about the field, or a self-represented litigant trying to wade through the complexities of the family court system, this extensive volume is likely to serve as an invaluable tool to anyone seeking guidance on the subject of family law. Reviewed by John Paone Jr. 52 NEW JERSEY LAWYER December 2010