On March 13, 2012, a Mercer County civil jury awarded Hamilton resident, Patricia Newton $1,000,000 for injuries she sustained as a result of being struck by a Sam’s Club flat bed cart on April 27, 2009.  The jury found that Sam’s Club was 70% liable while Defendant, Yintak Chong was 30% liable. Plaintiff was represented by Princeton attorney, Edward Harrington Heyburn, Esq. Mrs. Newton sustained a severe laceration to the back of her left leg after Mr. Chung pushed a cart into her. Plaintiff called orthopedist, David Lessing, M.D. Who testified that the laceration severed several of Plaintiff’s nerves causing a loss of sensation, scar and deformity to the underlying muscle.  At trial the plaintiff was able to show that a Sam’s Club associate helped Mr. Chong load the cart with boxes of chicken. The boxes were loaded above Mr. Chong’s head making it impossible for him to see what was in front of him as he pushed the cart forward. The Hon. Pedro Jimenez, J.SC. presided over the four day trial.  Sam’s Club was represented by Richard Millett, Esq. of Somerville, New Jersey.  Mr. Chong did not have an attorney after his home owner’s insurance company disclaimed coverage.

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In 1998, Ed Heyburn left Philadelphia for his home state in New Jersey and began working for Levinson Axelrod, PA in Edison, Howell and Forked River New Jersey.  Ed worked for them for 6 years and tried a significant number of cases to verdict.  Tow of these cases stand out.  In Marsdale v. Port Libete, et al., Ed convinced a Middlesex County jury to award his clients $1 Million ($1.4 Million with prejudgment interest).  A few months later, Ed Heyburn convinced and Ocean County jury to award his client $2.5 Million for an ankle fracture.  After those verdicts, it was clear that Ed Heyburn should open his own practice and focus his attention on developing his own clients.  In 2004, many clients left Levinson Axelrod and came with Ed when he started his own office.  He decided to broaden his practice.  In addition to personal injury, Ed also handles worker’s compensation, employment discrimination, criminal matters, traffic matters and DWI/DUI’s.  Ed was once of the lead attorneys in a class action suit against Centex Homes in which he was able to get Centex to reimburse homeowners for attic staircases that lacked adequate fireproofing.

Ed Heyburn has ben able to get a court to order DYFS to return children to a home wherein DYFS planned to adopt out the children.  He has also appeal denial of suppression motions and reversed denials where Municipal Courts looked the other way while police illegally search driver’s cars.

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The state Senate approved a bill on Monday that would make the unsafe driving statute more available as a zero-point alternative to speeding and other motor vehicle offenses — even for those with prior convictions.

The measure, S-248, would clarify that N.J.S.A. 39:4-97.2 does not allow assessment of points on a third offender as long as at least five years have elapsed since the second offense.

After that, points would be assessed “if the subsequent offense occurs within five years of a third violation, or, if the person has more than three violations, within five years of the immediately preceding violation.”

As now in effect, the statute lumps a third offense “or subsequent” offense together, and dictates that points “shall be assessed” in those situations. An offense that occurs more than five years after the prior offense is not considered a subsequent offense for the purposes of assessing points, but the law does not specifically state that the five-year bar holds true for a third offense.

The bill codifies the ruling in Patel v. New Jersey Motor Vehicle Commission, 200 N.J. 413 (2009), where the Supreme Court overturned a construction of the statute as mandating a points assessment for every third offense, regardless of how much time passed since the second one.

Hina Patel had sought a novel reading of the statute, arguing that her fourth offense, because it occurred more than five years after her first two, should be treated as a points-free second offense.

The Appellate Division rejected that position, 403 N.J. Super. 373 (2008), calling the Motor Vehicle Commission’s position — that relief from penalty points does not apply to a third offense, and is available only in a fourth or other subsequent offense — “a reasonable construction of the statute.”

The Court unanimously affirmed — saying the “prior offense” from which the five-year time limit runs refers only to the most recent offense — but went on to void the Appellate Division’s dicta.

“We see no basis for treating the term ‘subsequent offense’ in subsection e. as a term of art addressing fourth or later offenses, but excluding third offenses for purposes of the imposition of points,” Justice Jaynee LaVecchia wrote. “Absent a more explicit direction from the Legislature to outright deny subsection e.’s exemption to third offenders, we reject the Appellate Division’s contrary suggestion.”

The bill would raise the fine for a fourth or subsequent offense to $500, up from the present range of $250 to $500,

The unsafe-driving statute came to be so widely used as a downgrade offense that it was amended in 2004 to impose a $250 surcharge on each conviction in order to raise revenue for the state Department of the Treasury.

The Senate approved S-248 in a 39-0 vote. No hearings have been scheduled in the Assembly.

The bill wasintroduced by Sen. Christopher Bateman, R-Somerset, the original sponsor of unsafe driving law in 2000. A longtime municipal prosecutor in Bridgewater and Bound Brook, he pushed for the unsafe-driver statute after judges and prosecutors were chastised by state officials for using obstruction of traffic and other lesser offenses as catchall downgrades when they were not meant to be used in that capacity.

“My intent was to help good drivers … so their insurance rates don’t go up,” Bateman says, adding, “when I first passed this, I was a hero in the municipal court circuit” because judges and prosecutors “needed a new tool” to save time and administrative costs by avoiding trial.

“But it’s been abused,” he adds, referring to the Appellate Division’s interpretation in Patel as well as the 2004 surcharge amendment.

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Lucimar Dixon (right)

Lucimar Dixon is a Brazilian national scam artist that is preying on unsuspecting New Jersey residents.  Ms. Dixon poses as a real estate broker and gains the confidence of buyers.  She makes the buyers believe that attorneys, sellers and other people are part of a legitimate real estate transaction.  She will eventually, convince the victim to giver her cash, even pretending to deposit the money in a “secure” attorney trust account.  Actually, Lucimar Dixon deposits the money in an account that she has access to.  There is no attorney or anyone else.  The deal is a facade. The deal falls through and Ms. Dixon is gone with the money. Finally, the New Jersey Attorney General has find a company under which she operates, “Hope Loan Today.” The State has levied $14,000 in fines and ordered restitution. This is just the tip of the iceberg for Ms. Dixon.  A Google search reveals that Lucimar Dixon has morphed herself into several companies that sound legitimate but are designed to rob you.  Some of the names under which she trades are:

Hope Loan Today;

Dixon International, Ltd.;

Brazil USA Imports; and

Dixons Lines LLC.

Lucimar Dixon uses her home at 7 Jonathan Drive, Robbinsville, New Jersey 08691 as a front for her illegal operations.  She often preys on the trust of her fellow Brazilians.  If you have been the victim of a Lucimar Dixon scam, please contact me immediately.  I will assist you in reporting the matter to the police and filing a civil suit against her.  If you come across Ms. Dixon or know her whereabouts, please report her immediately to me.

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But what happens when the stop occurs in an empty parking lot where there is no reason to be concerned about safety?  Police still have the driver perform field sobriety off camera.  Safety is a red herring.  Police have unwritten protocols that direct them to prevent the recording of exculpatory evidence.  This way their testimony is the only evidence.  Occasionally, a defendant will testify but the Court always finds the police officer credible and the defendant not credible.  Increasingly, our Municipal Court system has become an extension of the prosecution.  Municipal Court judges are appointed by town mayors.  Their goal is not just nor is it to overlook the law.  It is to maintain job security.  A judge that dismisses DWI charges, even because of police misconduct, will no have job security.

Fortunately, our system also provides for 3 levels of appeals.  At each level the judges are further away from the political process that determines their decisions.  Unfortunately, an innocent defendant faced with municipal court charges, must be in for the long haul.  This means time and money.  I have taken appeals pro bono in certain cases where I believed a municipal court judge had made a decision based on my client’s race or the court’s calculated decision that my client was too poor to appeal.  It is impossible for private attorneys to appeal every case pro bono.  We would be out of business before our case reached Superior Court.  So we pick and choose the right case with the right judge to take up on appeal.  Judges hate to be overturned.  Superior Court judges never mind airing a municipal court judge’s sloppy decisions.  It make the municipal court judge look bad.

If you are charged with an offense and need an attorney that will take you matter seriously, please call me so that we can discuss your case.

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Jersey Shore

The summer is near and you are getting your shore house ready, sun tan lotion and summer vacation plans in order. What should you know about NJ law? Well, I’ll tell you now and maybe save you some heart ache later.

DWI and the Alcotest (Breathalyzer)
Q: If I am stopped should I tell the officer I had a couple of beers?

A: While our parents have taught us that honesty is the best policy, it usually lands you in jail. If you tell the police officer you had any alcohol, he/she will arrest you and have have you blowing into the Alcotest before you know it. While an attorney cannot tell someone to lie, an attorney can tell you that it is not illegal to say, “I did not have anything to drink tonight. In fact, I was the sober driver.”.

Q. What should I know about the psycho-physical tests before I have to do them?

A. Practice raising one leg 1 foot off the ground. Dead sober it is awkward. I think most people fail because they are not used to doing this type of task. Keep your arms at your sides. Don’t use them for balance. Do this for at least 30 seconds. Practice makes perfect. Ladies, if you plan to wear heals, keep a comfortable pair of sneakers in the car for the test. Yes, you are allowed to change.

Watch YouTube videos on walking the straight line. Most people mess up because they don’t listen to the instructions. You have to take 10 steps, heel to toe and then rotate around and walk 10 more steps heel to toe back. If you spin around at the end of the line, you will fail! Slowly rotate.

Q. Should I test the Alcotest (Breathalyzer)?

A. YES!!!! NJ like most states has an implied consent law. This means that you have consented tom taking the Alcotest by the virtue of driving in NJ. If you do not take the test, you will be charged with Refusal which carries with it a 7 – 12 month loss of license in addition to any time you lose for DWI. Yes, the police can still convict you even if you do not take the Alcotest. It is call an “Observation” case.

Q. Do I need a lawyer or should I just plead guilty?

A. Get a lawyer. Once a man asked me tom represent him for his guilty plea and sentencing only. He was set on pleading guilty. He was charged with going the wrong way on the New Jersey Turnpike and getting into an accident. When he got to court, ready to surrender his license, I told him that no one saw him driving the car. Police failed to get witnesses and he did not give a statement. As a result, the DWI charges were dismissed!

Q. I am from New York, what does it matter if I get convicted of DWI in NJ?

A. NY and NJ, lime most states have an agreement to suspend their home driver’s license if convicted of DWI in another state. So, not only will you lose your right to drive in NJ, you will lose your right to drive in NY once they find out about it.

Q. They police want to search my car, should I cooperate and consent?

A. No, no and no. There are so many requirements before the police can search your car. If you consent, you have given up one of the most important right in the Bill of Rights. Even if they threaten you will the drug sniffing dogs, just say no. Chances are, the will search your car illegally and the evidence will be suppresses. Say no even if you don’t have drugs in the car. The lead US Supreme Court case involved a search where police found checks forged by the driver’s brother-in-law!

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The Appellate Division agreed with the trial court that although Chun did not preclude the use of any similar digital thermometer traceable to NIST, “the record below is insufficient to support a finding that the digital thermometer used in this matter was in fact comparable to the Ertco-Hart thermometer.” Consequently, the judge remanded the case to the municipal court for a N.J.R.E. 104 hearing on the reliability of the Control Company temperature probe and, separately, on a discovery issue involving missing Alcotest machine data not produced by the State and previously raised by the defendant below. The State did not cross-appeal from that remand order. In fact, the State has represented that it will be able to demonstrate that its change of manufacturer “holds no significance” and that “the Control Company, Inc., temperature probe is comparable to its Ertco-Hart-manufactured counterpart and meets the Special Master’s requirement of traceability to internationally recognized NIST standards.”

It looks like the State is going to have to prove that the cheaper probes are just as good.  Stay tune for the results!

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