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DWI CONVICTION ENTERED IN FACE OF REASONABLE DOUBT IS REVERSED
The New Jersey Law Journal reports:
“An Essex County judge who shifted the burden of proof to the defendant in a drunken-driving case and convicted her despite finding reasonable doubt was reversed Thursday in State v. Driscoll, A-5842-08. After hearing testimony from Patricia Driscoll’s treating neurologist — who said her erratic driving on the night of her arrest was the result of Lyme disease, fatigue and a condition called presyncope, which causes dizziness, disorientation, loss of balance and mild cognitive dysfunction — Superior Court Judge Robert Gardner held “the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered.” The Appellate Division rejected the state’s request for a limited remand on the theory that Gardner merely spoke imprecisely. “If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt,” the court said.”
It is the State, NOT the defendant that has the burden of proving each element of the offense of driving while intoxicated, beyond a reasonable doubt. While some municipal courts try to shift burdens on to the defendant, it is improper. Interestingly in this case, the Superior Court Judge did not remand the issue back to the municipal court for a finding consistent with the law. Obviously, the municipal court judge would have changed the language in his holding to say that the State proved the Defendant guilty beyond a reasonable doubt. The Superior Court Judge recognize this and did not give him the chance to do so.
If a driver is in an accident and there are no witnesses, was the driver careless?
Municipal courts routinely hold someone guilty of careless driving when there is an accident. The Prosecutor rarely has a witness that can testify about what the driver did that was careless. They cannot make the defendant testify because the defendant has a 5th Amendment right to not testify. Most police officers are not accident re-constructionist. Lawyers will have their client take a plea rather than try the case. Well, the case law says that the State needs more than the fact that an accident happened.
In State v. Wenzel, the Appellate Division said the municipal court cannot shift the burden of proof onto the defendant to prove his or her innocence.
Prosecution for a motor vehicle violation is a quasi-criminal proceeding and the State has the burden of establishing all elements of the offense beyond a reasonable doubt. State v. Cestone, 38 N.J. Super. 139, 147-148 (App. Div. 1955); State v. Ring, 85 N.J. Super. 341, 343 (App. Div. 1964), certif. den. 44 N.J. 407 (1965). Taking the evidence in a light most favorable to the State — see State v. Reyes, 50 N.J. 454, 458-459 (1967) — it appears that, on a wet roadway in a construction area marked by a dozen signs warning of danger, defendant’s vehicle (according to the trooper’s hearsay testimony) jackknifed, crossed into the opposite lane and struck another vehicle. There is no evidence that defendant was speeding or, indeed, that he drove “carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property.” N.J.S.A. 39:4-97. State v. Tuccillo, 76 218*218 N.J. Super. 584 (App. Div. 1962), on which the State relies, is critically distinguishable; that case involved an appeal from the Director of Motor Vehicles’ revocation of defendant’s driver’s license, and was not a quasi-criminal proceeding. Cf. Cestone, above.
Res ipsa is properly invoked in negligence actions where the proofs disclose that the offending instrumentality was in defendant’s sole control, that the occurrence bespeaks negligence, and there is no indication of contributory negligence. In such circumstances there arises a permissible presumption of negligence from plaintiff’s proof, and defendant is required to come forward with an explanation that will refute the presumption and show that the accident did not occur by reason of his lack of care. The foundation of the rule is the policy of placing the onus of producing evidence on the party “possessed of superior knowledge or opportunity for explanation of the causative circumstances.” Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 605-606 (1958).
Employment of the res ipsa doctrine obviously places a burden squarely on a defendant to explain why he was not negligent. The doctrine has no place in criminal or quasi-criminal proceedings, where the burden is totally on the State to prove beyond a reasonable doubt that defendant violated a penal (or quasi-penal) statute.
Eliminating any benefit the State may have had from the improper invocation of the res ipsa doctrine, we find that the evidence adduced by the State did not support the conviction beyond a reasonable doubt.
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Superior Court in Atlantic County Invalidates Alcotest Breath Test Results and Now Alcotest Results in Robbinsville and Hamilton May be Invalidated
In State v. Chun, the New Jersey Supreme Court upheld the reliability of the State’s Alcotest, which is used to measure a driver’s presumed blood alcohol level. While the test is discussed at length under the DWI/DUI section of this web site, it is important to understand that the validity of the test was upheld in connection with the use of the Ertco-Hart temperature probe. At some point, both Robbinsville and Hamilton Township Police Departments switched to the use of a different temperature probe, the Digital NIST Temperature Measuring System. Interestingly, the Robbinsville Police Department did not even disclose the use of the unapproved probe until it published its Alcotest records from December 2010 to present. In light of the Court’s ruling below, the validity of both Robbinsville and Hamilton Township’s Alcotest results are in serious question. If you have been charged with a DWI/DUI in any municipality, especially in eith Robbinsville or Hamilton, it is important that you call for a free consultation to discuss the possibility of having the Alcotest results suppressed.
Law Offices of Edward Harrington Heyburn, PC
103 Carnegie Center Drive
Suite 300
Princeton, NJ 08540
Tel. (609) 259-7600
Fax (609) 259-7303
heyburn@heyburnlaw.com
The Law Offices of Edward Harrington Heyburn, PC is a full service law firm focusing on Personal Injury, Workers Compensation, Municipal Court Matter, Driving Under the Influence/Driving While Intoxicated, Traffic Matters, Domestic Violence, Family Law as well as DYFS Removal Cases.
Press of Atlantic City reported:
MAYS LANDING – A Superior Court judge’s ruling could negate drunken-driving arrests throughout Atlantic County, say area defense attorneys and municipal prosecutors.In overturning a driving under the influence conviction this week, Judge Max Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.The decision – which covers the entire county – could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable. “Theoretically, the effect is huge,” said Michele Verno, a municipal prosecutor in four Atlantic County towns who said she had not yet read the ruling. “Because the temperature probe is the indicator of reliability for the machine, if that’s called into question, then so are the results.” “This is binding in every municipality in Atlantic County,” said Alan Lands, the Pleasantville attorney who argued the case. He said the case cannot be appealed because his client has now been acquitted, and to try him again would be double jeopardy.
Atlantic County Prosecutor Ted Housel said he could not comment on the case until he has read the ruling, but municipal prosecutors in the county will look to him in determining what happens next. “I’m sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters,” said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week. In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.
When the state Supreme Court ruled the Alcotest could replace the Breathlyzer in police departments throughout the state, it named just one manufacturer for the thermometer probe, Baker noted. But instead of using the Ertco-Hart digital measuring system, some departments use one manufactured by the Control Company. Testimony in another trial concerning the two probes indicated Control is used because it’s much cheaper, costing about $300 compared with $2,000 for the Ertco-Hart that also requires annual recalibration for about $700. The Control probe is replaced rather than recalibrated. Baker found that the higher court mentioned Ertco-Hart several times in its ruling. “I don’t believe that the Supreme Court left out the words ‘or similar devices’ simply because they overlooked it,” he said. “I think they left it out for a particular reason.”
But even if the words had been included, Baker said the state did not prove that Control’s probe is comparable. While Ertco-Hart is independently tested, Control tests its own equipment. “If find that that is a critical error,” Baker said. Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company’s probe should not be an alternative. “Not only do you have to meet these standards, it has to be verified independently,” he said. Levow said it’s likely another company’s probe will eventually be approved. Levow said that wouldn’t be a problem, as long as the same standards are applied. “It looks like Judge Baker was trying to follow the Supreme Court’s order,” said John Menzel, who also argued the Supreme Court case. Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said. “Ertco-Hart was not litigated all that much because it’s a fine piece of equipment,” Menzel said. “The use of the Control Company was never examined, and there was never any consideration of that device (in the case).” The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company’s probe. Control did not return a request for comment. If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer’s testimony. “It doesn’t necessarily negate all previous and future cases,” she said. “But it does create some significant issues.”
Atlantic County isn’t the only one calling the probe into question. The appellate division heard arguments Tuesday on two Monmouth County cases in which the judge sided against Control. A judge in Mercer County found the probe was a reliable alternative.”Departments all over the state are going to be coming up on all sides of this issue until the appellate speaks,” said Menzel, who also represents one of the Monmouth County defendants. “There is no consensus on this issue statewide.”
New Jersey Supreme Court refuses to hold that a prior refusal constitutes a DWI for sentencing purposes!
The New Jersey Supreme Court granted certification to resolve the conflict between the Appellate Division’s decisions in DiSomma and in this matter. 202 N.J. 43 (2010).
HELD: Defendant Ciancaglini’s conviction in 2006 for refusing to take a breathalyzer test does not constitute a prior conviction for purposes of determining her sentence for driving while intoxicated in 2008.
1. To interpret a statute, courts look to the Legislative intent, examining first the plain language of the statute. If the statute is clear on its face, courts enforce it; if it is ambiguous or open to more than one meaning, courts may consider extrinsic evidence, including legislative history and committee reports. Any reasonable doubt concerning the meaning of a penal statute must be strictly construed in favor of the defendant. (Pp. 10-11)
2. Although N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4 are both part of a statutory complex designed to rid the highways of drunk drivers, each is a separate section with a different, albeit related, purpose, and each has different elements. Under the DWI statute, N.J.S.A. 39:4-50, operating a motor vehicle while intoxicated subjects the defendant to penalties that are based on the number of prior offenses the defendant has committed. For a first offense in which the driver’s blood alcohol content is .10% or higher, the sentence includes a license suspension of 2 seven months to one year, a fine, and a jail term of not more than 30 days. For a second violation, the sentence includes a two-year license suspension, a fine, and a jail term of up to ninety days. For a third or subsequent violation, the sentence includes a ten-year license suspension, a fine, and a jail term of 180 days. However, the DWI statute contains a “step-down” provision that states that “if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second conviction for sentencing purposes.” The refusal statute, N.J.S.A 39:4-50.4a, is similarly structured with penalties based on whether the conviction is the driver’s first, second, or third or subsequent offense. It requires the revocation of the right to operate a motor vehicle by any driver who, after being arrested for DWI, refuses to submit to a breathalyzer test. The length of license suspension for refusal mirrors the length of the license suspensions for DWI. However, no custodial sentence is authorized for refusal convictions. (Pp. 11-14)
3. Until the Appellate Division in this case reached the opposite conclusion, DiSomma represented the controlling case for sentencing DWI offenders with a prior refusal conviction. In DiSomma, the Appellate Division examined both the DWI statute and the refusal statute and determined that their provisions were intended to be separate.
Concluding that a prior refusal conviction cannot serve as the basis to enhance a subsequent DWI conviction, the defendant, who had a prior conviction for refusal, was sentenced as a first offender after his DWI conviction. Since DiSomma, there have been no legislative revisions to the DWI or refusal statutes suggesting an integration of refusal convictions into DWI sentencing. Although a 1997 amendment to both the DWI and refusal statutes was designed to ensure that DWI and refusal convictions in other jurisdictions qualify as prior offenses under the respective sections in New Jersey, the Legislature never endeavored to provide that a prior refusal conviction could be treated as a prior DWI. (Pp. 15-17)
4. The DWI statute contains no reference whatsoever to the refusal statute, and nothing suggests that the references to prior violations in the DWI statute’s lists of penalties are meant to refer to anything beyond DWI convictions. Without any statutory cross-reference, or similar expression, the most natural reading of the DWI statute suggests that the “prior” violations described in N.J.S.A. 39:4-50 are meant to refer only to the DWI section in which they are contained. Such a reading is consistent with the well-established principle that penal statutes must be strictly construed. (Pp. 17-18)
5. While the record is not clear as to whether Ciancaglini’s 2006 refusal conviction was or was not incident to an acquittal of DWI, it cannot be reasonably suggested that someone convicted of refusal when found not guilty of DWI can be treated as if he or she were convicted of the DWI offense. If the Legislature wanted to treat a refusal conviction as an enhancer for SWI, even after an acquittal of DWI, it would have to do so in clearer language. (P.
18)
6. The Court determines that it need not decide in this case whether a person can twice take advantage of a stepdown under N.J.S.A. 39:4-50 because Ciancaglini’s refusal conviction cannot be considered a prior DWI violation for enhancement purposes. As such, she is not precluded from the benefit of the step-down since her first DWI conviction in 1979 was more than ten years prior to her second, the 2008 DWI conviction. (Pp. 19-20)
The judgment of the Appellate Division is REVERSED and the Law Division’s sentence is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUDGE STERN’s opinion
Who says hiring the right lawyer doesn’t matter? Not Lawrence Taylor.
Troubled Giant’s great, Lawrence Taylor was facing charges of having sex with a child prostitute. The charges could have put him in jail for the better part of his natural life. Men of wealth, like Taylor don’t sit back and wait. They hire the best criminal attorneys that money can buy. Many people opt to let a court appointed an attorney to handle their fate. While the Public Defender’s office is filled with many good attorneys, they are overworked and stretched thin. Too thin to give you the type of representation that money can buy. Today was the best example of Allan Dershowitz’s adage, “A lot of money buys a lot of justice.” Lawrence Taylor’s attorney successfully negotiated a plea bargain that kept the Pro-Ball linebacker out of jail. Six years probation and no jail for Taylor.
While your legal circumstance may be different, you deserve a good attorney. While money is important, you cannot put a price on your freedom. If you have questions about a criminal case, please feel free to give me a call. After a free consultation, you can decide for yourself!
Law Offices of Edward Harrington Heyburn, PC
103 Carnegie Center Drive
Suite 300
Princeton, NJ 08540
Tel. (609) 259-7600
Fax (609) 259-7303
heyburn@heyburnlaw.com
The Law Offices of Edward Harrington Heyburn, PC is a full service law firm focusing on Personal Injury, Workers Compensation, Municipal Court Matter, Driving Under the Influence/Driving While Intoxicated, Traffic Matters, Domestic Violence, Family Law as well as DYFS Removal Cases.
We have moved!
Please note that we have moved to:
103 Carnegie Center Drive
Suite 300
Princeton, New Jersey 08540
Tel. (609) 259-7600
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heyburn@heyburnlaw.com
Tougher law on cell phone/texting on NJ’s horizon
TRENTON, N.J. (AP) — A Senate committee has advanced a measure to increase fines for talking or texting while driving.
The bill proposes a graduated penalty system for violations of the state’s handsfree cell phone law.
A $200 fine would be imposed for the first offense, up from $100. A $400 fine would be assessed for a second offense happening within 10 years and a $600 penalty would be charged for subsequent offenses. Chronic offenders would be subject to 90-day license suspension.
Sen. Dick Codey, the bill sponsor, says studies show texting while driving is more dangerous than drunken driving. The West Orange Democrat says police in New Jersey write 10,000 tickets a month for cell phone law violations.
The measure moves to the full Senate. The Assembly has yet to consider it.
Pedestrian Crosswalk – Stop!
Newjerseynewsroom.com reports:
28 walkers killed this year
A new New Jersey state law goes into effect Thursday that mandates that motorists must stop — and remain stopped — for pedestrians in the crosswalk.
In the past, motorists were required only to yield to pedestrians in a crosswalk.
State Attorney General Paula T. Dow and Division of Highway Traffic Safety Director Pam Fischer are traveling the state Thursday to remind New Jerseyans of the change.
“For years, too many pedestrians have been dying in traffic accidents in New Jersey,” Dow said. “With these changes to our law, motorists and pedestrians will no longer have to play a game of chicken when it comes to maneuvering on our roadways. The law brings new clarity that drivers must stop and remain stopped for pedestrians at intersections and crosswalks, and pedestrians, in turn, must use due care and not jaywalk or step into traffic outside of those crossing points.”
Motorists who violate the law face a $200 fine, plus court costs, and 2 points on their license. They can also be subject to 15 days of community service and insurance surcharges.
Pedestrians may also be cited under state law for failing to use due care when crossing. The law requires them to obey pedestrian signals and use crosswalks at signalized intersections as well as yield the right of way to traffic if they are not crossing within a crosswalk or at an intersection. Failure to comply with the law carries a $54 fine, plus court costs.
Fischer noted that since 2004, approximately 150 pedestrians have been killed annually in traffic-related accidents in New Jersey. Last year, after a three-year downward trend, the number of pedestrian deaths statewide increased to 157.
As of Friday, 28 pedestrians have been killed as compared to 48 for the same time period last year. Additionally, since 2004, more than 30,000 pedestrians have been injured in motor-vehicle related crashes statewide.
To educate people about the new law, the Division of Highway Traffic Safety has developed an oversized palm card, similar in size to a traffic ticket, that outlines the changes as well as the penalties for failing to comply. The card will be distributed to all police departments in the state, and made available to high school driver education teachers and defensive driving program providers. The new law will also be detailed in the New Jersey Driver Manual.
Fischer said her agency will be working with police to educate both motorists and pedestrians about the change in the law.
“We’re asking law enforcement officials, when interacting with motorists and pedestrians, to educate them about the change to the law, as well their respective duties and responsibilities when walking or driving,” Fischer said. “Our goal is to reinforce the importance of pedestrians always using crosswalks, their safety zone, and for motorists to recognize that when approaching crosswalks they must be alert for pedestrians and stop and stay stopped to allow them to cross safely.”
“This new law complements our ongoing effort to enhance pedestrian safety on New Jersey’s busy roadways,” said state Transportation Commissioner Jim Simpson. “Since 2006, NJDOT has completed or funded 205 pedestrian safety initiatives, and just a few months ago we adopted a Complete Streets policy that promotes safe accessibility for all who share our roads.”
Fischer offers these safe walking tips for pedestrians:
Wear bright-colored, reflectorized clothing, especially at night.
Walk on sidewalks or paths and always cross at the corner, within marked crosswalks if provided. If there are no sidewalks, walk facing traffic and make eye contact with motorists.
Never cross mid-block, between parked cars or by climbing over median barriers. This is against the law.
Look left, then right and left again before crossing, and always be on the look-out for turning vehicles.
Continue to look for vehicles while crossing, even when in marked crosswalks.
Learn the proper use of “walk/don’t walk” signals and obey them.
Walk and cross with others, when possible.
Do not attempt to cross while talking or texting on a cell phone. Pedestrian inattention is a common cause of pedestrian-motor vehicle conflicts.
Try not to walk at night or in bad weather, such as rain, snow or ice.
Backlash over sexting incident results in teen suicide
Previously, I have advised you of the legal implication of teens sexting. Unfortunately, criminal penalties are not the only consequences faced by sexting teens. Hope Witzel made a mistake and sent her boyfriend a nude picture. Her actions were met with an unforeseen response. She became the subject of threats and extreme peer bullying. The abuse became too great for this teen to bear and she took her life. Prior to her suicide, the teen reached out to a school counselor who, inexplicably was unable to alert Witzel’s parents. Now the school is looking at their culpability for failing to prevent this girl’s death.
