Princeton Office
Saturday, May 19, 12:33 pm
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.
Rutgers student jumps to his death while roommate and friend face criminal charges and possible wrongful death lawsuit
The Huffington Post reported today that a freshman at Rutgers University jumped to his death after fellow students invaded his privacy. “Dharun Ravi, and fellow freshman Molly Wei have been charged with invasion of privacy for secretly leaving a camera in Clementi’s room and posting his sexual encounter on the web. Each faces up to five years in prison.” While many criminal actions have a civil counterpart, none have the type with such far reaching effects of the wrongful death act.
“The common law recognizes various causes of action relating to the right to privacy. One of those is the tort of intrusion on seclusion. “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other 95*95 for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts, § 652B (1977). To be an actionable tort, an invasion of privacy need not be physical; it can also arise “by the use of the defendant’s senses * * * to oversee or overhear the plaintiff’s private affairs * * *.” Or “[i]t may be by some other form of investigation or examination into his private concerns * * *.” Id. cmt. b. To recover under this cause of action the plaintiff need not prove publication of any information. Ibid. In discussing section 652B, the Appellate Division declared, “The thrust of this aspect of the tort is * * * that a person’s private, personal affairs should not be pried into.”Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992)(citing Bisbee v. John C. Conover Agency, 186 N.J. Super. 335, 340, 452 A.2d 689 (1982)). Ironically, the family will have to prove that they gained a pecuniary benefit from the victim to recover under New Jersey law. “As this Court has said in an infant death case, “the pecuniary injury designated by the statute is nothing more than a deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased,” Cooper v. Shore Electric Co., 63 N.J.L. 558, 567 (E. & A. 1899). See also McStay v. Pryzchocki, 7 N.J. 456, 461 (1951).” Green v. Bitner, 85 N.J. 1 (1980). Sometimes the law does not work as we anticipate.
The victim’s family may find some sanctuary in New Jersey’s punitive damages law. An act to give rise to right to punitive damages must be actuated by
“(1) actual malice, which is nothing more or less than intentional wrongdoing — an evil-minded act; or (2) an act accompanied by a wanton and wilful disregard of the rights of another. Clearly, each case must be governed by its own peculiar facts.” LaBruno v. Lawrence, 64 N.J. Super. 570, 575 (App. Div. 1960) certif. denied 34 N.J. 323 (1961).
Hopefully, this tragic loss can be an example to both those contemplating suicide and those looking to out someone’s private life.
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DWI Conviction in NJ reversed because State failed to turn over Alcotest repair logs
On August 31, 2010, in an unpublished opinion, the Superior Court of New Jersey Appellate Division reversed a lower court conviction for DWI/DUI where the State failed to turn over historical data and repair logs for the police Alcotest. State of New Jersey v. Maricic. While these documents are not foundational documents necessary for the State to obtain a conviction, they are documents that would challenge the reliability of the Alcotest. This case begs the question of what happens when the State says that they do not have repair logs. For a long time, the State has been able to shirk its responsibility to turn over repair logs by denying that any such documents exist. Now that the appellate division says Defendants are entitled to such documents, the fight to show that the State fails to properly maintain repair logs in on!
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heyburn@heyburnlaw.com
Can you really be fired for anything?
The short answer is no! Some say New Jersey is a right to work state which really means a right to be fired state. Some employers cloak their discriminatory intent under this guise. When the cloak is peeled back, we can often see that their true reason for firing an employee violated the law. “To establish a prima facie case of discriminatory discharge, the plaintiff must prove:(1) that he or she is a member of a protected group;(2) that he or she was performing his job at a level that met his [or her] employer’s legitimate expectations;(3) that he or she was nevertheless fired; and (4) that the employer sought someone to perform the same work after he or she left.”- in McConnell v. State Farm Mut. Ins. Co., 1999 By way of example, if a law firm was run by three partners (two Jewish and one Protestant) and these partners fired a series of Catholic lawyers, the Catholic lawyers would have a cause of action for wrongful termination because someone’s religion is a protected category. Often, the employer will make false allegations like the employee stole a fee when the employers true intent is to discriminate against someone for their religous beliefs.
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heyburn@heyburnlaw.com
Have you been defamed? Fact v. Opinion
Libel and slander are terms used by the public interchangeably but have different meanings. They both fall under the action we call defamation. Libel is when someone defames another in writing while slander is when someone defames you in spoken word. “At the heart of every action for libel or defamation is the threshold issue of whether the language used is reasonably susceptible of a defamatory meaning. It is well established that that question is one of law to be resolved by the court. Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 429-30 (App.Div. 1958). Likewise, the critical issue in this case — whether the letter in question amounted to a statement of fact or an expression of opinion — is a question of law for the court. Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 366 N.E.2d 1299, 1306, 397 N.Y.S.2d 943, 950, cert. den., 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). As a preliminary matter we therefore emphasize that the summary judgment procedure is particularly well suited to this sensitive area of First Amendment Law.” Kotlikoff v. The Community News, 89 N.J. 62 (1982).
Many times these issues arise in the workplace. For instance if your employer falsely accuses you of stealing money and tells your co-workers you stole money that would be slander. If they put the same comments in writing, it would be libel. If your employer said “in their opinion,” you are a thief, this would not be defamation. It is merely their opinion. If you have questions about defamation, please call me to discuss your rights and options.
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Too embarassed to sue?
When a person sues another person for injuries or damages, they may open up private details of their life for the public to see. Sometimes the concern for privacy will prevent a person from suing. New Jersey Courts will let someone file a complaint anonymously to prevent the public from learning their identity or personal details of their claim. Anonymous pleading is rare but permitted.
For instance, in Whalen v. Roe, 429 U.S. 589, 591, 97S.Ct. 869, 872, 51 L.Ed.2d 64, 68 (1977), a state statute was upheld that required a centralized computer file record of names and addresses of people who had obtained certain prescription drugs for which there was also an unlawful market. Cf. Doe v. City of New York, 15 F.3d 264 (2nd Cir.1994) (agency publicly disclosed the settlement terms of HIV infected plaintiff’s discrimination claim in accordance with New York City law despite a confidentiality clause in the settlement agreement; court determined that under the agreement plaintiff had a right to confidentiality in his HIV status, and it did not “automatically become a public record when he filed his claim with the Commission and entered into the Conciliation Agreement”); James v. Jacobson, 6 F.3d 233, 234-235 (4th Cir.1993) (plaintiffs allowed to proceed anonymously where they alleged that *503 their infertility doctor artificially inseminated plaintiff-wife with his own sperm rather than plaintiff-husband’s sperm); Doe v. Blue Cross & Blue Shield of Rhode Island, 794 F. Supp. 72 (D.R.I. 1992) (transsexual allowed to proceed anonymously against medical insurer in claim for reimbursement of sex change expenses); United States v. Westinghouse Electric Corp., 638 F.2d 570, 581-582 (3rd Cir.1980) (National Institute for Occupational Safety and Health permitted to obtain employee medical records so long as employees had prior notice and an opportunity to object).
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heyburn@heyburnlaw.com
Not Guilty – Mercer County Jury Exhonerates Hightstown Man of Aggravated Sexual Assault
August 13, 2010 – After a two (2) week trial, Edward Harrington Heyburn, Esq. convinced a Mercer County jury that a Hightstown man was not guilty of Aggravated Sexual Assault and related charges. It took the jury approximately four (4) hours of deliberation before it returned a not guilty verdict to each of the six (6) charges levied by the State. What the jury did not hear is that in 2009, a Monmouth County jury refused to indict Mr. Heyburn’s client for the same allegations that the “alleged victim” made in Roosevelt, New Jersey. Hon. Pedro Jimenez not only refused to tell the jury that the defendant was not indicted but allowed the State to introduce evidence of the unindicted charges to explain why the “alleged victim” did not report her story to the police for over a decade.
After the trial, Ed Heyburn said, “It was clear that the ‘alleged victim’ fabricated her story. She gave approximately seven different versions that were all inconsistent with each other.” The New Jersey State Police which patrols Roosevelt, spearheaded the investigation. Trooper Jessica Baker conceded on the stand that Mr. Heyburn’s client maintained his innocence even after that State Police lied to him. Trooper Baker admitted that it is a common tactic for the New Jersey State Police to lie to suspects to gain a confession. She and Det. Rosica said they had DNA evidence from semen in his pants. They advised him that he had left the pants at the house after a sexual assault. Mr. Heyburn’s client, embraced by innocence, told the New Jersey State Police to test the pants because there is no way that his semen could be in the victim’s house.
On cross examination, Mr. Heyburn forced Trooper Jessica Baker to admit that the entire victim statement only lasted 20 minutes. Furthermore, despite the “alleged victim’s” accusations that the client ejaculated on her hand over 1,000 times, the New Jersey State Police never went to the scene where she said the abuse occurred. The State Police never looked for semen stains on the rug or a stuffed doll the mother kept from when the “alleged victim” was young.
In an effort to save their case, the State called Lynn Taska, Ph.D. Dr. Taska is a psycologist from Metuchen that testifies to explain why an “alleged” victim of sexual assault may give inconsistent statements and testify to facts that never occurred. Interestingly, Dr. Taska offered, on crossexamination, that a “real victim” of sexual assault may be raped by one person and blame a completely innocent person. This left the door open for the possibility that the State’s complaintant was raped but by someone other than Mr. Heyburn’s client.
The not guilty verdict was the first step in restoring Mr. Heyburn’s client’s reputation.
This case is proof that justice can only be obtained when you hire a trial attorney who is ready, willing and able to defend you before a jury of your peers.
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