2/3/12.  The NJ Supreme Court issued a joint order today in four combined cases that sought to have to court do a back flip on Pena Flores where the Court had previously ruled that the police generally need at least a telephonic warrant to do most car searches. The State alleged that Pena Flores has been too big a burden on law enforcement and has resulted in less detection of criminal conduct. They supported this with New Jersey State Police (NJSP) data.   That the court found was a fatal flaw. The court said it might  reconsider if true statewide data is presented in the future.

I wonder if the court knew of the NJSP memo instructing troopers how to avoid Pena Flores by obtaining more consents? It would explain their lack of confidence in the NJSP data. Well, anyway Pena survives intact despite speculation as to why the court had granted cert on these cases. Now we know.

Jeff Gold

1/31/12. The NJ State bar has approved amicus participation in State v Cahill. In Cahill the App Div affirmed a speedy trial dismissal of a DWI after a 16 month period between downgrade and listing. The State requested cert essentially for two reasons, (1) that the def never asserted his right to a speedy trial and showed no actual prejudice and (2) that dismissal goes against, in the State's words, the Court's long held "philosophy" to eradicate DWI from our roads. The Bar is particularly concerned with the implications to judicial impartiality from the later States' point. While we agree that there is a public policy, of course, against DWI, we do not agree that this is part of a Court held "philosophy" that can mitigate a defendant's constitutional right to a speedy trial. Further, there are issues with whether the NJ Constitution requires a defendant to bring himself to trial, whether actual prejudice is necessary in the context of a traffic case, whether AOC dir 1-84 (60 days) can only be used against a defendant but not for a defendant and whether the facts in this case will be much rarer since AOC 4-11 which now requires all traffic to stay with the indictable.

Jeff Gold

1/20/12.  There have been  several cases recently where Municipal Court judges have been at issue for crossing the line between judge and prosecutor, but the case of a Linden Twp. Judge was no mere weaving over the yellow line. He jumped the line and landed in a ditch on the other side.  In a matter last year, the Linden Twp Judge denied a continuance to get a lawyer, allowed the arresting officer to act on behalf of the State, dotted the State's case with his own questions, then convicted and sent two defendants to jail.  The case was later reversed by the Law Division who called said the judge called to mind the days of back woods frontier hanging judges who despensed "justice" in dictatorial style.  Judical ethics charges were later instituted. (The judge has cited in his defense, calendar concerns for why he moved a case without his prosecutor.)  There were 5 or 6 news articles on the case, but still Linden Twp political support remained firm in its support of its  judge...until Tuesday when the town finally removed the judge in favor of another political appointee.   The judicial ethics proceedings are pending.

Jeff Gold

Blog here.MEMORANDUM
Directive # 09-11

To: Assignment Judges
Presiding Judges-Municipal Courts
Municipal Court Judges
From: Glenn A. Grant
Subj: Informing Municipal Court Defendants of the Immigration
Consequences of Guilty Pleas
Date: December 28, 2011

This Directive promulgates procedures to be followed in the municipal courts
to inform defendants that a guilty plea to or conviction of certain
municipal court offenses may negatively affect their immigration status,
including possibly resulting in deportation. The Supreme Court approved
these procedures on the recommendation of the Conference of Presiding
Judges-Municipal Courts.

In State v. Nunez-Valdez, 200 N.J. 129, 131 (2009), the New Jersey Supreme
Court held that defense counsel, in failing to inform the defendant that
under federal law his conviction would mandate deportation, did not provide
effective assistance to the defendant. Similarly, in Padilla v. Kentucky,
____ U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), the
United States Supreme Court held that the Sixth Amendment requires defense
counsel to provide affirmative, competent advice to a noncitizen defendant
regarding the immigration consequences of a guilty plea.


In 2011, the New Jersey Supreme Court addressed this constitutional
requirement in Superior Court criminal cases; see Directive #05-11
("Criminal Plea Form - Question Regarding the Immigration Consequences of a
Guilty Plea"). Consistent with Nunez-Valdez, Padilla, and Directive #05-11,
this Directive addresses the same concerns in municipal court cases by
requiring municipal court judges (1) to inform defendants that a guilty plea
or a finding of guilt as to certain offenses may result in negative
immigration consequences and (2) to inform defendants that they have a right
to seek advice from an attorney regarding those potential consequences.
Procedures

A municipal court judge shall inform defendants of possible
immigration consequences and of their right to seek counsel on these matters
at three stages of the
court process: (A) as part of the court's opening statement for each court
session; (B) at defendant's first appearance; and (C) as part of the guilty
plea colloquy.


A. Opening Statement
The municipal court judge shall include the following language in the
opening statement for each municipal court session:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. You have a right to
seek advice from an attorney about the effect a guilty plea will have on
your immigration status.

This language will be incorporated into each of the three model opening
statements that the Supreme Court adopted in 2008 - one model opening
statement for sessions handling criminal matters only, one for sessions
handling motor vehicle offenses only, and one for combined sessions.


B. First Appearance

At the first appearance proceeding, any defendant charged with the following
offenses shall be advised of the immigration consequences of a guilty plea:

(1) all disorderly or petty disorderly persons offenses;
(2) driving while intoxicated (N.J.S.A. 39:4-50; N.J.S.A. 39:4-50.14;
N.J.S.A. 39:3-10.13; N.J.S.A. 12:7-46);
(3) operating motor vehicle while in possession of a CDS
(N.J.S.A. 39:4-49.1).

The municipal court judge shall engage in the following colloquy with
defendants charged with the above-listed offenses at first appearance
proceeding:

If you are not a United States citizen and
if you plead guilty to or are convicted of certain offenses heard in the
municipal court, including some motor vehicle offenses, it may result in
your being deported from the United States, or it may prevent you from being
re-admitted to the United States if you leave voluntarily, or it may prevent
you from ever becoming a naturalized American citizen. Do you understand?

You have a right to seek advice from a
private attorney about the effect a guilty plea or conviction will have on
your immigration status. If you qualify for a court-appointed attorney, you
can speak to the public defender about the immigration consequences of your
plea. Do you understand?

The municipal court judge shall engage in this colloquy during the first
appearance for all defendants charged with any of the above-listed offenses,
regardless of the defendant's name, appearance, or English proficiency.
This requirement is not intended to in any way limit the judge's discretion
to engage in this same colloquy with other defendants who have been charged
with offenses other than those listed above.


C. Guilty Plea

Before accepting a guilty plea to any of the above-listed
offenses, the municipal court judge shall engage in the following colloquy
with the defendant:

(1) Are you a citizen of the United
States?

(If defendant answers "No" to question 1,
defendant must answer questions 2 through 6.)

(2) Do you understand that if you are
not a citizen of the United States, this guilty plea may result in your
removal from the United States and/or may stop you from being able to
legally enter or re-enter the United States?

(3) Do you understand that you have
the right to seek individualized advice from an attorney about the effect
your guilty plea may have on your immigration status?

(4) Have you discussed with an
attorney the potential immigration consequences of your plea?

(If defendant answers "No" to question 4,
defendant should next answer question 5. If defendant answers "Yes" to
question 4, defendant should next answer question 6.)

(5) Would you like the opportunity to
do so?

(6) Having been advised of the possible
immigration consequences and of your right to seek individualized advice on
your immigration consequences, do you still wish to plead guilty?

If during the plea colloquy an indigent defendant seeks the opportunity to
discuss with an attorney the potential immigration consequences of the plea
and the offense charged would result in a consequence of magnitude, the
court should adjourn the proceedings and appoint the municipal public
defender to represent defendant. The municipal court judge is under no
obligation to appoint additional separate counsel for an indigent defendant
to advise defendant on the immigration consequences of a plea.

Additionally, if during the plea colloquy an indigent defendant who is not
charged with an offense that would result in a consequence of magnitude
seeks the opportunity to discuss with an attorney the possible immigration
consequences of the plea, the court should adjourn the matter to give the
defendant the opportunity to do so.

Similarly, if during the plea colloquy a non-indigent defendant seeks the
opportunity to discuss with an attorney the possible immigration
consequences of the plea, whether or not there are possible consequences of
magnitude, the court should adjourn the matter to give the defendant the
opportunity to do so.

Finally, at no point in the proceedings should the municipal court judge
attempt to advise defendants on an individualized basis as to what the
actual immigration consequences of a particular plea might be. Both
Padilla, 130 S. Ct. at 1486, and Nunez-Valdez, 200 N.J. at 131, made it
clear that such individualized advice is the responsibility of counsel, not
the judge. As stated previously, the judge's responsibility is limited to
informing defendants that a plea or a guilty finding may result in negative
immigration consequences and that defendants in that situation have the
right to seek advice from an attorney regarding the potential consequences.

12-22-11. Today  The NJ appellate division decided what most of us have assumed de facto for a long time, namely that it doesn’t take much to justify administration of the Standardized Field Sobriety Tests. Here the defendant had tinted windows and a loud exhaust justifying the stop, but no driving conduct that was indicative of DWI. Then the officer smelled alcohol on defendant (and when don’t they) and the defendant admitted having one beer. That the App Div said today is enough reasonable suspicion to administer the roadside testing.  Although the instruction is much like an arrest because the def is not free to go, the Court found that the instruction was more limited than a full arrest and applied the Terry stop and frisk standard of reasonable suspicion to the case.

12-20-11. The NJ Appellate Division, today in State v Holland and State v Pizzo, beat back a long standing defense challenge to the State's use of a temperature device used to calibrate the Alcotest 7110. The Court held that a Control Company device may be used to substitute for the previously used Ertco Hart device. 

12-14-11. In State v Regis today the NJ Supreme Court ruled that weaving (lane change) statute did not require the State to prove that the movements were unsafe. This reversed the lower court which had held the contrary.

12-8-11.  I was scheduled to testify on behalf of the New Jersey State Bar Association (NJSBA) today in the NJ Senate against the proposed Refusal bill .  I asked that the executive board of the NJSBA take emergent action in opposition to the proposed refusal bill which would trick unawary subjects into refusing and being double penalized therefore.  I am glad to report that we were able to get the NJSBA to  fax a letter in opposition to the Senate yesterday.  Also I was able to bright the matter to the attention of the Hispanic Bar Association of NJ.  Obviously when 85% of all court translations are Spanish to English (AOC stats) such an organization should be on notice of this bill.  They weren’t,  and so had no idea of the emergent issue.  The Hispanic Bar president and its Public Policy committee chair were immediately helpful, and agreed to testify for the Hispanic Bar,  along with me for the NJSBA.  Sometime this morning, after the fax from the NJSBA and after the Hispanic Bar called the Senate to confirm that they would testify, I received a call that the bill was being “held” (taken off agenda for today. ) I have no idea if this was coincidence or not and no idea when it will pop up again, whether in the lame duck session or otherwise.   In any event, my reading of State v Marquez is that the court used a statutory basis for decision only because a full constitutional analysis was not necessary. The legislature already built in a protection against Mirandabased confusion. However, I think it is clear from Marquez,  Widmaier, Duffy , and other cases that  some form of notice is constitutionally required to avoid the confusion between the assertion of 5^th A rights and a Refusal which requires an unequivocal “yes”.   We can only hope that the legislature will not simply buy into this rushed bill without understanding the consequences to people who (regardless of how guilty they may be of DWI) innocently assert their 5^th A rights only to be rewarded with double penalties and being forced to plead guilty because the State now has a refusal charge to hold over them if they want a trial. Moreover, just think how that that injustice multiplies for Hispanics who will still be given Mirandarights in Spanish but then be asked in English to take the breath test without any explanation whatsoever required as to the consequences of asserting those 5^th amendment rights , ie that those rights no right to refuse by silence or request and attorney.  

11/30/11.  Per the New Jersey Law Journal (coming out next week) we will be informed that the refusal bill I mentioned last week (which would remove the requirement that police inform defendants they do not have a right to refuse)  got pushed up in committee … before the State Bar even got a chance to review it… and that in the Attorney General’s words, the bill was its own ”initiative” to defeat defendants who do ” not speak English”.  I leave it to you to decide whether that sounds kosher, but if passed the bill would seem to rob all defendants of the due process right (or at least a fundamental fairness right) to know that refusal by silence or assertion of right to a lawyer is not encompassed within Miranda.  I wonder if this bill’s reasoning isn't like throwing the baby out with the bath water?

Jeff Gold

11/22/11.   NJ assembly bill A3400 which passed the judiciary committee yesterday and now moves on to the Assembly as a whole. It is a bill that answers State v Marquez not by dealing with the language issue but by bypassing the requirement that the notice be read at all. There may not be too much left of the confusion doctrine now, although it survives, but this bill may resurrect it in spades since defendants would be advised of Miranda and not at all as to the lack of a right to refuse a breath test. Once again IMHO there seems to be a rush to change a law that just "ain't broke".  It might be better to say it only has to be read in English that do away with the reading altogether, at least the vast majority of citizens would still be informed that refusing to take a breath test has its own consequences and is not a right like remaining silent. 

Blog here.Today in State v Zeikel, (published) the App Div held once again that a NY driving while impaired counts as a prior (see State v Lawrence App Div 1983) . This time the court had to address the amended NY statute but also came to the conclusion was still "similar" enough to our 4-50 to count. This panel went on to hold that changing sentencing laws was not an ex post facto law or a due process violation. These latter holdings are significant as they would lay the ground work for constitutional muster if the legislature changed the 4-50 statute (post Ciancaglini) to make a refusal count as a prior DWI. The Court also addressed the issue of a defendant's certification, here that the reading was a .06, as alone not enough to sustain his burden of persuasion.

Is it "lying" for an officer to purposely enter the wrong arrest time on the Alcohol Influence Report? Is doing this just to get around updating the Alcotest firmware a legitimate exercise? The latest in a series of daylight savings/standard time memos from the New Jersey AG's office instructs the police to put the wrong arrest time on the AIR. This is the crazy way that the State is trying to get around the change in Daylights Savings. The firmware fix is quick and painless but has been avoided for years likely because the State is just too afraid of legal challenged once any change to the firmware in made. 

Here we are over 3 1/2 years after State v Chun and still I am writing to you about how the 7110s software has not been updated to even change Daylight savings time yet, a change that the manufacturer didn't even have to be ordered to do but would have done in the normal course.  They haven't presumably because the State must just be too worried that any changes to the software might upset the apple cart. Well unless the machines have been updated unbeknownst to me, they will all be reading the wrong time from last Sunday until Nov 6th at 2 am. This causes all kinds of issues in cases. Nevertheless, it appears that we will continue to be doing this "daylights savings gig" for some time. 

Blog here.

A Linden NJ municipal judge who rejected defendants' request for a public defender,  allowed a police officer to act as prosecutor and also seemed to act as  the prosecutor himself is now facing ethics charges by the Advisory Committee on Judicial Conduct.  Judge Louis DiLeo's "actions transformed the role of the court from a neutral and detached magistrate and evoked the specter of the backwater 'judge, jury and executioner' figure that has never had any place in American jurisprudence," the ACJC said.  "The court's intervention deprived both defendants of their due process rights," the complaint goes on. The defendants won a new trial on appeal to Union County Superior Court. There, Judge Scott Moynihan found the actions of DiLeo were a "perversion of justice" and violated the defendants' constitutional rights.  The ethics complaint charges DiLeo with violating Canons 1, 2A and 3A(1) of the Code of Judicial Conduct. Canon 1 requires judges to observe high standards of conduct so the judiciary's integrity and independence may be preserved. Canon 2A requires judges to respect and comply with the law and act in a manner that promotes public confidence in the judiciary's integrity and impartiality. Canon 3A(1) requires judges to be faithful to the law and maintain professional competence in it.

A new day is dawning on a practice that some may have once considered just fast cash at night. The Supreme Court has approved a "Municipal Court Trial Attorney" certification. Municipal Court Trial Certification now joins Criminal Trial, Civil Trial, Matrimonial, and Workers Comp areas as the only specialties permitted by the Rule.  Certification requires that the applicant have tried 10 cases which must  including 6 DWI trials since plenary admission. She or she must have fully prepared 30 litigated matters a year for the past three years (total of 90 litigated municipal court matters in the last three years.) The applicant must also take 12 DWI CLE credits every three years. The detailed application process itself will be an onerous one, with vast number of items being required as to each 90 cases (and each of 10 trials.)  Finally, of course there will be a long and strict written examination required of each applicant.

June 22, 2011, in New Mexico v Bullcoming, the US Supreme Court reversed a DWI case from New Mexico where a lab surrogate testified instead of the actual lab tech who performed the GC testing on blood.  Our app div last month, in State v Rehmann, basically anticipated Bullcoming by also ruling that pure surrogates would be unconstitutional. However, in Rehmann the substitute witness actually observed all the testing even though he was not the tech (he was his supervisor) and the court found held the testimony under these unusual special facts sufficient for 6th A purposes.  But even that very narrow exception may not survive Bullcoming which emphasizes that the 6th A is not satisfied just because there was no actual prejudice.  Opinion is attached.

June 22, 2011, in New Mexico v Bullcoming, the US Supreme Court reversed a DWI case from New Mexico where a lab surrogate testified instead of the actual lab tech who performed the GC testing on blood.  Our app div last month, in State v Rehmann, basically anticipated Bullcoming by also ruling that pure surrogates would be unconstitutional. However, in Rehmann the substitute witness actually observed all the testing even though he was not the tech (he was his supervisor) and the court found held the testimony under these unusual special facts sufficient for 6th A purposes.  But even that very narrow exception may not survive Bullcoming which emphasizes that the 6th A is not satisfied just because there was no actual prejudice.  

May 26, 2011, The Supreme Court today reversed the lower court's decision in State v. Schmidt which had required that officers read the second paragraph of the refusal statement in the context of a blowing refusal. The court did not reach the issue of whether due process required any lesser advisement to a defendant before being charged as it was not raised by defendant. Blowing refusals remain to be analyzed on a case by case basis on their facts.

May 4, 2011 in State v Nunnally (approved for publication)  the App Div held that CDL Refusal is not a lesser included offense of Refusal, that the State was precluded from amending the complaint  to charge CDL Refusal after the statute of limitations expired., and that the driver of a commercial vehicle who is arrested and charged only with CDL DUI, N.J.S.A. 39:3-10.13, and  who thereafter refuses a breath  test, may only be charged under the cognate CDL refusal statute,  N.J.S.A. 39:3-10.24, and may not be prosecuted under the general refusal statute, N.J.S.A. 39:4-50.4a. .

This Court concluded, as has the NJ Supreme Court in State v Marquez and State v Ciancaglini recently, that the statutes were clear but that even if they were not, "they are quasi-criminal we would be constrained to construe them narrowly, in favor of the
defendant."  This continues the trend of our courts away from interpreting all DWI related law more broadly in view of the "carnage on the road" that such conduct causes, in favor of more traditional statutory construction principles.