E266 January 16, 2008

NJ Laws Email E266 January 16, 2008 Kenneth Vercammen, Attorney at Law 732-572-0500 In this issue: 1 New Law Establishes owners responsibility to provide information relating to certain motor vehicle accidents.

2. New Law Expands scope of implied consent for BAC testing to include certain underage drivers who have consumed alcohol.

3. New Law Authorizes suspension of motor vehicle registration for unpaid parking ticket.

4. New Law provides for more time to pay Surcharges 5. New Law permits poor people to perform community service in lieu of fines 6. New Law grants the court discretion regarding imposition of penalties for certain drug offenses and to allow “reformative service” to satisfy a portion of such penalties when certain conditions are met.

7. Other New Traffic, Criminal and Civil Laws signed in January 8. Hon. Emery Z. Toth to speak at DWI Update 2008

Governor Jon S. Corzine signed the following bills into law January, 2008

1 New Law Establishes owners responsibility to provide information relating to certain motor vehicle accidents. S-721/A-2144 (Inverso, Girgenti/Greenstein) This bill amends R.S.39:4-129 and R.S.39:4-130 to establish a permissive inference, in cases where a driver fails or refuses to report his involvement in an accident, that the registered owner of the vehicle was the person involved in the accident.

Under R.S.39:4-130, drivers are required to report their involvement in any accident resulting in a death, injury or property damage in excess of $500. In certain "hit and run" situations, victims of motor vehicle accidents have been able to identify the vehicle, but not the driver of that vehicle. Since the statutory reporting obligation is on drivers and not owners, there is no mechanism to obtain the identity of the responsible driver, especially if an owner refuses to disclose any information to his insurers or the police. Assigning responsibility to the owner may encourage owners to cooperate in accident investigations.

R.S.39:4-129 provides that the driver of a motor vehicle involved in an accident “shall

be presumed to have knowledge that he was involved in such accident, and such presumption shall be rebuttable in nature.” This bill amends this section to provide that there shall be a permissive inference that the driver of any motor vehicle involved in an accident resulting in injury or death to any person or damage in the amount of $250 or more to any vehicle or property has knowledge that he was involved in such accident.

R.S.39:4-130 is also amended to provide for the permissive inference.

In addition, this bill amends R.S.39:4-129 and R.S.39:4:-130 to provide that in cases where the vehicle is owned by a rental car company or leased, the permissive inference applies to the renter, authorized driver or lessee, not the owner.

The bill would also provide that any person who suppresses, conceals or destroys any evidence relating to a reportable motor vehicle accident or who suppresses the identity of a driver involved in a reportable motor vehicle accident is subject to a fine of not less than $250 or more than $1,000.

The provisions of the bill are consistent with State v. Walten, 241 N.J.Super. 529 (App. Div. 1990), which held that the rebuttable presumption in R.S.39:4-129 offended constitutional principles of due process by improperly shifting the burden to prove knowledge to the defendant, and that a court could afford the statutory presumption no greater weight than that of a permissive inference.

2. New Law Expands scope of implied consent for BAC testing to include certain underage drivers who have consumed alcohol. S-781/A-490 (Madden, Buono/Bateman) – This bill amends section 2 of P.L.1966, c.142 (C.39:4-50.2), the implied consent statute, to establish that persons under the age of 21 are deemed to have given their consent to a test of their blood alcohol concentration when requested by a police officer who has reasonable grounds to believe they have operated a motor vehicle with a blood alcohol content of 0.01% or more, but less than 0.08%, in violation of section 1 of P.L.1992, c.189 (C.39:4-50.14), the drunk driving statute applicable to underage persons.

The penalties imposed under this bill would be the same as the penalties currently imposed under section 2 of P.L.1981, c.512 (C.39:4-50.4a) for refusal to submit to a blood alcohol concentration test. For a first offense, those penalties include a driver’s license suspension of seven months to one year and a fine of $300 to $500.

3. New Law Authorizes suspension of motor vehicle registration for unpaid parking ticket.

S-2326/A-3523 (Turner, Rice/Quigley, Wisniewski, Bodine) – This amended bill would provide a judge and the Motor Vehicle Commission with greater flexibility when dealing with a person who has failed to respond to a failure to appear notice or who has not satisfied outstanding parking fines or penalties. Under current law, a judge or the commission may suspend the person’s driver’s license. Under the provisions of this bill, a judge or the commission would be permitted to suspend either the person’s motor vehicle registration or driver’s license. In determining whether to suspend the person’s driver’s license or the motor vehicle registration, the judge and the commission shall take into consideration the area where the person resides and whether or not the person has access to off-street parking.

This bill was prompted by a recommendation from the Motor Vehicles Affordability and Fairness Task Force.

The committee amended the bill by requiring the judge and the commission to take into consideration the area the person resides in and whether or not the person has access to off-street parking in deciding between suspension of the driver’s license or the motor vehicle registration. The committee also made a technical amendment.

4. New Law provides for more time to pay Surcharges S-2331/A-3524 (Turner, Sacco/Quigley, Wisniewski) – Renames New Jersey Rating Plan and provides for changes in procedures for payment of outstanding surcharges.

This bill amends the law creating the New Jersey Merit Rating Plan to change the name of the plan to the Motor Vehicle Violations Surcharge System. The bill further changes the term "plan surcharges" to "surcharges.” These changes are intended to make the terminology of the statute establishing the surcharge regime more closely reflective of the character of that regime.

In addition, the bill amends the “Merit Rating Plan” (now the “Surcharge System”) to provide that a driver failing to pay a surcharge under the Surcharge System may, by paying at least five percent of each outstanding surcharge assessment owed, remove the driver’s suspension for failure to pay. Currently the Motor Vehicle Commission may authorize payment of surcharges on an installment basis for a period not to exceed 12 months for assessments under $2,300, or not exceeding 24 months for assessments of $2,300 or more. The bill provides that the commission may, for good cause, authorize installment payments for a period not exceeding 36 months irrespective of the surcharge assessment. The other permissible installment periods are 12 and 24 months.

The bill further provides that a surcharged driver against whom a certificate of debt

has been filed for non-payment of a surcharge shall not be eligible for the restoration of his driving privilege until at least five percent of each outstanding surcharge assessment that his resulted in the suspension, including interests and costs, if any, has been paid to the commission.

5. New Law permits poor people to perform community service in lieu of fines S2332/A-3526 (Turner/Wisniewski, Quigley, Cohen) – Authorizes payment options for certain motor vehicle fines and fees.

This amended bill would permit the court to waive certain unpaid portions of courtimposed time payment orders for certain defendants and impose other requirements in lieu of the remaining unpaid amount. Specifically, for a defendant who is indigent or is participating in a government-based income maintenance program, the court may waive an unpaid portion, up to $200, of any court-imposed time-payment order, as a result of a conviction for a motor vehicle traffic violation or a parking offense and, in lieu of the remaining unpaid amount, require the defendant to perform community service for a period of time to be determined by the court, or participate in any program authorized by law, or satisfy any other aspect of a sentence imposed. For the purpose of determining indigency to waive the unpaid portion, the guideline for the court is an income up to 250 percent of the federal poverty level. The amended bill excludes persons convicted of driving while intoxicated or refusing to take a breathalyzer test from being eligible for the waiver.

The committee amended the bill to eliminate a provision giving the court the option to suspend or vacate up to one half of the unpaid portion of fines and surcharges (other than for unsafe driving) imposed on a low-income defendant, and to authorize instead the waiver of up to $200 of the remaining unpaid amount. The committee also excluded persons convicted of driving while intoxicated and refusing the breathalyzer test from the bill and established 250 percent of the federal poverty level income as a guideline for indigency. Finally, the committee deleted language which would have permitted the chief administrator to waive the $100 license restoration fee or permit it to be paid in installments.

6. New Law grants the court discretion regarding imposition of penalties for certain drug offenses and to allow “reformative service” to satisfy a portion of such penalties when certain conditions are met. S-2930/A-4570 (Girgenti, Sacco/Watson Coleman, Fisher) This bill would grant the court the discretion to lessen the penalties for certain drug offenses and to allow certain defendants to perform “reformative service” in lieu of a portion of such penalties.

Under current law, set forth in N.J.S.2C:35-15, in addition to any other disposition ordered by the court, every person convicted of or adjudicated delinquent for an offense involving a controlled dangerous substance, controlled substance analog, counterfeit substance or drug paraphernalia is assessed a mandatory penalty for each such offense.

The penalties are $3,000 in the case of a crime of the first degree; $2,000 in the case of a crime of the second degree; $1,000 in the case of a crime of the third degree; $750 in the case of a crime of the fourth degree, and $500 in the case of a disorderly persons or petty disorderly persons offense. The penalties generally are required to be imposed for each conviction, even if other aspects of the sentence are ordered to be run concurrently.

These penalties are informally known as “DEDR” penalties because they are deposited in the “Drug Enforcement and Demand Reduction Fund” (“DEDR”). The funds are appropriated for use in programs to prevent and treat drug and alcohol abuse.

The bill would expand the circumstances under which the court has discretion to allow imposition of a single penalty, instead of multiple penalties. Specifically, the bill would authorize the court to impose the penalty applicable to the highest degree offense for which the person is convicted or adjudicated delinquent under the following circumstances: (1) the imposition of multiple penalties would constitute a serious hardship that outweighs the need to deter the defendant from future criminal activity; and (2) the imposition of a single penalty would foster the defendant’s rehabilitation.

The bill also provides that, in the alternative, the defendant may propose to the court and the prosecutor a plan to perform “reformative service” in lieu of payment of up to onehalf of the DEDR penalty in appropriate cases. The bill provides that “reformative service” includes training, education or work, in which regular attendance and participation is required, supervised, and recorded, and which would assist in the defendant’s rehabilitation and reintegration. “Reformative service” includes, but is not limited to, substance abuse treatment or services, other therapeutic treatment, educational or vocational services, employment training or services, family counseling, service to the community and volunteer work.

Under the bill, the court, in its discretion, would determine whether to accept the plan, after considering the position of the prosecutor, the plan’s appropriateness and practicality, the defendant’s ability to pay and the effect of the proposed service on the defendant’s rehabilitation and reintegration into society. The court would determine the amount of the credit that would be applied against the penalty upon successful

completion of the service. The credit could not exceed one-half of the penalty amount assessed.

Any reformative service plan ordered under the bill would be in addition to and not in lieu of any community service imposed by the court or otherwise required by law. The bill provides that the court’s authority to order a person to participate in any activity, program or treatment in addition to those proposed in a reformative service plan would not be limited.

The defendant would be entitled to the credit against the DEDR penalty when he provides the court with proof of successful completion of the reformative service.

This bill embodies a recommendation of the Governor’s Strategy for Safe Streets and Neighborhoods, announced earlier this year.

7. Other New Traffic, Criminal and Civil Laws signed in January: A-4314/S-2123 w/Statement (Wisniewski, Stack, Vas/Coniglio) - Establishes pilot program for traffic control signal monitoring system.

This means your child or someone else is driving your car, passes a red light- you get a ticket in the mail and have to go to court

ACS for A-3623/SCS for S-2387 (Watson Coleman, Payne/Girgenti, Sarlo) – Establishes certificate of rehabilitation for certain persons with criminal records.

The Assembly Law and Public Safety Committee reports favorably an Assembly Committee Substitute for Assembly Bill No. 3623. This Assembly Committee substitute for Assembly Bill No. 3623 establishes a program to assist persons with criminal convictions in procuring employment or obtaining professional licenses or certifications under certain circumstances.

Under the substitute, a person with a criminal conviction could apply for a certificate that would relieve disabilities, forfeitures or bars to (1) public employment; (2) qualification for a license or certification to engage in the practice of a profession, occupation or business, except the practice of law; and (3) admission to an examination to qualify for such a license or certification, except for the bar examination, or an examination for a law enforcement, homeland security, or emergency management position.

“Public employment” is defined in the bill as employment by a State, county, or municipal agency. It does not include elected office, or employment in law enforcement, corrections, or the judiciary, or a position related to homeland security or emergency

management.

The bill’s provisions do not apply to private employers, but these employers may consider such a certificate in making employment decisions.

A-4338/S-65 (Wisniewski, Watson Coleman/Sacco, Ciesla) – Revises organization and certain functions of Motor Vehicle Commission.

A-4455/SCS for S-2536 (Caraballo, Biondi, Prieto/Gill) – Provides for licensure of massage and bodywork therapists and registration of their employers.

SCS for S-360/ACS for A-3428/2186 (Adler, Vitale, Bryant/Conaway, Greenwald, Cohen, Gusciora, Manzo) – Establishes the “New Jersey False Claim Act.” S-1977/A-4304 (Codey, Girgenti, Greenstein, Diegnan, Van Drew) – Creates the “Internet Dating Safety Act,” requiring Internet dating services to provide notice whether the service conducts criminal background screenings.

S-1978/A-4096 (Codey, Girgenti/Greenstein, Chivukula, Voss, Manzo, Vas) – Provides for mandatory term of imprisonment for luring and enticing an adult; increases mandatory term for luring and enticing a child.

S-2055/A-3943 (Sweeney, Kavanaugh/Burzichelli, Scalera) – Increases fees and penalties under the “Explosives Act.” S-2329/A-3235 (Turner/Prieto, Wisniewski, Voss) – Establishes a public awareness campaign concerning the importance of keeping a current address with MVC. SCS for S-2431/ACS for A-3035 (Girgenti, Sarlo/Barnes, Johnson, Manzo, Gordon) – Establishes as crime of the second degree unlawful possession of certain handguns.

SCS for S-2480/ACS for A-3975 (Codey/Watson Coleman, Evans) – Requires MVC to provide minor’s motor vehicle record to parent or guardian.

S-2932/A-2697 (Girgenti, Sacco/Cohen) – Establishes the transport of firearms into State for purposes of an unlawful sale or transfer as a crime of the second degree.

S-2934/A-4620 (Turner/Manzo, Johnson) – Requires owner to report loss or theft of firearm to policy within 36 hours.

S-2975/A-4591 (Buono, Weinberg/Caraballo, Vainieri Huttle, Chivukula, McKeon) – Revises laws concerning hate crimes and bullying; establishes Commission on Bullying in

Schools.

A-2158/S-206 (Mayer, McHose, Vas, Van Drew/Allen, Girgenti) – Revises qualifications to carry firearms for certain retired police officers.

A-2224/S-1981 (Van Drew, Giblin, Albano/ Bucco, Girgenti) – Authorizes trained and qualified county corrections to carry a firearm at all times in New Jersey.

A-2379/S-1757 (Caraballo, Munoz, Conaway/Vitale) – “Access to Medical Research Act”; authorizes certain persons to give informed consent for medical research if subject of research is unable to give consent.

A-2602/S-2470 (Manzo, Johnson, Sires/Turner) – Regulates sale of ammunition.

A-2976/S-3009 (Conners, Chatzidakis, Mayer, Voss/Adler) – Provides mandatory fines and community service for theft of headstones, headstone markers, flags or flag holders from grave sites.

A-3022/S-1923 (Panter, Chivukula/Karcher, Sarlo) – Prohibits payment of temporary disability benefits when disability is incurred as result of fourth degree crime or gross misconduct.

A-3451/S-2488 (Schaer, Cohen/Weinberg, Sarlo) – Makes it unlawful to discriminate against employees because of religious practices.

ACS for A-312/2591/S-2736 (Cohen, Vandervalk, Voss, Gordon/Karcher, Vitale) Requires hospitals and health care professionals to advise women of option to donate or store umbilical cord blood and placental tissue.

A-868/S-1523 (Stanley, Greenstein, Voss/Turner, Weinberg) - Requires school districts to notify DYFS of certain pupil absences.

A-2667/S-1756 (Manzo, Gusciora, Conaway, Stack/L. Connors, Inverso) - Upgrades penalties for recruiting minors and confined persons to be in criminal street gang.

A-3622/S-2304 (Vas, Chivukula, Van Drew, Wisniewski/T. Kean, Vitale) - Provides certain employment protections for employees on military leave in time of war or emergency.

More new laws at: http://www.nj.gov/governor/news/news/approved/news_archive.html 8. Hon. Emery Z. Toth to speak at DWI Update 2008 Monday, January 28, 2008 Speaker: Hon. Emery Z. Toth Judge: Woodbridge, Perth Amboy Past Chief Judge: Edison, Sayreville, Old Bridge

Also, one of the Counsel on the Chun Alcotest case with provide update on this continuing saga.

Time: 4:00-6:00 p.m.

Location: NJ Law Center One Constitution Square New Brunswick, NJ Municipal Court Section meeting New Jersey State Bar Association There is no fee for members to attend this meeting. The meeting is also free to individuals who attended the November 19 ICLE program “Handling Drug, DWI & Serious Municipal Court Cases”. For more information, contact Program Chair Kenneth Vercammen at 732-572-0500.

Judge Toth is one of the most respected Judges in the State of New Jersey. He was selected by the NJ State Bar Association to lecture at its Annual Meeting several times on current trends in Prosecution of DWI. He received high praise from the Prosecutors, Judges and attorneys in attendance.

He also was invited numerous times to serve on the panel as a faculty member for various seminars. The programs included "Municipal Court- Winning Strategies" and "Handling DWI Cases." These were very good programs and well received by those in attendance. He also addressed a joint meeting of the Middlesex County Municipal Court Prosecutors Association and Bar Association.

Judge Toth is an excellent judge who always treats the police, witnesses and litigants with respect. He was chosen to handle many high profile and complex conflict cases by the Assignment Judge based on his experience. He has served as a Municipal Court Judge for 18 years.

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KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court