Fall 2010 Mun Law Review

Fall 2010 Municipal Law Review 1. Breath Test Warnings Now Must Be Given in Spanish. State v. Marquez ____ NJ _____ (2010) (A­35­09) 7/12/10

In this case involving a conviction for refusing to submit to a chemical breath test, the Court holds that New Jersey’s implied consent law, N.J.S.A. 39:4­50.2, and refusal law, N.J.S.A. 39:4­50.4a, require proof that an officer requested the motorist to submit to a chemical breath test and informed the person of the consequences of refusing to do so. The statement used to explain to motorists the consequences of refusal must be given in a language the person speaks or understands. Because defendant German Marquez was advised of these consequences in English, and there is no dispute that he did not understand English, his refusal conviction is reversed.

2. DL Suspension on Traffic Ticket Requires Willful Violation. State v. Moran ______ NJ _______ (2010) (A­55­09) 7/13/10

The license suspension provision of N.J.S.A. 39:5­31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5­31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5­31 and enunciates sentencing standards to guide municipal court and Law Division judges.

3. Police Could Not Lift Up Shirt for Terry Frisk. State v. Privott _____ NJ ______ (2010) (A­7­09) 6/29/10

Based on the totality of the circumstances, there were specific and particularized reasons for the officer to conduct an investigatory stop and to frisk defendant Tysen R. Privott.

However, the officer’s conduct in lifting defendant’s shirt exceeded the scope of a reasonable intrusion that is permitted as part of a Terry stop.

4. Protective Sweep After Gunshot Sometimes Permitted on Private Property. State v.

Davila _____ NJ _____ (2010) (A­20­09) 7/14/10

A protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. Law enforcement officers may conduct a protective sweep only when (1) the officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. The sweep will be upheld only if it is (1) conducted quickly, and (2) restricted to areas where the person posing a danger could hide. When an arrest is not the basis for entry, the police must be able to point to dangerous circumstances that developed once the officers were at the

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scene.

5. Abandoned Bag Permits Search. State v. Carvajal 202 NJ 214 (2010) (A­5­09) The State satisfied its burden of proving by a preponderance of the evidence that the duffel bag was abandoned. Carvajal denied having any ownership or possessory interest in the bag, and the police attempted to identify other potential owners. Carvajal therefore had no standing to challenge the warrantless search of the bag.

6. If not Enough Breath Supplied on Alcotest, Officer Must Read Additional Warnings.

State v. Schmidt 414 NJ Super. 194 (App. Div. 2010) A­2237­08T4 In this opinion the court hold that (1) the police are required to comply with N.J.S.A. 39:4­ 50.2(e) by reading the standard language concerning the consequences of a refusal to take an Alcotest (part two of the Standard Statement) when a defendant unequivocally agrees to submit to an Alcotest but then fails without reasonable excuse to produce a valid sample and (2) the police have the discretion to discontinue the Alcotest and charge the arrestee with refusal without affording the arrestee the maximum eleven attempts that the Alcotest machine permits.

7. No More than 180 Days Jail with a Municipal Court Case. State v. Federico ______ NJ Super. ____ (App. Div. 2010) A­0678­08T4 07/12/10 Defendant, convicted at a bench trial in municipal court and on trial de novo in the Law Division, may not receive a custodial sentence of more than 180 days for all consolidated charges disposed of in a single proceeding.

8. No Warrantless Search of Truck Sleeper Compartment based on smell of weed.

State v. Pompa 414 NJ Super. 219 (App. Div. 2010) A­0139­08T4

Following his conviction of various drug offenses, defendant appealed the denial of his motion to suppress in excess of thirty pounds of marijuana seized by police without a warrant from a closet in the sleeper cabin of defendant's tractor trailer. The court held that the closely regulated business exception permitted a warrantless administrative inspection of certain areas of the tractor­trailer, but concluded that the search turned unlawful when it progressed into unregulated areas without the exigent circumstances required by State v. Pena­Flores, 198 N.J. 6, 28 (2009).

9. No Statement Admissible by Non­Appearing Witness. State v. Basil ____ NJ ____ (2010) (A­34­09) 7/20/10

The on­scene identification by a citizen informant and corroborative discovery of the weapon gave officers probable cause to arrest defendant and, therefore, defendant’s volunteered statement to police should not have been suppressed as the product of an

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unlawful arrest. In addition, the members of the Court being equally divided, the judgment of the Appellate Division is affirmed, holding that the non­appearing witness’s testimonial hearsay statement was inadmissible under the Sixth Amendment Confrontation Clause. The admission of the statement had the clear capacity to cause an unjust result and was not harmless error beyond a reasonable doubt.

10. Investigating Stop Permitted where Police had Articulable Suspicion of Drugs. State v. Mann ___ NJ____ (2010) (A­56­09) 8/4/10 The trial court fairly concluded that the police had reasonable and articulable suspicion to support an investigatory stop of defendant and that the seizure of drugs from both locations was lawful.

12. No Suit versus Police Despite Arrest on Mistaken Identification. Bayer v. Township of Union ____ NJ Super. ___ (App. Div. 2010) A­1482­07T2 07/07/10

In this case, where defendant was arrested based upon a mistaken identification, the court affirm the trial court's dismissal of plaintiff's 42 U.S.C.A. § 1983 claim on summary judgment because a careful review of the undisputed facts reveals that a reasonable police officer would have believed there was probable cause to arrest plaintiff. That was a determination appropriately made by the trial court. We also affirm the trial court's dismissal of plaintiff's Tort Claims Act claim because plaintiff failed to provide timely notice pursuant to N.J.S.A. 59:8­8.

Editorial Assistance provided by Associate Editor Louis Incatasciato, a second­year student Brooklyn Law School. Mr. Incatasciato participated in the Law Clerk Internship Program at the Law Office of Kenneth Vercammen and Associates.

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Breath Test Warnings Now Must Be Given in Spanish. State v. Marquez 2. DL Suspension on Traffic Ticket Requires Willful Violation. State v. Moran 3. Police Could Not Lift Up Shirt for Terry Frisk. State v. Privott 4. Protective Sweep After Gunshot Sometimes Permitted on Private Property.

State v. Davila 5. Abandoned Bag Permits Search. State v. Carvajal 6. If not Enough Breath Supplied on Alcotest, Officer Must Read Additional Warnings. State v. Schmidt 7. No More than 180 Days Jail with a Municipal Court Case. State v. Federico 8. No Warrantless Search of Truck Sleeper Compartment based on smell of

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weed. State v. Pompa 9. 9. No Statement Admissible by Non­Appearing Witness. State v. Basil 10.

10. Investigating Stop Permitted where Police had Articulable Suspicion of Drugs. State v. Mann 11 12. No Suit versus Police Despite Arrest on Mistaken Identification. Bayer v. Township of Union

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