Revised: June 1, 2009 MUNICIPAL COURT LAW REVIEW SUMMER 2009 1. Six-month Alcotest inspection applies after March 17, 2008. State v. Pollock 407 NJ Super. 100 (App. Div. 2009) Defendant appealed his conviction for a per se violation of N.J.S.A. 39:4-50, driving with a blood alcohol concentration of 0.08 percent or more. The Court is called upon to determine whether the semiannual-recalibration requirement for Alcotest machines, established by the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), is applicable to cases in which the test was administered prior to Chun and in compliance with the then existing annual-recalibration protocol. Because the court determined that the change mandated by Chun was not intended to be applied to such, the court affirmed the conviction. 2. 3 year old’s statements admissible under tender years exception to hearsay. State v. Coder ___ NJ ___ (Decided May 4, 2009) A-28-08 In defendant’s criminal trial on charges of sexual assault on a minor, the out-ofcourt statements by the victim – a three-year-old child – as testified to by her mother, were properly admitted because the statements were relevant and admissible under the tender years exception to the hearsay rule. Additionally, because the child’s statements were not testimonial, they did not implicate the defendant’s Confrontation Clause rights. 3. PTI can be conditioned on a plea to a traffic offense. State v. Mosner 407 NJ Super. 40 (App. Div. 2009) Admission into the Pre-Trial Intervention program can be conditioned on the defendant's guilty plea to a motor vehicle offense carrying a mandatory 180-day term of imprisonment where the defendant's attitude would render pretrial intervention ineffective. 4. Police cannot search car passenger compartment if occupant already arrested. Arizona v. Gant 129 S. Ct. 1710 (2009) Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that an arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. The Arizona Supreme Court's reversal of Defendant's drug conviction is affirmed. 5. Ordinance can bar taking of photos for sale. State v. Chepilko 405 NJ Super. 446 (App. Div. 2009) The taking of photographs of persons walking on the Atlantic City Boardwalk and then attempting to sell the photographs to the subjects does not constitute expressive
1