May 18

Not All Insurance And Suspended Violations Require Jail

In April the Appellate Division decided State v. Pollina and State v. Luthe which held that alternative sentencing like SLAP cannot be considered when facing a conviction or plea for driving while suspended. The Court reasoned that the plain language of the statute requires incarcertion “in the county jail or workhouse”. But this month, in State v. Toussaint, the Court held that a conviction for N.J.S.A.39:3-40(e) or a conviction for N.J.S.A. 39:6B-2 permit alternative sentencing options. N.J.S.A. 39;3-40(e) provides that if a defendant drives during a period of license suspension and is involved in an accident where another person is injured, the court shall impose a sentence of 45-180 days in jail. N.J.S.A 39:6B-2 provides upon a second offense of driving without insurance, a person is subject to 14 days in jail. But the Court found that these provisions did not specify a jail term “in the county jail or workhouse”. Considering the plain language of the statute and the rule of lenity, which provides that ambiguities in a criminal or quasi-criminal statute are resolved in favor of the defendant, the Court held that alternative sentencing option like SLAP or electronic monitoring are allowed.

It seems to me the Court is sending a clear message to the Legislature to clear other sentencing options for N.J.S.A. 39:3-40. Why should a second offender subject to 1-5 days in jail have to serve it in the county jail when a violation of N.J.S.A. 39:3-40(e) driving while suspended where there is an accident and requires a minimum of 45 days in jail be allowed electronic monitoring? The Court opined that it could not change the language of the stautue and was applying the clear meaning of the statute as defined by the Legislature. But it seems to me that in reconciling these three cases, the Court is sending a message that there is an injustice in the way the statutes are written.

May 17

Questionable Recording Admitted In Evidence

Nantambu was arrested on domestic violence charges after his girlfriend said she was threatened with a gun. A later search of his apartment yeilded a handgun and he was charged with weapons offenses. The girlfriend later advised police that Nantambu offered her money for favorable testimony. Police had her call him and record the conversation. During the recording, the device fell to the ground and caused a gap in the recording. Based on the recording, police also charged Nantambu with witness tampering. Nantambu moved to suppress the recording on the theory that a two minute gap in the conversation made the recording unreliable and inadmissible. The lower court granted the motion, relying on State v. Driver, and the Apellate Division reveresed the suppression.

The State Supreme Court held that Driver establihed the standard for admissibility of a recording in a criminal trial but clarified the case. The Court held that reliability was the key factor and a highly fact-sensitive issue, requiring consideration of any gaps or defects and the purpose for which the recording was being offered. The Court found no bright line rule to exclude but rather said a Rule 104 hearing shoud be held to determine if the gaps rendered the recording fatally flawed or unduly prejudicial. The recording should be admitted to the extent it contains competent and reliable evidence. Portions deemed unreliable due to gaps shoud be redacted.

May 17

DWI Warrant For Blood Retroactive

In 2013 the Supreme Court of the United States held that a warrant is required to draw blood in DWI cases. Missouri v. McNeely. In State v. Atkins, the New Jersey Supreme Court held that, in light of McNeely, that the warrant requirement was retroactive to cases pending after McNeely was decided. In 2010 police arrested Timothy Atkins on suspicion of DWI after a single car accident. The poice obtained his blood alcohol resuts from a simple draw of blood at the hospital without having first obtained a warrant or consent. McNeely moved to suppress his blood results because of no warrant. The lower court granted the motion, but the Appellate Division reversed the suppression ruling that the police relied on pre-McNeely law which permitted the warrantless blood draw based on the exigency inherent in the natural dissipation of blood alcohol. But the New Jersey Supreme Court held, pursuant to State v. Wessells, that a new rule of law established for the conduct of criminal prosecutions, must apply retroactively for all cases not yet adjudicated. Here again, counsel must be proactive in defending a client especially when there is a new change in law.

May 17

Admissibility Of DWI Evidence

In State v. Kuropchak, the Appellate Division considered the admissibility of evidence in DWI cases. As an aside, the Court held that the failure to admit foundational documents required in State v. Chun required reversal. No surprise here. But the Court went on to hold that admitting the Drunk Driving Questionnaire (DDQ) and the Drinking Driving Report (DDR) was also an error. The DDQ and DDR are reports filled out by police officers in connection with a DWI stop. The municipal court wrongly admitted the reports under the business records execption to the hearsay rule. The Appellate Division held that the exception did not apply and the documents were hearsay. Counsel shoud be careful to challenge the admission of documents to protect client’s rights and not allow issues like this to go without objection. Epecially in DWI cases, you need a lawyer who is up to date on the law.

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