In this issue:
1. PTI completion on assault by auto charge barred DWI prosecution.
2. Driver Guilty of Refusal if officer had reasonable cause to take test
3. Refusal reversed where officer read outdated statement.
4. Domestic violence reversed where Family Judge did not make findings
5. Challenge to DMV/MVC action needed to be filed in Appellate Division
6. If You Are A Victim Of A Dog Bite We Can Help
7. Do You Have A Will?
8. Upcoming events:
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1. PTI completion on assault by auto charge barred DWI prosecution. State v. Caldwell (App. Div. decided December 14, 2004). A-4800-03T5, Not approved for publication.
Law Division order dismissing with prejudice a driving while intoxicated charge affirmed; after a single-vehicle accident, the defendant was charged with failure to exhibit a valid insurance card, driving while intoxicated, and assault by auto; the defendant conditionally pleaded guilty to assault by auto, and the Law Division dismissed that charge pursuant to the plea agreement after the defendant completed a pretrial intervention program; on remand to the Municipal Court, the defendant was found guilty of the insurance card charge, and the DWI charge was dismissed on double jeopardy grounds; contrary to the State's argument on appeal, jeopardy had attached because the assault by auto charge merged with the DWI charge and because the defendant was found guilty when he entered his conditional plea. Source: NJ Lawyer Facts-on-Call Order No. 17409.
2. Driver Guilty of Refusal if officer had reasonable cause to take test. State v. Sokolowski (App. Div. decided October 7, 2004). A-268-03T3, Not approved for publication.
Conviction of refusal to submit to a Breathalyzer test and sentence as a third-time offender affirmed; contrary to the defendant's argument, the arresting officer had reasonable cause to ask the defendant to take the test where the officer observed the defendant entering his home, where the defendant was "unsteady on his feet," where the defendant smelled of alcohol, where the defendant admitted that he had just parked his car, and where the car had damage to the front end and traces of debris in the front bumper; moreover, the defendant's right to a speedy trial had not been violated. Source: NJ Facts-on-Call Order No. 17143.
3. Refusal reversed where officer read outdated statement. State v. Kayes (App. Div. decided October 19, 2004). A-759-03T3, Not approved for publication.
Convictions for refusing to submit to chemical tests and indecent exposure by urinating in public reversed; because the police officer read an outdated standardized refusal statement to the defendant, his conviction for refusing to submit to a chemical test was reversed; the officer's failure to sign the complaint did not require the dismissal of the urinating in public charge because the statute of limitations under the ordinance was one year and because the direction of the Municipal Court to the officer to sign the complaint cured the defect within the limitations period; however, the State failed to satisfy its burden of establishing indecent exposure or an act in a public place within the meaning of the ordinance where the defendant did not expose himself to anyone other than a consenting passenger in his car and where he had taken precautions to ensure that he would not be seen by pulling several feet off the road into a dark parking lot and by standing behind his car. Source: NJ Facts-on-Call Order No. 17186.
4. Domestic violence reversed where Family Judge did not make findings. Johnson v. Johnson (App. Div. decided October 21, 2004). A-4566-02T3, Not approved for publication.
Final domestic violence restraining order entered against the defendant husband reversed; the Family Part did not make specific findings to support its conclusion that the defendant had committed the domestic violence acts of simple assault and harassment against the plaintiff wife; the Family Part also incorrectly defined "simple assault" as an "unwanted touching" because the definition did not include the defendant's state of mind and because the court did not address whether the plaintiff had sustained "bodily injury"; furthermore, the Appellate Division was unable to review whether there was an "unwanted touching" that constituted harassment because the Family Part failed to make any findings as to the defendant's mental state. Source: NJ Facts-on-Call Order No. 17197.
5. Challenge to DMV/MVC action needed to be filed in Appellate Division Lerman v. Legreide (App. Div. decided January 19, 2005). A-2742-03T5, Not approved for publication.
Dismissal of the plaintiff's complaint for lack of jurisdiction and failure to state a claim affirmed; the Division of Motor Vehicles suspended the plaintiff's driving privileges after he did not respond to a Randolph Township summons for failing to stop before entering an intersection; the plaintiff sued the Director of the Division, seeking a declaration that the procedures used to suspend his driving privileges were null and void as well as the restoration of his driving privileges; the Law Division properly dismissed the complaint (1) because it should have been filed directly with the Appellate Division, (2) because the procedures used by the Township were consistent with Rule 7:8-9 (b)(1), and (3) because the Division's actions were authorized by N.J.S.A 39:5-30; contrary to the plaintiff's argument, §39:5-30 is not penal and must be construed liberally. Source: NJ Facts-on-Call January, 2005
6. If You Are A Victim Of A Dog Bite We Can Help
Each year, nearly five million people are bitten by dogs. A dog bite can result in serious, long-term and life-altering injuries.
If you or a family member is bitten by a dog, call us. In New Jersey, owners are liable for injuries their dog causes even if the dog has not hurt anyone before. We have handled many dog bite cases and have recovered large sums of money for victims. We can help you in the event you are bitten by a dog. Call promptly so you do not hurt your claim because of delay.
7. Do You Have A Will?
Every adult should have an up-to-date Will. Most of us know that. Yet over half the adults in the U.S. die without a Will.
If you do not have a Will, call us. Wills provide many benefits, including making sure your property is distributed how you want after you die, and that the person who manages your estate during probate is your choice. If you have minor children, a Will lets you select their guardian in case one is ever needed. Laws for making Wills are specific, and we can prepare a Will that carries out your wishes and is made according to the law.
8. Upcoming events:
June 13 East Brunswick Senior Center- New Probate Law & Living Will Seminar- Free 12 noon [Volunteer needed to help distribute materials to Seniors]
June 15 South Plainfield Senior Center- New Probate Law & Living Will Seminar- Free 12 noon
June 18 at 8:30 am- Sheehan Classic 5 Mile Charity Race is in Red Bank . Good Free food afterwards. I am helping put together a team of over 40 year old men. Afterwards, the Rumson Hash runners traditionally have a 10:17 run, near the Red Bank train station. If anyone is running Sheehan race, email Ken V.
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Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
PHONE 732-572-0500 (Fax) 732-572-0030
website: www.njlaws.com
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