2053 Woodbridge Avenue - Edison, NJ 08817

Thursday, December 15, 2011

NJ Laws Email Newsletter E377

NJ Laws Email Newsletter E377
Kenneth Vercammen, Attorney at Law

October 5, 2011

Office Phone Number:

(732) 572-0500


In This Issue:

1. If Someone Dies Without A Will, Or the Will is Considered Invalid.

2. Commercial DWI Refusal and General Refusal Distinct Statutes.

3. Failure to be able to give Sufficient Breath Samples may be Refusal.

4. Welcome Fall 2011 Law Clerks

5. Welcome Fall 2011 Office Staff Attorneys

6. Next Events

7. Grass Cutting/Lawn Maintenance Needed

8. HELP WANTED- Clerk for Law Office


1. If someone Dies without a Will, or the Will is Declared Invalid because it was Improperly Prepared or is Not Admissible to Probate:

* Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

* State law determines who gets assets, not you

* Possible additional State inheritance taxes and Federal estate taxes

* Judge determines who gets custody of your children

* If you have no spouse or close relatives the State may take your property

* The procedure to distribute assets becomes more complicated

* It may also cause fights and lawsuits within your family

When loved ones are grieving and dealing with death, they shouldn't be overwhelmed with financial concerns.

Who don't you want to receive your assets?

Who is not the best choice to raise your children, or safeguard a children's money for college? Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play games?

Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:

* Marriage, death, birth, divorce or separation affecting either you or anyone named in your Will

* Significant changes in the value of your total assets or in any particular assets, which you own

* A change in your domicile

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will

* Annual changes in tax law

* Changes in who you like


Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.

2. Commercial DWI Refusal and General Refusal Distinct Statutes. State v Nunnally 420 NJ Super. 58 (2011).

In this appeal the court addressed the statute governing refusal by a commercial vehicle driver to submit to a breath test (CDL refusal), N.J.S.A. 39:3-10.24, and the general statute penalizing refusal to submit to a breath test (general refusal), N.J.S.A. 39:4-50.4a. The court held that a charge of CDL refusal or general refusal requires, as a predicate, an arrest under the corresponding DUI statute, N.J.S.A. 39:3-10.13 or N.J.S.A. 39:4- 50. Here, where defendant was arrested under the CDL statute, N.J.S.A. 39:3-10.13, and then refused to submit to a breath test, he could not be prosecuted for general refusal, N.J.S.A. 39:4-50.4a. The court also held that, because citing the wrong refusal statute is not a technical defect, R. 7:2-5, and because CDL refusal is not a lesser included offense of general refusal, R. 7:14-2, the State was precluded from amending the complaint to charge defendant with CDL refusal after the ninety-day statute of limitations expired. For future guidance, the court noted that a commercial vehicle driver whose conduct violates both the CDL and general DUI statutes may be arrested and charged under either or both statutes. 5-04-11

3. Failure to be able to give Sufficient Breath Samples may be Refusal. State v. Schmidt 206 NJ 71 (2011)

Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, defendant remained among those who have consented and, hence, was not entitled to reading of the Additional Statement.

1. Central to the inquiry in this appeal are the dual questions of what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie. Save for penalties that may be imposed under N.J.S.A. 39:4-50.4a, the substance of the standard statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch. Once the question of what must be disclosed in the Standard Statement is laid to rest, the corollary question of how much must be disclosed seems self-evident: provided the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied. At this Court's behest, the Executive Branch added the Additional Statement at issue in this appeal, but limited its application solely to those certain delineated instances, including where a defendant's response is "ambiguous or conditional." Because defendant unequivocally consented to the breath test, his later failures to provide the necessary volume and length of breath samples did not render his earlier consent ambiguous or conditional. Thus, the Court is compelled to reject the Appellate Division's extension of the Additional Statement as unwarranted. Once consent is given, it cannot be vitiated, impeached or otherwise revoked by a defendant's unilateral actions aimed at defeating the testing process. To hold otherwise would result in a conclusion at odds with the clear purpose of the entire intoxicated driver statutory scheme.

2. No due process notice considerations have been raised by the parties to this appeal in respect of defendant's failure to submit to the test and, hence, the Court need not address that question. That said, for the avoidance of future doubt and to provide consistency of administration, the inclusion in the main body of the Standard Statement of a notice to a DWI arrestee that the failure to provide sufficient breath volume for a sufficient period of time will constitute a refusal to submit to the breath test is both reasonable and salutary. Therefore, the Court recommends to the Attorney General that the main text of the Standard Statement be supplemented to address such instances.


Kenneth Vercammen and Associates would like to welcome the following law clerks who are participating in this year's Fall Internship Program!

Alexander Kim, who currently attends The College of New Jersey

Bobbi Asper, who currently attends Rutgers University

Nadya Comas, who currently attends Rutgers University

Rania Ibrahim, who recently graduated from Montclair State University

Nicole Wise, who recently graduated from Fordham Law School

Reena Shah, who recently graduated from Benjamin Cardozo School of Law

5. Kenneth Vercammen and Associates would also like to welcome the following Office Staff Attorneys!

Betram Okpokwasili, Esq.

John Leschak, Esq.

Frederick Aurelien, Esq.

Andrew Gayed, Esq.

6. Next Events

Oct. 8, 2011 Rutgers v Pitt 3:30 pm

Oct. 9, 2011 Deal 5k Deal hot dogs & free beer, swim in Ocean after run. Bring a wet suit.

Oct. 12, 2011 Freezing Cold Hash Volunteer meeting 7:45 at Mike's Courtside Sports Bar & Grill, 1 Elm Row New Brunswick, NJ 08901, Run with Raritan Valley RVRR in Highland Park first. Email Ken V if attending and what type of sandwich you want. Volunteers receive free admission to Freezing Cold Hash and Free Living Will.

Oct. 15, 2011 Rat Race Saturday, 10:30am A hash style of running or walking 1 - 4 miles over woodland trails/swamp & stream followed by a fantastic party of beer, buns, burgers, pizza pie, music and games for prizes. Boston's, corner of Fisher Blvd. and Hooper Avenue Toms River, NJ http://www.facebook.com/event.php?eid=10150115430305704

Oct. 15, 2011 Heights Pride 5k Spring Lake Hts

Oct. 15, 2011 Interlaken 5k 11am

Oct. 16, 2011 Seaside Half Marathon & 5K 13.1 mile run, 10am, 13.1 walk, 9am, 5k 10:10 Seaside Park NJ

Oct. 16, 2011 Sunday East Brunswick 1pm 5k & 10k RVRR well run event Road closed to traffic www.ebrr.org

7. Grass cutting/Lawn Maintenance Needed

Brendan has returned back to U of Miami Florida. The office needs lawn cutting, weed-wacking and sidewalk edging for October. Please call 732-572-0500 with price quote.

8. HELP WANTED- Clerk for Law Office- envelope stuffing, misc. clerk duties


2 hours per day Monday- Friday

You pick the hours

$6.00 per hour


-Adding client names to computer database, prepare letters, and work on client traffic ticket matters.

-Preparation of legal documents on Computer and mail to courts

-Telephone Answering

-General Office duties in Law Office

-Update mailing/ client lists and learn marketing

-All other work needed including working on personal injury cases

Must be dependable and committed to perfection.

Call Law Office of Kenneth Vercammen & Associates

Check out our website at www.njlaws.com to see what we are about.

Editorial Assistance provided by Bobbi Asper. Ms. Asper is currently a senior at Rutgers University and is participating in our Fall Internship Program.