E553
Recent cases
1. Supreme Court rules Breath test results produced by Alcotest machines are inadmissible if not calibrated
2. Estate Planning pending Divorce or Break Up.
3. Next community events
4. Fun October Upcoming Running Races
Recent cases
1. Supreme Court rules Breath test results produced by Alcotest machines are inadmissible if not calibrated using a NIST-traceable thermometer.
State v. Cassidy (A-58-16; 078390)
The Special Master's findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible. This opinion calls into question any test result involving a machine the sergeant who handled, including devices used by local police in Middlesex, Monmouth, Ocean, Somerset, and Union counties between 2008 and 2016.
If someone plead guilty to a DWI in Central NJ prior to 2016 where State Trooper Marc Dennis tested the machine, the driver may be able to file a petition for Post Conviction Relief. 20,667 drivers had DWI test using Alcotest machines improperly calibrated by Tpr. Dennis.
HELD: The Special Master's findings are supported by substantial credible evidence in the record, and the Court adopts them. Breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible.
1. This case is justiciable despite defendant's passing. The Court will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. The reliability and admissibility of thousands of breath samples, often used as the sole evidence to support a conviction, is of significant public importance.
2. Scientific test results are admissible in a criminal trial only when the technique is shown to be generally accepted as reliable within the relevant scientific community. Chun, 194 N.J. at 91. Although the Court recently adopted the factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), and a methodology-based approach for determining scientific reliability in certain areas of civil law, the Court has not altered its adherence to the general acceptance test for reliability in criminal matters. The proponent of the technique has the burden to clearly establish general acceptance and may do so using
(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions. The party proffering the evidence need not show infallibility of the technique nor unanimity of its acceptance in the scientific community.
3. Of the State's witnesses, the Special Master found only the testimony of Dr. Brettell worthy of substantial weight; he found defendant's expert credible. The Court defers to and adopts the Special Master's detailed credibility findings.
4. Based on the credible testimony, the Special Master determined that accurate temperature readings of the simulator solutions are "the foundation upon which the entire calibration process is built." The Special Master found NIST traceability "essential" to confidence in the Alcotest's results and that the two Draeger-manufactured probes were not NIST-traceable and were insufficient substitutes for the use of a NIST-traceable thermometer. The Special Master also found it particularly significant that the NIST-traceable thermometer was the only temperature measuring device used in the calibration process that was independent from the Alcotest and not manufactured and calibrated by Draeger. The Special Master found it "extremely important and persuasive" that current protocol treats the failure to achieve an in- range temperature reading using the NIST-traceable thermometer as an event of sufficient magnitude to abort a calibration. The Special Master reasoned that such facts clearly cut against the State's argument that the use of the thermometer is an unnecessary redundancy. Further, the Special Master rejected the State's theory that ten simultaneous failures would need to occur for the certainty of Alcotest results to be compromised, finding instead that the evidence showed that three relatively minor errors could cause undetected miscalibrations. The Special Master determined that the State had not shown that other states' practices revealed general acceptance of the reliability of Alcotest results without the use of a NIST- traceable thermometer. Because the Special Master's findings are supported by substantial credible evidence in the record, the Court adopts them.
5. Applying the general acceptance standard to the Special Master's findings, the Court holds that the State failed to carry its burden and affirms the Special Master's conclusion. Temperature measurements that are NIST-traceable are generally accepted as reliable by the scientific community. Part of that reliability lies in the fact that the level of uncertainty of each temperature measurement is known. The two Draeger-manufactured probes fail to meet the NIST's standards and the measure of uncertainty in their temperature readings is unknown. The Court does not accept the State's contention that the risk of miscalibration is infinitesimal due to the numerous other fail-safes in the calibration procedure. As Dr. Brettell testified, it was that very fear of a laboratory bias that led him to include the NIST- traceable thermometer in the calibration procedure.
6. The Court orders the State to notify all affected defendants of its decision that breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible and commends to the State that it require the manual recording of the NIST- traceable readings going forward. Further, the Court lifts the stay on all pending cases so that deliberations may commence on whether and how those cases should proceed. For those cases already decided, affected defendants may now seek appropriate relief. Because the State waited approximately a year to notify the affected defendants, the Court relaxes the five-year time bar, R. 7:10-2(b)(2), in the interests of justice. The Court asks the Director of the Administrative Office of the Courts to monitor these cases and recommend how best to administer them in the event any special measures are needed. Finally, as to defendant Cassidy, the Court exercises its original jurisdiction and vacates her conviction.
2. Estate Planning pending Divorce or Break Up.
By Kenneth A. Vercammen, Esq. Author ABA's "Wills & Estate Administration" book
If separated and suddenly die, your spouse will still receive either all of a minimum of 50% of your probate assets if no valid Will. Don't rely on a cheap online document. Have your Will done by a estate planning attorney. Don't try to do your own electrical work. Don't try to do your own legal work.
In planning, make sure your assets go to your loved ones or favorite charity, not an "ex". Therefore, we advise our separated or divorced clients to do the following:
1) Have an Estate Planning Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.) Usually a new executor is selected, who will also serve as funeral agent. Do not wait until after the Holidays to get this done.
Although in many states under law a divorce removes the ex spouse as a beneficiary, it does not remove the ex as executor or receiving assets under a bank POD or joint account. Don't ever use with a cheap online form that often is not filled out correctly. Self prepared documents are often not witnessed right and are not admitted to probate. Have an experienced attorney prepare the estate planning documents who will do it right. I could change my car oil and repair the lawnmower, but I now prefer an experienced mechanic do that. You can also create specific bequests so nice jewelry or family heirlooms go to a selected child. Otherwise the executor can just sell them at the pawn shop. You can also direct in your Will a child be excluded from inheriting. Example- they testified against you in divorce court.
2) Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old Power of Attorney revoked. This means your attorney or you should send notices to banks and your accounts to indicate the prior Power of Attorney is invalid. If you have children over age 18, have your attorney prepare a Power of Attorney for the over 18 children so the custodial parent can still have access to their records and pay their bills if they are in an accident.
3) Select a new beneficiary on assets you may own, such as stocks, transfer upon death brokerage accounts, bank accounts, IRA, retirement accounts, 401k, payable upon death accounts POD , and other financial assets. Make sure you see the actual change in beneficiary in writing. Don't rely on a phone call from the company that accounts are revised. Even if a court approved divorce decree states that a beneficiary should be changed, make sure you have changed the beneficiary designations. Remember, even a new Will does not change account beneficiaries on non-probate assets.
Change passwords on all online accounts and notify them in writing that the former spouse is not permitted excess to records.
4) Change your beneficiary under your own life insurance, whether whole life insurance or term insurance. Again, don't just rely on language in a divorce decree to make sure your wishes are followed. If the ex-spouse is required to obtain life insurance to pay to you or your children, you want to see proof of the insurance in writing with beneficiary designation.
5) Contact your employer's human resources and change the beneficiary on pension, stock options, life insurance, and other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.
6) Keep your personal papers at a location where an ex-spouse or the child's parent can't steal or destroy them.
7) If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody. You don't want your ex in-laws to have custody of your children or access to the children's money. A new Will specifically shows a Surrogate and Probate Judge you're your wishes are. If no Will, then a judge can only guess.
Also set up a Trust in the Will so children and grandchildren receive funds when they are 21, 25 and 30. Preserve money for college and necessary expenses, not a windfall to buy an expensive car when they turn 18. Also don't make the minor children beneficiary of big life insurance policies, because they automatically receive when they turn 18. Instead, you can make your estate the beneficiary of life insurance and other accounts. How many 18 year old kids would spend money wisely? Seek assistance of estate planning attorney, don't try to do everything yourself.
A trust also protects the beneficiary if there is a lawsuit and judgment against them.
8) Make sure the trustee for any funds designated for your children is the "right" trustee. The former in laws may no longer be the best choice.
9) Re-title real estate, cars and other assets in joint names. Usually a new Deed will have to be prepared. If there is a mortgage, either a refinance or consent of mortgage company to remove your name from the mortgage. [Good luck with that.]
10) In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to "elect against the Will". The disinherited spouse may try to elect against the Will and try to obtain one third of the estate. Your attorney can explain how you can protect yourself and your children.
11) Have a new Living Will / Advance Directive for health care/ medical proxy prepared to remove the ex and select a family member you trust with last medical wishes. The Living Will should contain new HIPPA language to advise doctors and hospital who should have access to medical information. You don't want an estranged person to be able to make Medical decisions or "Pull the plug". A divorce decree does not remove the ex-spouse on Medical Power of Attorney/ Living Will. They should have a new Living Will prepared.
Separated persons
Some clients are not aware they can have a new Will and other estate planning documents prepared prior to a formal divorce decree. To the contrary, our office drafts Will for individuals in marital difficulty who want to protect their assets and children in the event of an unexpected, sudden death. A personal can have a new Will and estate planning documents without telling their spouse.
If spouses are living together, the surviving spouse in many states can Elect against the Will and obtain 1/3 of the augmented estate. See Uniform Probate Code 2-201. A married person can also confidentially revoke a Power of Attorney, Living Will, Trust etc. However, the original attorney cannot prepare new documents if the attorney also prepared documents for the other spouse. The original attorney in some states may be required to notify the other spouse. Therefore, a new, independent attorney is suggested whose only loyalty is to you.
It is important to prepare new documents if separation has started or is inevitable since someone does not want their some of be ex to make financial and medical decisions. However, typically a spouse cannot be removed as a beneficiary under pensions, etc without that spouse's written consent.
You can select a funeral agent so your estranged spouse does not handle funeral arrangements.
Also speak with your divorce attorney to inquire if you can take out 50% of assets in a joint account and deposit in a new account payable death to adult children, not the estranged spouse.
If you own a small business, prepare a contingency plan if you become disabled for someone to run your business.
Second marriage
If you decide to get remarried, have your attorney prepare a prenuptial agreement, so your children can inherit your assets. You want your children, not new spouse, to receive your assets if you pass away. In many states, persons put their assets into Trusts for the benefit of a child. However, if the trust is revocable, Medicaid will include the trust assets as available money. In blended families, irrevocable trusts are useful because a Will can be revocable by a competent person without telling their spouse.
If You Have No Will after someone divorces:
If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:
When loved ones are grieving and dealing with death, they shouldn't be overwhelmed with Financial concerns and estate problems if there is no Will or not prepared or signed properly.
Who don't you want to receive your assets?
Who is not the best choice to raise your children, or safeguard your 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?
ESTATE PLANNING TO PROTECT CHILDREN
There may come a time when an unmarried parent is unable, due to physical or mental incapacity, to take care of their minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for persons with minor children as they are for senior citizens.
Guardians
Most individuals appoint the parent to act as Guardian of the person and property of their minor children. It is suggested that your Will include a clause which provides that in the event the other parent predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.
Sometimes the divorce is amicable and the person may still wish to have their ex -spouse be executor of their Will or Trustee of a trust for children. New estate planning documents should still be signed after the divorce to confirm they want to ex to remain involved in a potential estate.
Trustee for funds
Select a trusted person, your close relative or friends, who will invest and hold your children's money. If divorced or unmarried, most people do not select the other parent. In your Will and Trust you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select.
If you do not write a Will, the government has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself!
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In the havoc after a break up, many persons forget to have a Will done to assure assets and decisions are taken out of the hands or the ex spouse and ex spouse's family.
In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans foolishly die without leaving a Will. In the absence of a Will or other legal arrangement to distribute property at death, the problems often arise and a Judges decides who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.
Conclusion
While the preceding article contains possible items to be discussed with your family, attorney and executor, the article is by no means exhaustive. A number of these items may not be applicable in your situation, and probably there are many others that are applicable. The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.
3. Next community events
Veteran's month programs:
November 27 Woodbridge Library at 7pm
Wills, Estate Planning & Probate Seminar free & open to the public
Woodbridge Public Library
1 George Frederick Plaza
Woodbridge NJ 07095
November 28 VFW Asbury Park Post 1333
Wills, Estate Planning & Probate Seminar at 6pm -free & open to the public
VFW Asbury Park Post # 1333 [Regular meeting is 7pm]
701 Lake Ave.P.O. Box 693
Asbury Park, NJ 07712
732-988-3440
4. Fun Upcoming Running Races & Charity events
If you are attending any of these charity races, please call or email Ken V. at Kenv@njaws.comOften we car pool from East Brunswick /Edison or meet at these events. I update this list at http://vercammensport.blogspot.com
November 23, 2018
Born to Run 5 mile Freehold 11am Friday great Freehold FARC event
November 24, 2018
Crazy Eddie Memorial Hash run- not a race, trail hash with beverage stops Saturday Rumson Hasher HHH
November 25, 2018
Navesink Challenge 15k & 5k 10am 10:10 for 5k Post race in Red Bank 10 W Front St.
Red Bank, NJ 07701 [Ken V runs 5k]
December 1, 2018
Big Chill 5k Rutgers New Bruns 9:05
December 2, 2018
Jingle Bell Run for Arthritis 5k run 9:30 Metuchen HS NJ
December 8, 2018
St. Paul 5k at North Brunswick Community Park off Rt 130
9am to benefit St. Paul Milltown
January 5, 2019
Secret Mystery Winter Trail Run 2.5 mile & 5 Mile Group Run 10:17am Start Location: Secret Mystery wooded area North Brunswick to be emailed to pre-registered. Only $20.00 via https://runsignup.com/Race/NJ/NorthBrunswick/SecretMysteryRun
Pope Francis blesses N.J. Bar association and other pilgrims
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