Newsletter NJ Laws by Kenneth Vercammen, Esq.: E698 VercammenLaw News

E698 VercammenLaw News

1 Recent cases FRO reserved where Judge did not find need to prevent imminent future harm or risk of future abuse

2 Wife posting video asking for assistance to obtain Jewish get was not harassment under DV law

3 Directive #04-24 Regarding Ignition Interlock Devices in DWI cases based on New Law

4 Trust for care of animals in Will.

5 Extreme risk protection order to remove firearms (EPRO)

1 Recent cases: Restraining Order FRO reversed where Judge did not find need to prevent imminent future harm or risk of future abuse S.Y.R. v. R.R.

Defendant appealed trial court's entry of a FRO pursuant to the Prevention of Domestic Violence Act. Plaintiff filed a complaint for divorce and obtained a TRO that required defendant to move out of the marital home. In support of the TRO, plaintiff asserted that defendant had twice harassed her in the prior year. Upon final hearing, plaintiff referred to the two incidents as sexual assaults, but the TRO alleged only harassment. Plaintiff admitted that she acquiesced on both occasions, that defendant did not use force or restrain her in any fashion, and that such conduct had occurred throughout their thirteen-year marriage. Plaintiff also testified about unrelated incidents, none of which were near in time to her application for a TRO. Instead, the application was filed within hours after defendant filed an answer to plaintiff's divorce complaint. Defendant testified the parties attended marital counseling in which they were counseled to have intimate relations to repair their marriage, and that he never proceeded with such relations unless plaintiff consented.

Trial court granted an FRO. Defendant appealed, contending trial court erred in concluding plaintiff proved the predicate act of harassment under the PDVA, and plaintiff failed to prove the threat of risk of future abuse. Court reversed, reinstated the TRO, and remanded for a new FRO hearing before a different judge. Court admonished that trial court failed to make findings that distinguished the evidence presented as to whether defendant harassed plaintiff, or instead the parties underwent marital contretemps. That required remand, particularly in light of the pending matrimonial proceedings. In addition, trial court failed to state the reasons an FRO was necessary under the totality of the circumstances to prevent imminent future harm or risk of future abuse. A-2657-21 Unreported Source Daily Briefing 9-18-23

2 Wife posting video asking for assistance to obtain Jewish get was not harassment under DV law S.B.B. VS. L.B.B.

In this matter, the court considered whether defendant's act of making and disseminating a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get constituted the predicate act of harassment, in violation of N.J.S.A. 2C:33-4(a), to justify the issuance of a final restraining order under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court held that defendant's communication was protected by the Free Speech Clause of the First Amendment and the New Jersey Constitution and did not fall into any of the narrow exceptions—incitement to imminent violence or true threats—which would rob it of its protected status. The court likewise concluded that because defendant's communication was not impermissibly invasive of plaintiff's privacy and was animated by a legitimate purpose, the acquisition of a get, rather than a purpose to harass, it was not violative of the harassment statute. Lastly, the court held that plaintiff's allegation that there was a general tendency of violence toward get refusers in the Jewish community was inapposite because the claim was not supported by the record and because the theoretical possibility that a third party will commit a criminal act cannot render otherwise permissible speech unlawful. As a result, the court vacated the final restraining order entered against defendant. DOCKET NO. A-0305-21 Unreported Source Daily Briefing

3. Directive #04-24 Regarding Ignition Interlock Devices in DWI cases based on New Law

This Directive highlights a recent law (L. 2023, c. 191) regarding the ignition interlock device (interlock) that affects defendants charged with some violations of New Jersey's driving while intoxicated (DWI) law. An interlock requires a driver to pass a breath alcohol content test (by blowing into the device) before they can start their vehicle. This Directive rescinds and supersedes Directive #25-19 ("Implementation of New DWI Law...," issued December 5, 2019).

L. 2023, c. 191 , signed into law on December 21, 2023, has two effective dates for different provisions. The information below provides several broad highlights; the legislation is attached and should be consulted for details and guidance.

• The enactment extended the expiration date of the interlock law (L. 2019, c. 248) until January 1, 2029.

• Effective February 19, 2024, the law provides that someone arrested for certain DWI offenses may - after arrest and before any conviction - voluntarily install an interlock in one motor vehicle they own, lease, or principally operate. N.J.S.A. 39:4-50.

o This voluntary installation of the interlock after arrest and before conviction may, upon conviction, eliminate the fine and reduce the period of a driver's license suspension. The law requires that such a defendant must possess a valid New Jersey driver's license in good standing at the time of the offense and maintain that license in good standing until the date of conviction. The law also considers whether the violation resulted in serious bodily injury to another person.

o The New Jersey Motor Vehicle Commission is required by N.J.S.A. 39:4-50.21 to designate facilities where ignition devices may be installed. A list is posted on MVC's website.

o Once an interlock is installed, the person can then present the necessary documents, as set forth in the statute, to the Motor Vehicle Commission to request a driver's license with a notation stating that the person is not to operate a motor vehicle unless it is equipped with an interlock.

o An order from the Municipal Court is not required for this voluntary, pre-conviction process.

Note: Defendants who do not voluntarily install an interlock prior to sentencing must have their license suspended indefinitely by the court upon conviction, until they install an interlock device.

• Also effective February 19, 2024, the law modifies certain penalty provisions, including the length of driver’s license suspension for convictions of DWI and refusing to submit to a breathalyzer test, and increases the time period for which an interlock is required for such offenses. These modifications also will expire January 1, 2029.

(L. 2023, c. 191) –

Rescinds and Supersedes Directive #25-19

Source https://www.njcourts.gov/sites/default/files/notices/2024/03/n240402a.pdf

So, in many cases VercammenLaw may be able to help prevent a loss of driver's license so someone can drive to work, school and help family.

4 Trust for care of animals in Will. 3B:31-24

a. A trust may be created , EITHER IN A WILL OR A TRUST, to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.

b. A trust authorized by this section may be enforced by the settlor or by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

c. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use shall be distributed to the settlor, if then living, otherwise to the settlor's estate.

L.2015, c.276, s.1.

Vercammenlaw- Decades of Experience Serving the Legal Needs of the Middle Class

5 Extreme risk protection order to remove firearms (EPRO)

A family member can ask the court to remove firearms from someone deemed an immediate threat. This is called an "extreme risk protection order" (EPRO) or firearm removal order.

How to File a Petition

While firearm removals do not involve criminal charges, the criminal division of Superior Court handles those requests. Firearm removals and procedures are defined in the Extreme Risk Protective Order Act of 2018.

The procedure is modeled after domestic violence restraining orders, which include firearm removal. Consider a full restraining order if you are a victim of domestic violence.

A firearm removal request begins with an ERPO petition. The petition needs to state why the person is a threat to others or at risk for self-harm. It includes questions related to 15 risk factors. The petition needs to tell the court what guns are owned and where they are located. The person filing becomes the “petitioner” and the alleged threat is the “respondent.”

File the petition in the county where the respondent lives. If you file outside of the county where the respondent resides, it will be sent to the correct court. Submit the petition to:

The criminal division of Superior Court Mon-Fri, 8:30 am – 5:30 pm.
Any state, county, or municipal law enforcement agency at any time.

Under the ERPO Act, law enforcement agents can provide information to complete the petition. Actions they can take include:

Providing information on what risk factors the court considers.
Joining the petition.
Referring the petition to additional law enforcement agencies.
Filing their own petition.

There are special procedures for petitions against law enforcement officers. The petition must be filed where the individual works. This triggers an internal affairs (IA) investigation. The county prosecutor must review the report and decide whether it should be submitted to the court.

There are no filing fees for a firearm removal petition, pursuant to N.J.S.A. 2C:58-23(c).

Who Can File a Petition

Family members can file firearm removal petitions directly with the court. Under N.J.S.A 2C:58-23(a) family members include:

A spouse, domestic partner, or partner in a civil union couple.
A former spouse, domestic partner, or partner in a civil union couple.
A present or previous household member.
Any co-parent or guardian of a child in common.
Anyone who is expecting a child with the alleged individual.
A current or former dating partner.

Law enforcement agents are also able to file a petition directly with the court.

Anyone not listed above needs to go a law enforcement agency and ask them to file the petition. The agency decides whether to honor the request and file the petition. Law enforcement and prosecutors need to follow specific guidelines for these requests.

Preparing for Court

When you file with the Superior Court, court staff will interview you. Your responses are filed in the protective restraining order system (PROS).

The first hearing will be scheduled as soon as possible. During regular court hours, a Superior Court judge will hear the petition. During off hours, a municipal court judge will hear the petition. to provide “good cause” for removing firearms. If successful, the court will issue a temporary firearm removal order.

If a municipal judge denies the petition, you can request an immediate appeal hearing with an on-call Superior Court judge. If a Superior Court judge denies the request, you can appeal with the Appellate Division of Superior Court.

The final hearing is scheduled within 10 days of the petition. It can take longer if the respondent needs to be served with the petition. During the final hearing both the petitioner and respondent can make their case.

While attorneys are not required, both parties have a right to representation. However, these cases do not qualify for a public defender or other court assistance. Either party seeking representation needs to hire a private attorney.

Defending Yourself in Final Hearings

Respondents have a right to defend themselves in court. You will receive a copy of the petition and have time to prepare your defense for the final hearing. You can request an expedited final hearing. This shortens the time the temporary order is in effect.

During the final hearing, you can:

Testify in your defense.
Present witnesses for your defense.
Submit any relevant documents.
Cross-examine any witnesses for the petitioner.
Present any additional information relevant to your case.

Final Firearm Removal Order

The final order is issued if the court finds a “preponderance of evidence” confirming the extreme risk. Upon the order, the respondent must:

Surrender all firearms and ammunition to law enforcement.
Surrender any license to purchase, own or carry firearms.

The respondent cannot own, receive, purchase, or use firearms under the final order. The court can issue a search warrant if there is probable cause that the respondent still possesses firearms. The search warrant can only be issued for the property listed in the petition.

Requesting a Termination of a Final Order

The final order stays in effect forever or until another court order. The petitioner or respondent can request termination of the final order. The petition must include why the respondent is no longer a risk. Additional documentation might be required.

source

https://www.njcourts.gov/self-help/firearm-removal#toc-how-to-file-a-petition