E532 Happy New Year
In this Issue:
1. New Year's Resolution - Put your Estate Planning in order.ts for a good year.
2. New 2017 Expungement Law
3. Operation in DWI requires proof.
4. No blood draw without warrant unless exigency.
5. Fun Upcoming Running Races & Charity Events
Don't put off having a proper Will prepared and your Estate Planning. A portion of your Estate Planning may be tax deductible for income tax purposes. Tax planning is deductible on your tax return. so If you do some estate planning to reduce potential taxes, your CPA may be able to deduct a portion of the professional fees paid for tax planning. The amounts to be deducted must be discussed with your CPA.
You also need a Power of Attorney and Living Will/ Advance Directive. Modern medicine and machinery can keep a person alive for long periods of time.
Sometimes a person is often kept alive in pain or under circumstances that render him or her unconscious as to everything around them, while causing pain and anguish to the family.
Our state has passed a "Living Will" law, often called a "Death with Dignity" law, which allows a person to direct that heroic measures not be taken to prolong life in these unhappy situations.
This "Living Will" is not a substitute for a regular Will, which affects property rights. The "Living Will" is an independent document to be signed in addition to your regular Will. Please let us know if you want a Living Will/ Advance Directive prepared.
2. New 2017 Expungement Law
By Kenneth Vercammen
The Senate Judiciary Committee reports favorably and with committee amendments Senate Law No. 3307.
This law, as amended, would revise procedures for expunging criminal and other records and information, including the shortening of certain waiting periods before a person may seek an expungement and increasing the number of convictions, which may be expunged.
The Governor's office said:
Three new expungement reform bills developed by Governor Christie and Senator Sandra Cunningham (D-Hudson) as part of their continuing bipartisan endeavor would prohibit employment discrimination based upon an expunged criminal record; accelerate expungements and increase the number of convictions that can be expunged; and reduce the waiting period to expunge an entire juvenile record.
"I commend Senator Cunningham for working with me on this legislation that will return many more recovering addicts to their families, as productive members of society and help break the costly cycle of recidivism," Governor Christie said. "It prevents a childhood or adolescent mistake from ruining someone's future, while still ensuring there are appropriate consequences for unlawful behavior and lessons are learned. These reforms represent a second chance at life for our family members, friends, neighbors and coworkers, and they provide the same opportunities we would desperately want for ourselves."
"A minor criminal offense should not lead to a lifetime of punishment. These bills are about removing barriers for residents and helping them to overcome the obstacles that exist to finding employment, taking care of their families and setting their lives on the right path," said Senator Cunningham. "I want to thank the Governor for being a partner in this important work. These bills are a great step to providing offenders with the second chance they deserve."
Senate bill 3306 would strengthen New Jersey's Opportunity to Compete Act, also known as "Ban the Box," sponsored by Senator Cunningham and signed into law by Governor Christie in August 2014. S-3306 would prevent those with current and expunged criminal records from being discriminated against at the early stages of employment pursuits.
Senate bill 3307 would reform procedures for expunging criminal records by:
- Allowing a petitioner to expunge up to four, instead of three, offenses or multiple offenses that occurred within a short timeframe, if the petitioner has not been convicted of any prior or subsequent offense;
- Reducing the expungement eligibility waiting period from 10 years to six years, following the latest of any conviction, payment of fine and completion of probation, parole or prison sentence;
- Further reducing the expungement eligibility waiting period if satisfaction of a fine or restitution is the petitioner's only remaining barrier and the court finds that the expungement is in the public's interest; and
- Aligning expungement and sentencing statutes, allowing expungement for possession of marijuana with the intent to sell up to one ounce, which is the threshold for a fourth-degree crime.
Senate bill 3308 would decrease from five to three years the waiting period to expunge an entire juvenile record, maintaining all other requirements and provisions.
"These necessary, life-saving reforms for people who deserve a second chance should be immediately passed by the New Jersey legislature and replicated across the country, as I have heard loud and clear from the victims of this disease and their families, grassroots leaders, medical professionals, law enforcement officers and those in the criminal justice system, during my travels around this great state and nation," Governor Christie said.
To hire attorney to expunge a prior criminal charge, call Ken Vercammen's office for a consult.
3. Operation in DWI requires proof. State v. Decicco App. Div. unreported
A trooper, responding to a report about an "erratic driver," found a car parked in a field at a campground. Defendant was in the driver's seat holding a can of beer in his hand. The keys were in the ignition, but the engine was not running. Trooper testified that he could feel heat coming from the front of the car and heard crackling sounds from the engine. Defendant admitted drinking beer, said he was at the campground to pick up his mail and was staying to "sleep it off." Defendant failed field sobriety tests and his BAC measured 0.09.
On appeal, defendant contended that the state failed to show that he "operated" a vehicle. The court found that the state failed to meet its burden of proof because defendant's admission that he had driven to the campground did not establish a timeline to show that he was intoxicated when he did so and the state produced no eyewitnesses to defendant's alleged erratic driving. Additionally, the trooper admitted that the warmth from the car engine might have been from defendant running the air conditioner while parked.
Unreported source New Jersey Law Journal April 6, 2017
4. No blood draw without warrant unless exigency. State v. Smiejan, N.J. Super. App. Div. Unreported
Appellant was involved in an accident in which he struck two parked cars. While at the hospital for his injuries, a sample of his blood was taken without his consent or a search warrant; subsequent testing established his blood alcohol content was above the legal limit. Appellant moved for, and was denied suppression of the BAC evidence. The court noted there were exigent circumstances, which existed because of the delays inherent in the warrant application process.
On appeal, appellant argued that the seizure of his blood violated the Fourth Amendment, the Supreme Court's Missouri v. McNeely ruling applied which held that dissipation did not constitute an exigency, and ineffective assistance of counsel. The court reversed holding the trial court erred in relying upon the municipal judge's past experience as a factual basis to find the existence of an adequate exigency.
The court further held there were no meaningful factual findings made by either the municipal court judge or the law division judge. Finally, the court stated that, pursuant to McNeely, the case was to be remanded to determine whether the circumstances warranted the admission of the blood draw as the trial court failed to determine under the totality of the circumstances whether exigency existed thereby negating a need for a warrant. Accordingly, the court reversed and remanded.
5. Fun Upcoming Running Races & Charity Events
Jan 6, 2018 Secret Mystery Winter Trail Run 2.5 mile & 5 Mile Group Run 10:17am New Start Location: Secret Mystery wooded area North Brunswick. Only $20.00 register online and an email with secret start will be sent:https://runsignup.com/Race/NJ/NorthBrunswick/SecretMysteryRun
2018 update Wills and Estate Planning- Free Seminar
January 11 Thursday
Law Office of Kenneth Vercammen,
2053 Woodbridge Ave, Edison, NJ 08817
COST: Free if you pre-register by email. Complimentary materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to St. Matthews St. Vincent DePaul Food Bank. Please email us if you plan on attending or if you would like us to email the materials.
SPEAKER: Kenneth Vercammen, Esq.
(Author- ABA Wills and Estate Administration)
1. NJ Estate Tax eliminated on Estates under $5,400,000 as of January 1, 2018
2. NJ Inheritance Tax stays if assets are going to persons other than spouse or children.
3. Federal Estate Tax exemption increased to over $5.49 million in 2018 but gifts limited to $14,000 per person
4. Set up a testamentary trust in your Will for Protection for spouses and leaving assets to children:
5. We recommend Self- Proving Wills since witnesses often move or pass away
6. The New Probate law NJ
7. NJ Supreme Court holds if an executor or trustee violates fiduciary duty they can be liable for attorneys fees
8. Power of Attorney- Do not use a form purchased online.
9. Federal Health Privacy Law (HIPAA)- Have a new Living Will prepared
10. Competency required to sign a Will or Power of Attorney
COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Co-Sponsor: Middlesex County Estate Planning Council
To attend email: VercammenLaw@Njlaws.com
other Information call 732-572-0500
Can't attend? We can email you materials
Send email to: VercammenLaw@Njlaws.com
Editorial Assistance provided by Brianna Pennington. Ms. Pennington currently attends William Paterson University and is participating in our Winter Break Internship Program.
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