E700 VercammenLaw News

1 April is National Donate Life Month- Organ Donation

2. Ken Birthday Happy Hour at the Headliner Club in Neptune on August 2

3. Memo on Admissibility of Drug Recognition Expert (DRE) Evidence – State v. Olenowski (Olenowski II) from Judge Grant

4 Who inherits the Estate if no Will?

1 April is National Donate Life Month- Organ Donation

While New Jersey Organ and Tissue Sharing Network (NJ Sharing Network) works to educate New Jersey residents year round about the critical need for more organ and tissue donors, the month of April, associated with renewal and spring, is also National Donate Life Month.

The month features local, regional and national educational activities designed to encourage Americans to become organ and tissue donors. We recommend all NJ citizens between 18 and 80 have a Living Will/ Advance Directive prepared. Select organ donation in your Living Will.

Nationally, more than 110,000 people wait for a life-saving transplant—close to 5,000 of them are here in New Jersey. For many, tragically, the gift will never be received. Nearly 6,000 people die a year – about 18 per day – awaiting the gift of life.

One of the most important life-saving decisions you can make is to become a registered donor. Say “yes” to donation on your New Jersey driver license or state ID when you first apply for and each time you renew. The words “Organ Donor” will appear on the front of your license and will be included in your computer record with the Motor Vehicle Commission. Not renewing anytime soon? You can register online today by visiting www.sharenj.org. NJ Sharing Network is a non-profit, federally designated organization responsible for the recovery and placement of donated organs and tissue for New Jersey residents in need of life-saving transplants. For information about donation and transplantation in NJ, contact 1-800-SHARE-NJ or info@sharenj.org

Organ and Tissue Donation and Transplantation Facts

Having been a successful college athlete and never skipping a training day over the years, I continued entering road races and attempting to win my age group each weekend. Unfortunately, when I passed age 50 decades of running, karate, volleyball, soccer and working out wore out the cartilage in my knee. I had micro fracture surgery in 2010 to attempt to fix my knee. The knee improved for a short time, but I was back to the hospital. The fine doctors at University Orthopedic advised of a new FDA approved procedure and medical study.

I volunteered for this medical study for knee cartilage repair. The knee doctor inserted a cadaver cartilage piece in left knee. The study was funded by Zimmer Pharmaceutical. I am now a recipient of an organ donation.

I thank the family of the kind and generous donation of living tissue. I want the family and public to know their decision to donate has changed my life in a very positive way.

I will never be winning the races again, but I am happy to run and bike daily. I am now able to run charity 5k races without pain. I urge friends to sign organ donor card and have a Living Will prepared.

What is National Donate Life Month? Originally a weeklong observance, it was officially recognized as a month-long event. The celebration commemorates those who have received or continue to wait for life-saving transplants and honors those who died while waiting.

Who can be a donor? People of all ages and medical histories should consider themselves potential donors. Your medical condition at the time of death will determine what organs and tissue can be donated.

Does my religion support organ and tissue donation? Every major religion in the United States supports organ and tissue donation as one of the highest expressions of compassion and generosity.

Is there a cost to be an organ, eye and tissue donor? There is no cost to the donor’s family or estate for donation. The donor family pays only for medical expenses before death and costs associated with funeral arrangements.

Does my social and/or financial status play any part in whether or not I will receive an organ if I ever need one? No. When you are on the transplant waiting list for a donor organ, what really counts is the severity of your illness, body size, tissue type, blood type and other important medical information.

Why should I register to be an organ and tissue donor? Organ and tissue transplants offer patients a new chance at healthy, productive, and normal lives and return them to their families, friends and communities. To learn more or to register to become an organ and tissue donor, visit www.NJSharingNetwork.org. Also contact your attorney to have a Living Will/ Advance Directive prepared.

2. Birthday Happy Hour at the Headliner Club in Neptune on August 2 at 6pm

Mark your calendar. Ken Vercammen will be having a Birthday Happy Hour at the Headliner Club in Neptune on Friday August 2 at 6pm. Ken V will be celebrating his 65^thbirthday that week. Ken is also doing 65 good deeds this year and 65 charity runs/swims.

Headliner requires attendees be submitted one day ahead. RSVP please email KenV@njlaws.com. Headliner is located at 1401 Route 35, Neptune NJ, 07753 next to the Shark River.

https://www.facebook.com/events/906077377984376

3. Memo on Admissibility of Drug Recognition Expert (DRE) Evidence – State v. Olenowski (Olenowski II) from Judge Grant

This memo is intended to provide guidance with regard to the Supreme Court's November 2023 decision in State v. Michael Olenowski (Olenowski II), 255 N.J. 529 (2023), holding that Drug Recognition Expert (DRE) testimony is sufficiently reliable and admissible as expert testimony in criminal and quasicriminal matters, including driving while intoxicated (DWI) matters, subject to four limitations and safeguards. Those limitations and safeguards are set forth below.

The DRE process involves a 12-point procedure and is most often used in prosecuting violations of N.J.S.A. 39:4-50, which prohibits impaired driving.

While the Alcotest machine can detect blood alcohol concentration in drivers and an .08% concentration is a per se violation, there is no similar per se violation for people who drive with impairment-causing drugs in their system. The defendant in Olenowski II was convicted at trial of drug-impaired driving based in part on DRE evidence.

The Court in Olenowski II applied the new standard for assessing the reliability of expert testimony in criminal and quasi-criminal matters that was set forth in State v. Olenowski (Olenowski I), 253 N.J. 133 (2023). This standard involves a non-exclusive, multi-factor test for reliability patterned after the standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and replaces the previous "general acceptance" admissibility standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In Olenowski II, the Court also determined that de novo is the appropriate standard of review for Daubert-based expert reliability determinations in criminal appeals, while other expert admissibility issues are reviewed under an abuse of discretion standard.

The Court held that DRE testimony may satisfy the admissibility criteria of theDaubert-type standard, subject to the following four limitations and safeguards:

• The DRE may opine only that the evaluation is "consistent with" the driver's ingestion or usage of drugs, not that it was actually caused by drugs. 255 N.J. 610. The DRE's expert opinion testimony must not go further than that and proof of consistency can be pertinent as one component within the totality of the evidence to support an inference that drugs caused a driver's impairment. Id. at 611.

• If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded. Id. at 613. The Court held that it is preferable to obtain a blood sample rather than a urine sample -- when their DRE protocol indicates at Step 11 an opinion of consistency with drug use. Ibid. If the court finds no reasonable attempt was made, despite its feasibility, the DRE evidence shall be excluded; however,. If the State establishes a reasonable justification for the lack of a toxicology report, then the DRE evidence is admissible, subject to defense impeachment and counter.proofs. Ibid.

• The defense must be afforded a fair opportunity to impeach the DRE. Id. At 613-614.

• Model instructions to guide juries about DRE evidence should be considered. Id. at 614.

However, the Court cautioned that a positive DRE opinion does not constitute a per se test of guilt as a .08% BAC Alcotest result would in a drunk driving case. Id. at 615. Instead, the DRE evidence must be considered by the trier of fact along with the remaining evidence in determining whether the State has satisfied its burden of proof. Ibid. See N.J.R.E. 702. The Court further noted that trial judges must still ensure that DRE expert witnesses reliably applied· the methodology as set forth in the opinion. Id. at 616. •

Because Defendant Olenowski's convictions were based on DRE testimony that did not adhere to the guidelines set forth in the opinion, the Court vacated the judgments entered against him. Ibid. Directive February 7, 2024

4 Who inherits the Estate if no Will?

The law of intestate succession in New Jersey states that:

· If you die leaving a spouse, a registered domestic partner, or civil union partner and children who are also the children of the spouse or legal partner, the spouse/legal partner receives 100% of the estate and no bond is required to be posted.

· If you die leaving a spouse, registered domestic partner, or civil union partner, and children of a prior marriage, the spouse/legal partner receives the first 25% (but not less than $50,000 nor more than $200,000), plus ½ of the balance of the estate. The children of the decedent share the remaining balance of the estate. If a child predeceased the parent and that child produced grandchildren, the grandchildren share the balance that would have been their parent’s share.

· If you die leaving a spouse, registered domestic partner, or civil union partner, and no children, but are survived by a parent(s), the spouse receives the first 25% (but not less than $50,000, nor more than $200,000) plus ¾ of the balance. Surviving parent(s) receive all other assets of the estate.

· If you die leaving a child or children but no spouse, registered domestic partner, or civil union partner, the children will take equally. Grandchildren will take their deceased parent’s share

· If you die leaving no spouse, registered domestic partner, or civil union partner, parent(s) will take all. If no parent survives, brothers and sisters of decedent will take equally. If a sibling predeceased the decedent, then the nieces and nephews will take their deceased parent’s share.

· If you die leaving a spouse, registered domestic partner, or civil union partner and children, and the surviving spouse or legal partner has children from a previous relationship, the spouse receives the first 25% (but no less than $50,000 and no more than $200,000). Children of the decedent share the remaining balance of the estate. The stepchildren do not share in the estate.

· If you die leaving a surviving spouse, registered domestic partner, or civil union partner, and only step-children, the surviving spouse or legal partner receives 100% of the estate.

· If you die without a surviving spouse, registered domestic partner, or civil union partner who had children from a previous relationship and you have no other descendants, such as parents, siblings, grandparents or other direct descendants, the step-children share 100% of the estate.

Source https://www.visitmonmouth.com/Page.aspx?Id=1759

Intestacy [Someone died and no Will or Will not done correct and not admitted to probate]

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the "Intestate Estate". Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of common law that determines who is entitled to the property from the estate under the rules of inheritance. See http://en.wikipedia.org/wiki/Intestacy

More details at

http://www.njlaws.com/litigation_involving_intestacy.html

Jonathan H. Lomurro & Ken Vercammen participated in the NJAJ Boardwalk Seminar.

Jonathan H. Lomurro & Kenneth Vercammen were selected to the 2024 Super Lawyers NJ list. The Super Lawyers list issued by Thomson Reuters, which manages West Publishing USA.

https://profiles.superlawyers.com/.../73f0b3a6-71c1-4ae1...

A description of the selection methodology can be found at www.superlawvers.com/about/selection process detail.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.

Kenneth Vercammen is also one of the few attorneys who is Certified by the NJ Supreme Court as a Certified Municipal Court Law Attorneys.