New Jercey Posts
TRENTON – State Sen. Richard Codey is looking to expand the current state law to ban drivers from talking and texting on their cell phones while at a spotlight. This law will also apply to those drivers who are temporarily stuck in a traffic jam, at a red light or any other stop sign.
The bill was proposed to the legislation last week. According to Codey, under the current driving law, if you are drunk and at a red light, you will get a DUI. The new bill will also require the written driver’s license test to include questions on distracted driving as it is an as dangerous issue as drunk driving.
With this new bill, Codey aims to put the state of New Jersey in line with federal standards for the Distracted Driving Grant Program. His aim is that the state gets federal money to combat distracted driving. Since the current state law does not include distracted driving, the state is not currently eligible for the grant.
“At the end of the day, we want money to discourage people from driving while distracted,” said Codey. He does not know how much he could get with this bill, but a total of $17.5 million was reserved by the federal Department of Transportation last year to be made available to states which have distracted driving laws.
In June, a bill was signed by Republican Gov. Chris Christie that dramatically increased penalties for drivers who are driving while talking or texting on their cell phones. The bill which is expected to take effect in July will increase fines for a first time offense for drivers arrested for distracted driving. Fines for a first time offense will increase from $100 to between $200 and $400. Fines will be higher for repeat offenders of at least $400 and third time offenders will be fined at least $600. Third time offenders may also have their driver’s license suspended for up to three months as ordered by a judge.
Apart from the support being received by the new bill, a representative of the National Motorists Association in New Jersey, Steve Carrellas, was not happy about the proposal. He thought it would be counterproductive. According to Carrellas, there may be people who want to check their mobile phone on a red light for messages so they can pull over safely and respond to the email or message if it is important.
“This federal lust for dictating terms of a grant is counterproductive to avoiding distraction by cell phones,” he said. According to him, it is all about the money.
According to Codey, the bill has not been introduced in the Assembly yet and he is not sure what chance the bill has of moving in the Legislature. The two-year legislative session will end in a couple of sessions and if the bill has not passed both houses by January, it will have to be reintroduced. Codey really hopes to get the bill passed so the new, harsher penalties for using a cell phone while driving will take effect next year. Codey is looking to get it done before July 1 of 2014 so they have a huge campaign under way in New Jersey. According to Codey, the more people read about this, the bigger issue it becomes.
News Source: www.NJ.com
Economic Developmental Authority approves loan of $357,000 to a medicinal marijuana dispensary in Egg Harbor Township
The NJ Economic Developmental Authority approved a loan of $357,000 on Thursday 12 September 2013 in an effort to support the medical marijuana law. The loan was approved for a medicinal marijuana dispensary in Egg Harbor Township that is planned to open in mid-October.
The dispensary, which will go by the name Compassionate Care Foundation Inc., will use the funds to buy equipment and cultivate marijuana in an area which will produce enough drug for about 1,500 patients a month. According to the CEO William Thomas, the funds will also be utilized to add 12 more jobs to the existing 7 which have already been created.
According to statistics provided by the state Health Department, there are about 1,233 registered patients in New Jersey that require the drug. However, now that the second dispensary is close to opening, more patients are expected to sign up.
Compassionate Care Foundation has allocated a large warehouse where the drug will be grown. The foundation is poised to become the second medical marijuana dispensary to open in New Jersey. Greenleaf Compassion Center in Montclair is New Jersey’s first medical marijuana dispensary which opened in December. It has served about 130 patients several times. According to Thomas, who is a former medical researcher, the second dispensary is expected to generate about $2.8 million a year in state sales taxes. He also said that the fact that the development authority gave a 15-0 vote legitimizes the business in the eyes of the public.
However, before the vote, Michele Brown, the authority’s president and chief executive emphasized the fact that the loan was not being financed by taxpayers. He also said that the agency had sought a legal opinion from the Obama administration to make sure there won’t be any legal issues later on as marijuana still remains an illegal substance. The loan was approved and lent to the dispensary at a 4.65% interest rate which has to be paid within 4 years.
The attorney who filed the lawsuit, Anne Davis, said that she was surprised by the authority’s vote and agreed that it was a positive development in the program’s troubled history. According to Davis, despite the 3-1/2 years that have passed since the law was passed, the lawsuit still has merit because only very few people can buy marijuana for medical purposes. The recent signing of a law eases some restrictions and makes it possible for severely ill children to use the drug which was restricted before.
After approval of the grant, Thomas said, “We know there is a demand by patients and this triples our production.” He also said that with the opening of the second medical marijuana dispensary, they can now serve about 1,500 patients a month as compared to the 500 patients that are being served right now. There is a huge demand which they will be able to meet.
“We know there is a demand by patients and this triples our production.”
David Knowlton, a founder and chairman of the Compassionate Care board said that one cannot get more mainstream than the Economic Development Authority. Knowlton is also the president and chief executive of the New Jersey Health Care Quality Institute, which is a research and consumer advocacy group.
The NJ Economic Developmental Authority which approved the loan provides bond financing, loans as well as business and tax incentives to promote business and job growth. They also provide real estate development assistance in the state.
There are six other nonprofit dispensaries, which have been selected by the state, that have struggled to raise money or find a community which is willing to host them. However, since they have not been able to find the funds, patients and advocates are suing the state over the ‘governor’s reluctance’ to implement the law and allow ill people to get relief who need it urgently.
HOPATCONG – 40-year-old Pedro Carrillo of Rockaway was charged with DWI and a number of other offenses after he was reported to the authorities by a motorist.
According to police reports, the motorist, who was driving behind Carrillo’s vehicle, alerted the police when he saw Carrillo swerving the double yellow line.
The incident took place on River Styx Road and Carrillo also nearly hit a guardrail while driving drunk.
When police arrived at the scene, they saw Carrillo pulling his vehicle out the wrong way on Old Lakeside Boulevard, which is a one-way street. Officer David Kraus who was present at the scene also reported that Carrillo went through a red light too.
When Kraus stopped the vehicle on Crescent Road, Carrillo told him that he had no right to stop him. He also refused to perform field sobriety tests.
The Hopatcong police officer charged him with DWI and brought him to the police headquarters. The arrest took place at 8 pm Friday.
Carrillo’s hostility continued at the police headquarters also. He was asked to give breath samples which he refused. Police reported that he also refused to call someone to come and pick him from the headquarters and threw the cell phone he was handed in his cell to call someone.
According to Kraus, he even threatened to assault the officer after his release the next morning.
Carrillo faces multiple charges including driving while intoxicated in a school zone, refusing to perform field sobriety tests, refusing to give breath samples for testing, failing to keep right, driving without a seat belt, driving on a one-way street, driving the wrong way and disorderly conduct.
News Source: www.NJ.com
In New Jersey, a person can be charged with a criminal offense of assault by auto if that person caused an accident with injury while using a hand-held wireless telephone when driving. The criminal statute N.J.S.A. 2C:1( c)(1) states in part, “Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle…may give rise to an inference that the defendant was driving recklessly.” This crime is a fourth degree offense that carries possible time in jail. And, of course, a driver using a cell phone while driving can also be sued for driving in a careless or reckless manner that caused an accident with physical injury.
However, a recent New Jersey Appellate Division ruling has taken the issue of texting one step further. The ruling in Kubert v. Best states a person that sends a text message to an automobile driver who gets into an accident can be sued. Specifically, the Court wrote, “[w]e hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or has special reason to know that the recipient would view the text while driving and thus be distracted.”
So, think twice before sending a text message in New Jersey if you know the person receiving the message is driving an automobile.
DUI checkpoints are planned in Abington and along Buxmont border by the police over the weekend. Sobriety checkpoints in Abington will be conducted by the Eastern Montgomery County DUI Task Force whereas the Montgomery Township Regional DUI Enforcement Team will be conducting DUI checkpoints along Buxmont border on routes 309, 202, 463, 63, 313, 113, 611. According to police reports, DUI checkpoints will also be conducted on Upper State and County Line roads over the weekend.
Officers from Abington, Cheltenham, Lower Moreland, Upper Moreland, Upper Dublin and Whitemarsh townships form the Eastern Montgomery County DUI Task Force, whereas officers from Montgomery, Horsham, Upper Dublin, New Britain, Warrington and Hilltown townships form the Montgomery Township Regional DUI Enforcement Team.
During the enforcement campaign, there will be roving DUI patrols to look out for impaired drivers and officers will also be conducting sobriety checkpoints to catch drivers for impairment and other violations.
News Source: www.PhillyBurbs.com
NEWTON – According to officials, 39-year-old Michael Fertitta injured his family off-roading on a ski slope at the Mountain Creek ski resort while he was driving drunk. The accident happened on 4th of May at about 4:30 p.m.
A few weeks ago, Fertitta and his wife, 43-year-old Kelly, were charged with second-degree endangering the welfare of their child in connection with the accident. Fertitta was charged with assault with a vehicle also and additional charges were expected to be filed against him. Now, police charged Fertitta with DUI.
Fertitta has pleaded not guilty and is suspended with pay from the Passaic County Prosecutor’s Office, his attorney James Pomaco told The Record. His wife also pleaded not guilty to child endangerment charges in Superior Court on Tuesday.
Authorities said that Fertitta’s BAC level was more than twice the legal limit when the crash happened. Authorities also told that the couple had been drinking at a winery before the crash. Their 2007 Jeep Wrangler overturned about 20 times down the steepest ski slope, ejecting their 6 years old son from the jeep. Their son suffered a concussion and Fertitta suffered a serious head injury. They all were taken to the Morristown Medical Center by a medivac helicopter for treatment.
News Source: www.NJ.com
According to the attorney general, the drunk-driving tester known as Alcotest that had replaced the Breathalyzer in New Jersey about 5 years ago will soon be discarded and will not be used for testing the BAC level of a drunk driver. He said in court papers that the reason for retiring of Alcotest machine is that the machine’s manufacturer, Draeger Safety Diagnostics of Irving, Texas, will warranty it for only 3 more years. By 2016, a replacement technology will have to be introduced and set up in place.
Till 2016, the state wants the Supreme Court to relax the controls on Alcotest that it set down in State v. Chun, 194 N.J. 54 (2008), the seminal ruling that found the device scientifically reliable and accurate as a proof in DWI cases. As the state needs time for developing and replacing the BAC level test machine, using and relying on the Alcotest machine will give enough time to the state to find a new machine and to dedicate its resources in producing a new BAC level test machine.
The information from the state that the Alcotest is discarding was revealed after 2 defense lawyers named as Evan Levow and Matthew Reisig filed a March 15 motion in aid of litigants’ rights. They claim that the online database of Alcotest readings, required to be maintained under Chun, is incorrect and incomplete. They also have a problem with the state’s fees for use of the database that range from $5 to $60 depending on number of reports requested. They both ask the court to order the state to execute a series of revisions to the Alcotest software that were mandated by Chun.
In a 62-page opposition filed on 31st of May by Deputy Attorney General Robyn Mitchell, he admitted that numerous discrepancies exist between the numbers in the online database and the raw data, noting the database’s weeding out of exceptional files. In detail, he explained the technical troubles the state had in developing the online database. According to him, the decision of state to discard Alcotest comes after it was unable to work with Draeger Safety to make programming revisions that will facilitate the uploading of data from machines in police departments all over the state to a centralized database as mandated in Chun. Mitchell said that a software developing company known as Ayoka Systems was hired by Draeger to work on that job and in November 2012, Draeger told the state that it was not agreed to continue employing Ayoka. Draeger wanted the state to do the work in-house or to hire any other software company but the state didn’t have the resources to do the work itself. The state said that it will have to give the work to any company, which will cause a delay of 6 to 9 months. Mitchell said that “In light of Draeger’s decision to stop supporting the existing Alcotest 7110 instruments at the end of 2016 and the state’s lack of a direct business relationship with Ayoka, the time that it would take [to make the necessary software changes] will likely be comparable to the time it would take to implement a new breath testing program. Given that the Alcotest 7110 will become obsolete at the end of 2016, it makes more sense for the state to focus its attention and resources on replacing the Alcotest 7110”.
The Supreme Court said in Chun that the state arrange with Draeger to make revisions to programming code in the Alcotest in accordance with directives recommended by a former Appellate Division judge, Special Master Michael King but the Mitchell notes that the Supreme Court said in Chun that nothing suggests that Alcotest reports generated on machines lacking the mandated updates are in any way inappropriate. In Chun, the court stated that “we agree with the Special Master that updating the firmware to provide this information in addition to that which it already provides would merely be beneficial”.
Draeger officials and Arlington, Texas-based Ayoka didn’t respond to a call from a reporter who wanted to get the information about the case.
A Cherry Hill firm head, Levow and a solo in Freehold, Reisig both refused to comment on the filing of the state.
Peter Aseltine, a spokesman for the Attorney General’s office said that “none of this goes to the reliability of the Alcotest device, and we have a secure, operating database”. He didn’t answer any of the questions about the case.
The head of a Cherry Hill firm who represented the amicus curiae New Jersey State Bar Association in Chun, Jeffrey Gold said that “I really do find it outrageous, the gall the state has in saying, not only are we in violation of this order, in terms of changing the software, for five years, but we want another three years because we’re going to investigate another [machine]”. “They’re in violation of the order and there’s nothing in their response that says, to me, a justification” Gold added. He said that the database requirement as an accommodation to defense lawyers was recommended by King, because Draeger does not allow non-government entities to get an Alcotest. The accommodation was made because defense experts cannot conduct experiments on the Alcotest to know if a particular defendant’s reading is an outlier, but they can examine the database. The design of the database and its use of Microsoft Excel hamper inquiries like these.
News Source: www.Law.com
A homicide by vehicle while DWI in NJ is a unique offense, separate from other forms of homicide. Considered a second degree crime, death by auto or vessel is a form of reckless homicide. It is specifically defined as causing death during the operation of a vehicle that is not man powered while intoxicated by drugs or alcohol or over the legal .08 BAC limit. Based on this definition, operating a bicycle would not apply, whereas a motorcycle would.
In order to be charged with death by auto or vessel, it must first be proven that you are driving recklessly. There are two distinct ways to be considered a reckless driver. One way is to be sleep deprived. The other is to be impaired. Impaired driving can be caused by hallucinogenic drugs, liquor, habit-producing drugs or narcotics. The presence of these intoxicants can be detected by a blood test or urine test. Whereas being intoxicated can be a defense to murder in the state of New Jersey, it is not a defense to death by auto or vessel.
Because death by auto is a second degree crime, the sentencing is 5 to 10 years. However, the minimum term for this crime is the greater of three years or one-third to one-half that. A drunk driver that kills someone could easily spend five years in prison during which they would not be eligible for parole.
The penalties for death by auto are increased if the accident has any relationship with schools. This includes taking place in a school zone, at a school crossing, or at any property used by schools. It does not matter if schools were closed, or if there were no children at the crossing. It is not a defense to be unaware that the location was a school zone. Death by auto when related to schools is a first degree offense. The sentence for this crime is 10-20 years.
In addition to incarceration, those convicted of death by auto while DWI in the state of New Jersey will face other sanctions. Following completion of any jail time, those convicted of this crime will not be able to operate a vehicle for at least five years. There is also the possibility that the license suspension can be for life. Drivers convicted of this DWI offense must surrender their vehicles, unless it can be shown that a significant hardship to the family exists. This hardship must be more significant than the risk imposed by allowing the driver to continue driving the vehicle.
A death by auto or vessel offense is devastating for everyone involved. There are clear sentencing guidelines, but defenses exist to the allegation of drunk driving. A thorough examination of the blood or urine testing must be done to determine if the laboratory failed to do its job properly. Also, the police may have jumped to certain incorrect conclusions about the driver’s state of sobriety.
In addition to criminal charges, those convicted should also be concerned about wrongful death suits from the victim’s family.
Not one of my clients has told me that getting a DWI/DUI won’t really make a difference in his or her life. In other words, having a DWI or DUI conviction on your record always matters. From the jail-time to the license suspension to the huge financial penalties, there is at least one consequence for a DUI conviction that is going to strike a chord with someone. That is why it is absolutely necessary to have every weapon in a DUI defense arsenal available in order to attack a prosecutor’s case. Expert witnesses are very often the best weapons to have in that arsenal.
There are many types of expert witnesses that are essential in a DWI case. These are some of the areas where a defense witness can attack the prosecution’s case:
- Field sobriety testing;
- Breath testing;
- Blood testing;
- Urine testing;
- Drug recognition evaluations;
- Fatigue/Jet-lag issues; and
- Medical issues.
Field Sobriety Testing Experts
Although I’ve taken multiple training courses for standardized field sobriety tests (SFSTs), have read the studies concerning these tests and have actually administered them to drunk people, I don’t believe for a second that field sobriety tests actually measure a person’s sobriety. However, prosecutors will try to use the results of these tests to convict people. In order to combat this prosecution tactic, I will use former police officers and state troopers who trained fellow police officers to use these tests. These defense experts will be able to attack the way the tests were administered, the way the tests were scored, and if the driver had certain physical issues that would have affected the outcome of the tests.
In addition, if a person suffers from back injury, knee injury or any other physical condition that affects balance, then a treating medical physician will be able to explain how those physical problems prevented a driver from doing balance tests. A treating doctor’s testimony goes a long way when disputing sobriety tests.
Breath Testing Experts
Some of the issues that arise during breath testing concern the following physical conditions and these types of experts who can address those conditions:
- Diabetic attacks -> Medical Doctor or Toxicologist;
- Gastroesophageal reflux disease (GERD) -> Medical Doctor or Toxicologist;
- Limited lung capacity-> Pulmonologist;
- Exposure to volatile organic chemicals (VOCs) -> Medical Doctor or Toxicologist;
- Presence of dentures/bridges, tongue ring, tobacco -> Dentist or former breath test operator (police officers)
Other areas of attack concern the way the breath test machine was operated or if it malfunctioned at the time of testing. Former breath machine operators or scientists in the breath testing field will be able to examine the testing procedures and the raw data from the breath machine in order to call into question the test results.
Blood and Urine Testing Experts
Many of the issues that can arise for blood/urine testing require expert testimony in the following areas with the following experts:
- Mishandling of the blood or urine specimen-> Forensic Chemist or Toxicologist;
- Chain of custody issues-> Forensic Chemist or Toxicologist;
- Failures to follow proper scientific testing procedures -> Forensic Chemist or Toxicologist;
- Contamination during testing-> Forensic Chemist or Toxicologist;
- Improper interpretation of testing data-> Forensic Chemist or Toxicologist;
- Incorrect opinion rendered concerning the effects of prescription or non-prescription drugs on ability to operate a motor vehicle-> Pharmacologist or Medical doctor.
Drug Recognition Evaluation Experts
“Drug Recognition Evaluations” have been referred to as “junk” or “voodoo” science by a vast number of reputable scientists and medical experts. The drug recognition evaluation (dre) is used by the prosecution in an attempt to show that the driver was under the influence of a drug while operating a vehicle. The drug recognition evaluations are done by police officers, not medical professionals. Nonetheless, the evaluation utilizes medical procedures in order to come to a conclusion about intoxication. These evaluations can be attacked by challenging the scientific reliability through experts in pharmacology and/or medical doctors. Otherwise, former police officers who were drug recognition evaluators can criticize the way a drug recognition evaluation was performed by a police officer; thus, calling into question the validity of the evaluator’s opinion.
Fatigue/Jet-lag Experts – Other Medical Conditions
Fatigue caused by lack of sleep, bad sleep or jet-lag can cause people to behave in ways that mimic intoxication. A police officer is not trained to distinguish the differences between sleep-deprived behavior and intoxication. Medical experts can evaluate a person’s sleeping history and behavior during a DWI investigation to determine if sleep deprivation was the major cause for erratic behavior.
Likewise, people experiencing hypoglycemic or diabetic attacks will exhibit bizarre, drunk-like behaviors. Medical doctors and pharmacologists can examine medical histories in order to determine if these medical conditions caused a person to appear intoxicated.
As the cliché goes, the best defense is a good offense. This especially applies if you have been charged with a DUI and want to win this battle.
Were you aware that there are specific laws regulating the possession of drugs while in a vehicle? Although most people know there are laws regulating the possession and use of certain controlled substances, many do not know there are additional laws for possessing drugs in a vehicle in New Jersey. Someone with drugs in his or her possession while operating a vehicle could face a DUI charge, criminal drug possession charges, and a charge of operation of a motor vehicle while in possession of a controlled dangerous substance under N.J.S. §39:4-49.1.
N.J.S.A. 39:4-49.1 reads:
Drug possession by motor vehicle operator
No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the “New Jersey Controlled Dangerous Substances Act,” P.L. 1970, c. 226 (C. 24:21-1 et seq.) or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist or other medical practitioner licensed to write prescriptions intended for the treatment or prevention of disease in man or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance.
A person who violates this section shall be fined not less than $50.00 and shall forthwith forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction.
This charge would be in addition to any other applicable drug law that the driver may be guilty of breaking. In addition to the published controlled substances, certain prescription drugs are prohibited if not used legally. Drugs prescribed by dentists, doctors or even veterinarians are considered illegal if they are not accompanied by a prescription. Luckily, for most people, prescriptions are included on the bottle.
The charge of operating a vehicle while in possession of a controlled substance requires three things to be proven by the state. First, the state must show that a motor vehicle was actually being operated. Sitting in a car that is not being operated is not valid for this law. In that situation, it would be a possession charge, but not one associated with the operation of a vehicle.
The second requirement for a charge of operating a vehicle while in possession of a controlled substance is the actual presence of a controlled substance. Being under the influence of a controlled substance is different than possessing it. If a driver has ingested a drug, but there is no evidence of it in the vehicle, then it might be a charge of driving under the influence (DUI or DWI), rather than a possession charge. If the driver is both impaired and in possession of illegal substances, both charges might apply.
The third, and possibly most complex requirement for this charge, is the clause that the driver must be immediately aware of possession. This means that the driver must know at the time of arrest that he or she had possession of the controlled substance. If the controlled substance is not in the driver’s possession, chances are the charge will not stick.
If you are found guilty of operating a vehicle while in possession of a controlled substance in the State of New Jersey, then your license will suspended. A conviction for this charge will result in a minimum of a two year license suspension. There is no work or conditional license. A conviction of this traffic offense may not seem like a big deal, but a two year license suspension can really be damaging.