The New Jersey Police Chief Magazine | March 2017
Top Criminal Cases affecting NJ Municipal Courts 2016 By Kenneth Vercammen
1. DWI Refusal notice withstands challenge. State v Quintero 443 NJ Super 620 (App. Div. 2016) The court affirms defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement.
The court hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, The court note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details.
2. Sup Mt denied where police looking in house for missing dementia patient found pot plants State v Mordente 444 NJ Super. 393 (App. Div. 2016) The court affirms the denial of a motion to suppress the evidence of marijuana plants found in the basement of a home searched as part of the police protocol for locating missing persons. The sixty-five year old missing woman in this case suffered from dementia, and was reported by her son as having left the home at some point during the night prior to the search.
In his dissent, Judge Fuentes opines that the police emergency aid doctrine does not justify this search under the guidelines set forth in State v. Vargas, 213 N.J. 301 (2013), and prior case law.
3. Police video is public record under OPRA Paff v Ocean County Prosecutors Office 446 NJ Super. 163 (App. Div. 2016) (MVRs) in police vehicles - which, in accordance with the police chief’s written policy order, are generated automatically whenever the
vehicle’s overhead lights are activated - are “government records” subject to
disclosure under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Appellant Ocean County Prosecutor’s Office failed to carry its statutory burden to show that the films fall within an exception under OPRA. Judge Gilson dissents.
See also A-88-15 John Paff v. Galloway Township (077692)
Does the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 require the defendant township to produce electronically stored information about emails (name of sender, recipient, date and subject) sent by certain public employees over a specified period of time? Certification granted: 7/15/16
4. Defense to refusal sometimes where person medically unable to provide breath samples. State v. Monaco 444 NJ Super 539 (App. Div. 2016) In affirming defendant's conviction of driving under the influence and refusal to submit to a chemical breath test, the court address two points related to the refusal conviction. First, applying State v. O'Driscoll, 215 N.J. 461 (2013), the court holds that defendant failed to present evidence that her refusal was materially affected by the failure to inform her that she would be required to install an ignition interlock if convicted.
Second, the court holds that a defendant bears the burden to prove that he or she lacked the physical capacity to perform the chemical breath test. In this case, defendant maintained her asthma rendered her incapable of providing the minimum air volume. Although defendant's treating physician testified about her pulmonary function, the Law Division judge found the proofs were insufficient to establish defendant was incapable of
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