a.Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.
b. (1) As used in this subsection:
"Child" means any person under 16 years of age.
"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.
"Prohibited sexual act" means
(a)Sexual intercourse; or
(b)Anal intercourse; or
(c)Masturbation; or
(d)Bestiality; or
(e)Sadism; or
(f)Masochism; or
(g)Fellatio; or
(h)Cunnilingus;
(i)Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction; or
(j)Any act of sexual penetration or sexual contact as defined in N.J.S.2C:14-1.
"Reproduction" means, but is not limited to, computer generated images.
(2)(Deleted by amendment, P.L.2001, c.291).
(3)A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree.
(4)Any person who photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act is guilty of a crime of the second degree.
(5) (a) Any person who knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, is guilty of a crime of the second degree.
(b)Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.
(6)For purposes of this subsection, a person who is depicted as or presents the appearance of being under the age of 16 in any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction shall be rebuttably presumed to be under the age of 16. If the child who is depicted as engaging in, or who is caused to engage in, a prohibited sexual act or simulation of a prohibited sexual act is under the age of 16, the actor shall be strictly liable and it shall not be a defense that the actor did not know that the child was under the age of 16, nor shall it be a defense that the actor believed that the child was 16 years of age or older, even if such a mistaken belief was reasonable.
L.1978, c.95; amended 1979, c.178, s.46; 1983, c.494; 1992, c.2; 1992, c.6; 1995, c.109; 1998, c.126; 2001, c.291.
Friday, June 27, 2008
Endangering the welfare of an incompetent person
A person is guilty of a disorderly persons offense when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect.
L.1978, c. 95, s. 2C:24-7, eff. Sept. 1, 1979.
2C:24-8. Abandonment, neglect of elderly person, disabled adult; third degree crime
1. a. A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person or disabled adult.
b.A person shall not be considered to commit an offense under this section for the sole reason that he provides or permits to be provided nonmedical remedial treatment by spiritual means through prayer alone in lieu of medical care, in accordance with the tenets and practices of the elderly person's or disabled adult's established religious tradition, to an elderly person or disabled adult to whom he has a legal duty to care for or has assumed responsibility for the care of.
c.Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this State.
L.1978, c. 95, s. 2C:24-7, eff. Sept. 1, 1979.
2C:24-8. Abandonment, neglect of elderly person, disabled adult; third degree crime
1. a. A person having a legal duty to care for or who has assumed continuing responsibility for the care of a person 60 years of age or older or a disabled adult, who abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person or disabled adult.
b.A person shall not be considered to commit an offense under this section for the sole reason that he provides or permits to be provided nonmedical remedial treatment by spiritual means through prayer alone in lieu of medical care, in accordance with the tenets and practices of the elderly person's or disabled adult's established religious tradition, to an elderly person or disabled adult to whom he has a legal duty to care for or has assumed responsibility for the care of.
c.Nothing in this section shall be construed to preclude or limit the prosecution or conviction for any other offense defined in this code or in any other law of this State.
Eluding
b. Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person's driver's license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement.
Upon conviction the court shall collect forthwith the New Jersey driver's licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a driver's or vessel operator's license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving or vessel operating privileges, whichever is appropriate, in this State.
For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense.
L.1978, c.95; amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2.
EDITOR-VOLUNTEER INTERN WANTED - To serve as Assistant Editor of American Bar Association GP Solo Criminal Law Newsletter and Assistant Editor of the
Duties
- Review and Revise Legal and Consumer Law Articles for Grammar and Punctuation
- Work as Assistant Editor of the New Jersey Municipal Court Law Review
- Prepare Correspondence to websites and New Jersey Media with Revised Articles
- Provide copies of published articles to Judges, Prosecutors and other New Jersey professionals
- Assist in Marketing projects
- Type Rough Draft Articles
- Gain some legal and publication experience
- Part-time volunteer, 10 hours per week required
- Fall and Spring Semesters available
Editor Kenneth A. Vercammen, Esq.
Author of 125 Legal Articles
Send resume and cover letter :
Mail or fax cover letter and resume. Do not email.
Kenneth Vercammen & Associates, PC
2053 Woodbridge Avenue, Edison, NJ 08817 [near Rt 287 and the NJ Turnpike]
PHONE 732-572-0500 (Fax) 732-572-0030
- Review and Revise Legal and Consumer Law Articles for Grammar and Punctuation
- Work as Assistant Editor of the New Jersey Municipal Court Law Review
- Prepare Correspondence to websites and New Jersey Media with Revised Articles
- Provide copies of published articles to Judges, Prosecutors and other New Jersey professionals
- Assist in Marketing projects
- Type Rough Draft Articles
- Gain some legal and publication experience
- Part-time volunteer, 10 hours per week required
- Fall and Spring Semesters available
Editor Kenneth A. Vercammen, Esq.
Author of 125 Legal Articles
Send resume and cover letter :
Mail or fax cover letter and resume. Do not email.
Kenneth Vercammen & Associates, PC
2053 Woodbridge Avenue, Edison, NJ 08817 [near Rt 287 and the NJ Turnpike]
PHONE 732-572-0500 (Fax) 732-572-0030
Edison Attorney Kenneth Vercammen Honored as Municipal Court Practitioner of the Year
NEW BRUNSWICK, NJ - The NJSBA Municipal Court Practice Section named trial attorney Kenneth Vercammen its Municipal Court Practitioner of the Year 2005-2006 in a ceremony on Dec. 5 at the New Jersey Law Center in New Brunswick. Vercammen is a South Brunswick resident and operates the law offices of Kenneth Vercammen & Associates, PC in Edison and Cranbury.
The award was presented in recognition of Vercammen?s activities in informing and educating the public about our legal system, in encouraging and promoting reform and modernization, in improving the relationship between the legal profession and the public, in exemplifying the goals and purposes of the Municipal Court Practice Section and for service to the residents of the State of New Jersey.
A member of the NJSBA for 18 years, Vercammen was recognized in 2002 with the General Practitioner of the Year Award and in 1993 with the Service to the Bar Award from the association?s Young Lawyers Division (YLD). The Service to the Bar Award is given to a young lawyer who has devoted substantial time and energy to bar activities at the county, state and/or national level.
Vercammen is a past chair of the Municipal Court Practice Section and currently serves on the board of directors of the General Practice Section. In addition, Vercammen is a trustee of the Middlesex County Bar Association and co-chair of its Municipal Court Practice Committee. A frequent lecturer, Vercammen presents programs on wills, elder law and probate at adult schools and senior citizen centers, for the AARP and local Chambers of Commerce, at the University of Medicine & Dentistry and St. Peter?s Hospital, and many other locations throughout Central New Jersey. He also speaks on litigation matters, automobile insurance and criminal and juvenile courts before the New Jersey State Bar Association, Institute for Continuing Legal Education and Association of Trial Lawyers of America?New Jersey chapter (ATLA-NJ), as well as for police departments and county colleges.
Active in the American Bar Association (ABA), Vercammen is a former co-chair of the Personal Marketing Skills Group. He lectures on marketing at meetings across the country for the ABA, the Brooklyn and New York Bar Associations, and at Central Jersey adult schools. He is also a former national chair of the ABA?s YLD Law Practice Management Committee, and former chair and newsletter editor of the Marketing Legal Services Committee.
Vercammen is currently a member of the ABA?s Litigation Committee and a former vice chair of the Elder Law and Probate & Estate Planning committees, as well as former deputy chair of the General Practice Marketing Legal Services Committee.
He is a member of the 2005 NJ State Champion Raritan Valley Road Runners Masters Team. In 2004, he was awarded the 3rd degree Black Belt in Tae Kwon Do (Korean Karate).
Vercammen has published over 130 articles in national and New Jersey publications on municipal and criminal court, personal injury, and probate and elder law topics. Among these publications are the New Jersey Law Journal, ABA Law Practice Management Magazine, and the New Jersey Lawyer Newspaper. He is editor-in-chief of the New Jersey Municipal Court Law Review.
The New Jersey State Bar Association, incorporated in 1899, is dedicated to the continuing education of lawyers and the public, to reforming and improving the legal system and to aiding in the administration of justice.
Hire a Trial Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle Matter Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Criminal and Motor vehicle violations can cost you. You may have to pay high fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV/MVC [Motor Vehicle Commission] or have your license suspended. Don't give up!
The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and motor vehicle violations. When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV/MVC surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule a free in-office consultation if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule a free in-office consultation to hire a trial attorney for Criminal/ DWI/ Municipal Court Traffic/ Drug offenses.
The award was presented in recognition of Vercammen?s activities in informing and educating the public about our legal system, in encouraging and promoting reform and modernization, in improving the relationship between the legal profession and the public, in exemplifying the goals and purposes of the Municipal Court Practice Section and for service to the residents of the State of New Jersey.
A member of the NJSBA for 18 years, Vercammen was recognized in 2002 with the General Practitioner of the Year Award and in 1993 with the Service to the Bar Award from the association?s Young Lawyers Division (YLD). The Service to the Bar Award is given to a young lawyer who has devoted substantial time and energy to bar activities at the county, state and/or national level.
Vercammen is a past chair of the Municipal Court Practice Section and currently serves on the board of directors of the General Practice Section. In addition, Vercammen is a trustee of the Middlesex County Bar Association and co-chair of its Municipal Court Practice Committee. A frequent lecturer, Vercammen presents programs on wills, elder law and probate at adult schools and senior citizen centers, for the AARP and local Chambers of Commerce, at the University of Medicine & Dentistry and St. Peter?s Hospital, and many other locations throughout Central New Jersey. He also speaks on litigation matters, automobile insurance and criminal and juvenile courts before the New Jersey State Bar Association, Institute for Continuing Legal Education and Association of Trial Lawyers of America?New Jersey chapter (ATLA-NJ), as well as for police departments and county colleges.
Active in the American Bar Association (ABA), Vercammen is a former co-chair of the Personal Marketing Skills Group. He lectures on marketing at meetings across the country for the ABA, the Brooklyn and New York Bar Associations, and at Central Jersey adult schools. He is also a former national chair of the ABA?s YLD Law Practice Management Committee, and former chair and newsletter editor of the Marketing Legal Services Committee.
Vercammen is currently a member of the ABA?s Litigation Committee and a former vice chair of the Elder Law and Probate & Estate Planning committees, as well as former deputy chair of the General Practice Marketing Legal Services Committee.
He is a member of the 2005 NJ State Champion Raritan Valley Road Runners Masters Team. In 2004, he was awarded the 3rd degree Black Belt in Tae Kwon Do (Korean Karate).
Vercammen has published over 130 articles in national and New Jersey publications on municipal and criminal court, personal injury, and probate and elder law topics. Among these publications are the New Jersey Law Journal, ABA Law Practice Management Magazine, and the New Jersey Lawyer Newspaper. He is editor-in-chief of the New Jersey Municipal Court Law Review.
The New Jersey State Bar Association, incorporated in 1899, is dedicated to the continuing education of lawyers and the public, to reforming and improving the legal system and to aiding in the administration of justice.
Hire a Trial Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle Matter Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Criminal and Motor vehicle violations can cost you. You may have to pay high fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV/MVC [Motor Vehicle Commission] or have your license suspended. Don't give up!
The Law Office of Kenneth Vercammen can provide experienced attorney representation for criminal and motor vehicle violations. When your job or driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV/MVC surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Schedule a free in-office consultation if you need experienced legal representation in a traffic/municipal court matter.
Our website www.njlaws.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations. Call the Law Office of Kenneth Vercammen at 732-572-0500 to schedule a free in-office consultation to hire a trial attorney for Criminal/ DWI/ Municipal Court Traffic/ Drug offenses.
Change in DWI Plea Agreements in Municipal Court
New Jersey Chief Justice Deborah T. Poritz has signed an order amending the "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey." As explained in the Notice to the Bar signed by Administrative Director Judge Philip S. Carchman, the plea agreement guidelines are being amended to address issues raised by two recent changes to New Jersey is drunk driving laws.
In January 2004, the Legislature amended the law to add a new level of offense for drivers with a blood alcohol content (BAC) of 0.08 percent or higher, but less than 0.10 percent. First-time offenders with a lower level BAC face a three-month license suspension. Drivers with a higher BAC face a seven-month suspension, up from the six months under the old law. Drivers who refuse to take the BAC test typically face two charges, one for driving while intoxicated and one for refusing to take the test. In addition to the seven-month suspension for refusing to take the BAC test, the new law calls for a three-month suspension on the charge of drunk driving for drivers who refuse to take the test. These sentences may be served concurrently.
In April 2004, the Legislature increased the license suspension for refusing to take the BAC test from six months to seven months. This amendment made penalties under the new law consistent with the penalties under the old law: Refusing to take the test carries the same penalty as having a high BAC reading.
Judge Carchman explains in the Notice to the Bar that, rather than suffer a seven-month suspension for refusing to take the test, a driver could agree to plead guilty to driving while intoxicated with a BAC of between 0.08 and 0.10, and accept a three-month suspension in exchange for a dismissal of the charge for refusing to take the test. Without the results of a blood test to prove exactly what the blood alcohol level was, the guilty plea for the lower BAC could be accepted and the driver is license suspended for three months.
"It is clear that the Legislature intended to make the penalties for driving drunk in New Jersey more severe and to identify a broader range of drinking and driving as illegal. Some members of the legal community have expressed concern that the amended guidelines would result in more trials. We have no clear indication of that result. However, if more trials occur, we will handle them. The alternative is unacceptable," he added. The amended guidelines prohibit plea agreements that result in the dismissal of charges for refusing to take the blood alcohol test in exchange for pleading guilty to drunk driving.
The amended guidelines also make it clear that attempts to plead guilty to the lower level offense, despite a BAC of 0.10 or higher, are strictly prohibited. The changes became effective July 1, 2005.
For further information contact Tamara Kendig, AOC
(609) 292-9580
http://www.judiciary.state.nj.us/pressre/pr050615b.htm
However, recent caselaw also directs that if the new breath testing machine Alcotest 7110 is used, a refusal should not be charged. In State v. Foley, 370 NJ Super. 341 (Law Division 2003), Judge Orlando held "a large and unacceptable number of persons were charged with refusal that made an attempt to deliver a breath sample. Therefore, no person who delivers a breath sample of at least .5 liters on the Alcotest 7110 MK III may be charged with refusal pursuant to N.J.S.A. 39:4-50.4(a)." The new breath machine 7110 requires 1.5 liters of air, close to the big 2 liter Pepsi bottle. This is a large amount. Therefore, if the person attempts to give a breath sample, but does not or cannot deliver the full 1.5 liters, they cannot be charged with refusal, according to the State v. Foley case. If someone is charged with refusal by police, but the person attempted to provide a breath sample, the refusal must be dismissed by the prosecutor. This is required by State v. Foley.
In January 2004, the Legislature amended the law to add a new level of offense for drivers with a blood alcohol content (BAC) of 0.08 percent or higher, but less than 0.10 percent. First-time offenders with a lower level BAC face a three-month license suspension. Drivers with a higher BAC face a seven-month suspension, up from the six months under the old law. Drivers who refuse to take the BAC test typically face two charges, one for driving while intoxicated and one for refusing to take the test. In addition to the seven-month suspension for refusing to take the BAC test, the new law calls for a three-month suspension on the charge of drunk driving for drivers who refuse to take the test. These sentences may be served concurrently.
In April 2004, the Legislature increased the license suspension for refusing to take the BAC test from six months to seven months. This amendment made penalties under the new law consistent with the penalties under the old law: Refusing to take the test carries the same penalty as having a high BAC reading.
Judge Carchman explains in the Notice to the Bar that, rather than suffer a seven-month suspension for refusing to take the test, a driver could agree to plead guilty to driving while intoxicated with a BAC of between 0.08 and 0.10, and accept a three-month suspension in exchange for a dismissal of the charge for refusing to take the test. Without the results of a blood test to prove exactly what the blood alcohol level was, the guilty plea for the lower BAC could be accepted and the driver is license suspended for three months.
"It is clear that the Legislature intended to make the penalties for driving drunk in New Jersey more severe and to identify a broader range of drinking and driving as illegal. Some members of the legal community have expressed concern that the amended guidelines would result in more trials. We have no clear indication of that result. However, if more trials occur, we will handle them. The alternative is unacceptable," he added. The amended guidelines prohibit plea agreements that result in the dismissal of charges for refusing to take the blood alcohol test in exchange for pleading guilty to drunk driving.
The amended guidelines also make it clear that attempts to plead guilty to the lower level offense, despite a BAC of 0.10 or higher, are strictly prohibited. The changes became effective July 1, 2005.
For further information contact Tamara Kendig, AOC
(609) 292-9580
http://www.judiciary.state.nj.us/pressre/pr050615b.htm
However, recent caselaw also directs that if the new breath testing machine Alcotest 7110 is used, a refusal should not be charged. In State v. Foley, 370 NJ Super. 341 (Law Division 2003), Judge Orlando held "a large and unacceptable number of persons were charged with refusal that made an attempt to deliver a breath sample. Therefore, no person who delivers a breath sample of at least .5 liters on the Alcotest 7110 MK III may be charged with refusal pursuant to N.J.S.A. 39:4-50.4(a)." The new breath machine 7110 requires 1.5 liters of air, close to the big 2 liter Pepsi bottle. This is a large amount. Therefore, if the person attempts to give a breath sample, but does not or cannot deliver the full 1.5 liters, they cannot be charged with refusal, according to the State v. Foley case. If someone is charged with refusal by police, but the person attempted to provide a breath sample, the refusal must be dismissed by the prosecutor. This is required by State v. Foley.
DWI Driver cannot be sentenced as 2nd time school zone offender unless he had a prior school zone convictio
DWI Driver cannot be sentenced an 2nd time school zone offender unless he had a prior school zone conviction State v. Reiner 363 NJ 167 (2004). Subsection (a)[regular DWI] and (g)[school zone DWI of N.J.S.A. 39:4-50 are separate offenses; therefore, in order to be sentenced as a second-time offender under subsection (g), there must be another prior school zone conviction against the defendant under that subsection. Therefore, the statute must be construed strictly against the State and in favor of Reiner. Under the circumstances here, the more favorable result for Reiner would be to construe subsection (g) as a separate offense that requires other subsection (g) convictions for repeat status to attach. In respect of the subsection (g) offense, Reiner is a first-time offender. He is a repeat offender only under subsection (a). DWI and DWI School Zone Merge! Maximum two year suspension.
For representation in DWI, criminal and trial matters, contact Kenneth Vercammen at 732-572-0500. Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 19 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on legal topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested hearings. He is also a popular speaker for the American Bar Association's General Practice Section and Law Practice Management Section.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA
For representation in DWI, criminal and trial matters, contact Kenneth Vercammen at 732-572-0500. Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 19 miles north of Princeton. He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on legal topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested hearings. He is also a popular speaker for the American Bar Association's General Practice Section and Law Practice Management Section.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA
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