TELEPHONIC REQUESTS FOR SEARCH WARRANTS FOR BLOOD TESTS IN DRIVING WHILE INTOXICATED (DWI) CASES (MISSOURI V. MCNEELY)

 NOTICE TO THE BAR 

TELEPHONIC REQUESTS FOR SEARCH WARRANTS FOR BLOOD TESTS IN DRIVING WHILE INTOXICATED (DWI) CASES (MISSOURI V. MCNEELY) -- RULE RELAXATION 

The attached October 8, 2013 New Jersey Supreme Court order addresses the process for telephonic requests for search warrants for nonconsensual blood tests in certain DWI cases and is in response to the decision of the United States Supreme Court in Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 185 L.Ed. 2d 696 (2013). The order has a December 1, 2013 effective date. 

In McNeely, the United States Supreme Court held “that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” 185 L.Ed.2d at 715. Further, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 709. 

The New Jersey Supreme Court order published with this notice relaxes and supplements the Part III (Criminal) and Part VII (Municipal Court) Rules so as to authorize certain Municipal Court judges to issue search warrants for nonconsensual blood testing in all driving while intoxicated (DWI) cases where no indictable charge is anticipated, with the Assignment Judge to designate either all of the Municipal Court judges in the county to have this authority or just particular specified judges. Such authorization is not limited to evening or weekend hours. Further, the search warrant may be issued in this limited category of cases by a designated Municipal Court judge in person or by telephone, radio or other means of electronic communication upon sworn oral testimony of a law enforcement officer or prosecuting attorney communicated to the issuing judge, pursuant to the procedures outlined in R. 3:5-3(a) and (b). Superior Court judges will handle search warrants for blood tests in those DWI cases where an indictable charge is anticipated. The Supreme Court order does not affect any current procedures for Municipal Court judges to issue in-person search warrants for other matters. 

In accordance with the Supreme Court’s holding in State v. Pena-Flores, 198 N.J. 6 (2009), the attached Order also removes the requirement in R. 3:5-3(b) that exigent circumstances must exist in order to issue search warrants by telephone, radio or other means of electronic communication. 

Further, the Order also asks the Supreme Court Criminal Practice Committee and Municipal Court Practice Committee to consider and make recommendations regarding the scope of authority for Municipal Court judges to issue telephonic search warrants in all cases. 

/s/ Glenn A. Grant 

_____________________________ 

Glenn A. Grant, J.A.D. Acting Administrative Director of the Courts 

Dated: November 14, 2013

SUPREME COURT OF NEW JERSEY 

It is ORDERED, pursuant to N.J. Const. Art. VI, sec. 2, par.3, that effective December 1, 2013 and until further order, Part III (Criminal) and Part VII (Municipal Court) of the Rules Governing the Court of the State of New Jersey are supplemented and relaxed so as to permit Municipal Court judges, as designated by the Assignment Judge, to issue search warrants for nonconsensual blood testing in all driving-while-intoxicated cases where no indictable charge is anticipated; this authorization is not limited to evening or weekend hours and such search warrants may be issued in-person or by telephone, radio or other means of electronic communication on the sworn oral testimony of a law enforcement officer or prosecuting attorney communicated to the issuing judge, pursuant to the procedures outlined in R. 3:5-3(a) and (b). 

It is FURTHER ORDERED that R. 3:5-3(b) is also specifically relaxed so as to remove the requirement that exigent circumstances must exist to issue a search warrant by telephone, radio or other means of electronic communication. 

It is FURTHER ORDERED that the Court’s Criminal Practice Committee and Municipal Court Practice Committee are asked to consider the scope of authority for Municipal Court judges to issue telephonic/electronic search warrants in all cases and to provide the Court with any proposed rule recommendations. 

For the Court, 

/s/ Stuart Rabner 

Chief Justice 

Dated: October 8, 2013

39:4-129a Action in case of accident with injury

39:4-129a Action in case of accident with injury

39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.

In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE

PROFESSIONAL OFFICE SPACE IS AVAILABLE IN EDISON LAW OFFICE

2053 Woodbridge Ave.

Edison, NJ 08817

Excellent space for an Attorney, Financial Planners, Accountant, Insurance Agents, and other Business Professionals as a 2nd location or location to meet clients in Edison.

The offices are located on the 1st floor of the building.

2 rooms office  

office room # 6 approx 12.4 x 9.4       

and front room appr 8 x 9 -office room # 5

plus use of reception room  16.6 x 7.2

and use of storage area in basement

         

$600 per month  [was $700]

Call 732-572-0500

    Owner of building is local attorney, Kenneth Vercammen who handles Personal Injury, Elder Law, and Criminal Law. 

Jets running back Mike Goodson may face charges for 2C:39-3. Prohibited weapons and devices

Jets running back Mike Goodson  may face charges for 2C:39-3.  Prohibited weapons and devices
f.Dum-dum or body armor penetrating bullets.  (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means:  (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and (c) is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree.  For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.

2C:11-5 Death by auto or vessel.

 2C:11-5 Death by auto or vessel.

a.Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.

Proof that the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours may give rise to an inference that the defendant was driving recklessly.  Proof that the defendant was driving while intoxicated in violation of R.S.39:4-50 or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L.1952, c.157 (C.12:7-46) shall give rise to an inference that the defendant was driving recklessly.  Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) may give rise to an inference that the defendant was driving recklessly.  Nothing in this section shall be construed to in any way limit the conduct or conditions that may be found to constitute driving a vehicle or vessel recklessly.

b.Except as provided in paragraph (3) of this subsection, vehicular homicide is a crime of the second degree.

(1)If the defendant was operating the auto or vessel while under the influence of any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or with a blood alcohol concentration at or above the prohibited level as prescribed in R.S.39:4-50, or if the defendant was operating the auto or vessel while his driver's license or reciprocity privilege was suspended or revoked for any violation of R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), by the Director of the Division of Motor Vehicles pursuant to P.L.1982, c.85 (C.39:5-30a et seq.), or by the court for a violation of R.S.39:4-96, the defendant shall be sentenced to a term of imprisonment by the court.  The term of imprisonment shall include the imposition of a minimum term.  The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, during which the defendant shall be ineligible for parole.

(2)The court shall not impose a mandatory sentence pursuant to paragraph (1) of this subsection unless the grounds therefor have been established at a hearing.  At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the defendant was operating the auto or vessel while under the influence of any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or with a blood alcohol concentration at or above the level prescribed in R.S.39:4-50 or that the defendant was operating the auto or vessel while his driver's license or reciprocity privilege was suspended or revoked for any violation of R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), by the Director of the Division of Motor Vehicles pursuant to P.L.1982, c.85 (C.39:5-30a et seq.), or by the court for a violation of R.S.39:4-96.  In making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.

(3)Vehicular homicide is a crime of the first degree if the defendant was operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while:

(a)on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b)driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c)driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of this paragraph.

It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of this paragraph that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing.  Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of this paragraph that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

(4)If the defendant was operating the auto or vessel in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a), the defendant's license to operate a motor vehicle shall be suspended for a period of between five years and life, which period shall commence upon completion of any prison sentence imposed upon that person.

c.For good cause shown, the court may, in accepting a plea of guilty under this section, order that such plea not be evidential in any civil proceeding.

d.Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for aggravated manslaughter under the provisions of subsection a. of N.J.S.2C:11-4.

As used in this section, "auto or vessel" means all means of conveyance propelled otherwise than by muscular power.

e.Any person who violates paragraph (3) of subsection b. of this section shall forfeit the auto or vessel used in the commission of the offense, unless the defendant can establish at a hearing, which may occur at the time of sentencing, by a preponderance of the evidence that such forfeiture would constitute a serious hardship to the family of the defendant that outweighs the need to deter such conduct by the defendant and others.  In making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.  Forfeiture pursuant to this subsection shall be in addition to, and not in lieu of, civil forfeiture pursuant to chapter 64 of this title.

4:22-17 Cruelty; disorderly persons offense; certain acts, crimes; degrees

4:22-17   Cruelty; disorderly persons offense; certain acts, crimes; degrees.

 4::22-17 .  a. A person who shall:

(1)Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature;

(2)Cause or procure, by any direct or indirect means, including but not limited to through the use of another living animal or creature, any such acts to be done; or

(3)Inflict unnecessary cruelty upon a living animal or creature, by any direct or indirect means, including but not limited to through the use of another living animal or creature; or unnecessarily fail to provide a living animal or creature of which the person has charge either as an owner or otherwise with proper food, drink, shelter or protection from the weather; or leave it unattended in a vehicle under inhumane conditions adverse to the health or welfare of the living animal or creature--

Shall be guilty of a disorderly persons offense, and notwithstanding the provisions of N.J.S.2C:43-3 to the contrary, for every such offense shall be fined not less than $250 nor more than $1,000, or be imprisoned for a term of not more than six months, or both, in the discretion of the court.  A violator of this subsection shall also be subject to the provisions of subsection c. and, if appropriate, subsection d. of this section.

b.A person who shall purposely, knowingly, or recklessly:

(1)Torment, torture, maim, hang, poison, unnecessarily or cruelly beat, or needlessly mutilate a living animal or creature; or

(2)Cause or procure, by any direct or indirect means, including but not limited to through the use of another living animal or creature, any such acts to be done --

Shall be guilty of a crime of the fourth degree.

If the animal or creature is cruelly killed or dies as a result of a violation of this subsection, or the person has a prior conviction for a violation of this subsection, the person shall be guilty of a crime of the third degree.

A violator of this subsection shall also be subject to the provisions of subsection c. and, if appropriate, subsection d. of this section.

c.For a violation of subsection a. or b. of this section, in addition to imposing any other appropriate penalties established for a crime of the third degree,  crime of the fourth degree, or disorderly persons offense, as the case may be, pursuant to Title 2C of the New Jersey Statutes, the court shall impose a term of community service of up to 30 days, and may direct that the term of community service be served in providing assistance to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, or any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or to a municipality's animal control or animal population control program.  The court also may require the violator to pay restitution or otherwise reimburse any costs for food, drink, shelter, or veterinary care or treatment, or other costs, incurred by any agency, entity, or organization investigating the violation, including but not limited to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or a local or State governmental entity.

d.If a juvenile is adjudicated delinquent for an act which, if committed by an adult, would constitute a disorderly persons offense pursuant to subsection a. of this section or a crime of the third degree or crime of the fourth degree pursuant to subsection b. of this section, the court also shall order the juvenile to receive mental health counseling by a licensed psychologist or therapist named by the court for a period of time to be prescribed by the licensed psychologist or therapist.

Amended 1995, c.355, s.2; 1996, c.64, s.1; 2000, c.162, s.1; 2001, c.229, s.1; 2003, c.232, s.1; 2005, c.105, s.1. 4:22-18.  Carrying animal in cruel, inhumane manner; disorderly persons offense4:22-18.  A person who shall carry, or cause to be carried, a living animal or creature in or upon a vehicle or otherwise, in a cruel or inhumane manner, shall be guilty of a disorderly persons offense and punished as provided in subsection a. of R.S.4:22-17.

Amended 1995, c.355, s.3; 1996, c.64, s.2; 2001, c.229, s.2. 4:22-19.  Failure to care for, destruction of impounded animals; penalties; collection4:22-19.  A person who shall:

a.Impound or confine, or cause to be impounded or confined, in a pound or other place, a living animal or creature, and shall fail to supply it during such confinement with a sufficient quantity of good and wholesome food and water; or

b.Destroy or cause to be destroyed any such animal by hypoxia induced by decompression or in any other manner, by the administration of a lethal gas other than an inhalant anesthetic, or in any other manner except by a method of euthanasia generally accepted by the veterinary medical profession as being reliable, appropriate to the type of animal upon which it is to be employed, and capable of producing loss of consciousness and death as rapidly and  painlessly as possible for such animal shall, in the case of a violation of  subsection a., be guilty of a disorderly persons offense and shall be punished as provided in subsection a. of R.S.4:22-17; or, in the case of a  violation of subsection b., be subject to a penalty of $25 for the first offense and $50 for each subsequent offense.  Each animal destroyed in violation of subsection b. shall constitute a separate offense.  The penalty shall be collected in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) and all money collected shall be remitted to the State.

This section shall apply to kennels, pet shops, shelters and pounds as defined and licensed pursuant to P.L.1941, c.151 (C.4:19-15.1 et seq.); to pounds and places of confinement owned and operated by municipalities, counties or regional governmental authorities; and to every contractual warden or impounding service, any provision to the contrary in this title notwithstanding.