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Kenneth Albert Vercammen

Kenneth Vercammen’s Answers

170 total


  • I am listed as joint account owner for mom's bank. She passed away. Is the money considered part of her assets or is it mine now

    I am the executor. Everything left to me and my brother. All she owned was car, shop (dog grooming) equipment, and house furniture.

    Kenneth’s Answer

    Read the statute Joint Bank Accounts Upon DeathShort title This act shall be known and may be cited as the "Multiple-party Deposit Account Act" .
    L.1979, c. 491, s. 1.
    17:16I-2. Definitions As used in this act unless the context otherwise requires:
    a. "Account" means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement;
    b. "Beneficiary" means a person named in a trust account as one for whom a party to the account is named as trustee;
    c. "Financial institution" means any organization authorized to do business under State or Federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan associations;
    d. "Joint account" means an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship, and regardless whether the names of the parties are stated in the conjunctive or in the disjunctive;
    e. A "multiple-party account" is any of the following types of account: (1) a joint account, (2) a P.O.D. account, or (3) a trust account. It does not include accounts established for deposit of funds of a partnership, joint venture, or other association for business purposes, or accounts controlled by one or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization or a regular fiduciary or trust account where the relationship is established other than by deposit agreement;
    f. "Net contribution" of a party to a joint account as of any given time is the sum of all deposits thereto made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes, in addition, any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question;
    g. "Party" means a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to him by reason of his surviving the original payee or trustee. Unless the context otherwise requires, it includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party. It also includes a person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless he has a present right of withdrawal;
    h. "Payment" of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party of any setoff, or reduction or other disposition of all or part of an account pursuant to a pledge;
    i. "Proof of death" includes a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred, and a certified or authenticated copy of any judgment or record or report of a court or a governmental agency, domestic or foreign, that a person is dead;
    j. "P.O.D. account" means an account payable on request to one person during lifetime and on his death to one or more P.O.D. payees, or to one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees;
    k. "P.O.D. payee" means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one or more persons;
    ..... more statute on website

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  • Do I need a traffic ticket attorney?

    If I exceeded a construction speed limit on the New Jersey Garden State Parkway by 45 miles (no workers were present), can I be ordered to do community service or serve time in jail (in addition to the fine)?

    Kenneth’s Answer

    In a high speed case, the judge can suspend drivers license. 39:4-104. Violations of article; penalty
    A person violating a section of this article shall, for each violation, be subject to a fine of not less than $50.00 or more than $200.00, or imprisonment for a period not exceeding 15 days, or both, except as herein otherwise provided.
    The landmark case on Laser speeding tickets is In the Matter of the Admissibility of Motor Vehicle Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection System 314 N.J. Super. 233, 714 A.2d 381; (Law Div. 1998) aff’d 326 N.J. Super. 110. (App. Div 1999)

    The Law Division held admissibility of such readings shall be subject to the rules set forth below:

    1. Expert testimony in support of admissibility shall not be required, except as specifically set forth below.

    2. Appropriate training of the law enforcement officer operating the laser speed detector shall be shown in each case.

    3. Pre-operational checking procedures recommended by the manufacturer of the laser speed detector shall be shown to have been made in each case.

    4. Speed measurements shall be admitted whether made in daylight or at night and within any temperature range likely to be found in New Jersey, even if made under conditions of light or moderately heavy rainfall, but speed measurements taken during heavy rain or while snow is falling shall not be admitted without the support of adequate expert testimony in the individual case.

    5. Speed measurements made at any distance up to 1,000 feet shall be admitted, but measurements made at any distance in excess of 1,000 feet shall be admitted only with the support of adequate expert testimony in the individual case.

    This case was affirmed State v. Abeskaron (In re Admissibility Hearing of the LTI Marksman 20-20 Laser Speed Detection Sys.), 326 N.J. Super. 110. November 24, 1999

    In State v. Dantonio, 18 N.J. 570 (1955), the N.J. Supreme Court held there can be variation in the Speed measuring device.
    State v. Readding, 169 N.J. Super. 238 (Law Div. 1978) restated the general rule that in order for the speed measuring device speedometer reading to be admissible into evidence, it should be established that: (1) the device is scientifically reliable; (2) the particular speedometer used in the case being tried is accurate; (3) the operator is qualified; and (4) the device was operated properly in the case being tried.

    Radar emits a beam anywhere from 50 to 320 feet, which makes it impossible to select or focus on one particular traffic vehicle at any significant distance. No police traffic radar is lane sensitive. U.S. Department of Transportation, National Highway Traffic Safety Administration's "Basic Training Program in RADAR and Measurement -- Trainee Instruction Manual (1983) p 3-4
    According to the U.S. Department of Transportation, National Highway Traffic Safety Administration's "Basic Training Program in RADAR and Measurement -- Trainee Instruction Manual (1983)"The N.H.T.S.A. Id. at 3-11 to 3-12 :

    An improperly high RADAR target display can result due to the angular effect through conditions that exist naturally or are created by an officer.
    It is critical that the officer know how to avoid these situations when possible and, when they are unavoidable, to recognize that a speed displayed is artificially high.
    Certain unavoidable road conditions can result in the RADAR making it seem that the patrol car is traveling more slowly than it actually is. If a less- than-true patrol speed measurement is taken by the RADAR, (this) will produce an incorrectly high target speed.
    The target speed displayed to the operator would be 5 mph higher than the target's true speed. Any enforcement action taken due to this displayed speed would, of course, be improper. In State v. Wojtkowiak, 170 N.J. Super. 44 (Law Div. 1979), rev'd on other grounds, 174 N.J. Super. 460, Id. at 3-15
    source: vercammenlaw

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  • I was stopped for speeding on 87N in NY and I got 1110A, I am from NJ. How much ? Points ?

    I was stopped for going 84 in a 65mph zone on the NY 87 n/b in Saratoga county. I begged the officer not to give me speeding ticket. He gave me 1110A and told me I will not get points in NJ. Any idea how much is the ticket ? and if this will affe...

    Kenneth’s Answer

    NJ laws says 39:5D-4 Moving violation out-of-state 2 Points in Motor Vehicle Violations
    Motor vehicle violations and criminal charges can cost you. If you plead guilty by mail or in court for almost all traffic tickets, you will have to pay fines in court and will later receive points on your driver’s license. Both the DMV/MVC and your car insurance company will impose surcharges and eligibility points for three years.

    Compiled by the Law Office of Kenneth Vercammen

    N.J.A.C. 13:19-10.1 Point Assessment
    Any person who is convicted of any of the following offenses, including offenses committed while operating a motorized bicycle, shall be assessed points for each conviction in accordance with the following schedule:

    N.J.S.A. Statutory Violation Description Points
    39:4-14.3 Operating motorized bicycle on restricted highway 2
    39:4-14.3d More than 1 person on a motorized bicycle. 2
    39:4-35 Failure to yield to pedestrian in crosswalk. 2
    39:4-36 Failure to yield to pedestrian or passing a vehicle yielding to
    pedestrian in crosswalk 2
    39:4-41 Driving through safety zone. 2
    39:4-52, Racing on Highway 5
    39:4-55 Improper action or omission on grades and curves 2
    39:4-57 Failure to observe directions of officer. 2
    39:4-66 Failure to stop before crossing sidewalk 2
    39:4-66.1 Failure to yield to pedestrians or vehicles while entering or
    leaving highway 2
    39:4-66.2 Driving on private property to avoid traffic signal or stop sign 2
    39:4-71 Improper driving on sidewalk 2
    39:4-80 Failure to obey direction of officer 2
    39:4-81 Failure to observe traffic signal 2
    39:4-82 Failure to keep right 2
    39:4-82.1 Improper operating of vehicle on divided highway or divider 2
    39:4-83 Failure to keep right at intersection 2
    39:4-84 Failure to pass right of vehicle proceeding in opposite direction 5
    39:4-85 Improper passing on right or off roadway 4
    39:4-85.1 Wrong way on one-way street 2
    39:4-86 Improper passing, in "No Passing" zone 4
    39:4-87 Failure to yield to overtake vehicle 2
    39:4-88 Failure to observe traffic lanes 2
    39:4-89 Tailgating 5
    39:4-90 Failure to yield at intersection 2
    39:4-90.1 Failure to use proper entrances to limited access highway 2
    39:4-91, Failure to yield to emergency vehicle 2
    39:4-96 Reckless driving 5
    39:4-97 Careless driving 2

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  • Can an out of state detective come and pick me up on a warrant?

    A NYC detective contacted me via email and said he had a arrest warrant for me. He said if I dont turn myself in he will be forced to get a governors warrant for me and I will be confined for 45 days... How do I know if this is true? I live in ano...

    Kenneth’s Answer

    read NJSA 2A:160-1. Persons taken out of state to answer criminal charge; warrant of governor or waiver of extradition 
 It shall be unlawful to take, or cause or procure to be taken, or aid or abet in taking any person from out of this state, for the purpose of answering any criminal charge that may have been preferred against such person in any other state, except in the manner prescribed in this chapter, unless such person consents to his removal from this state by waiving extradition in the manner provided by section 2A:160-30 of this title.
    
 L.1951 (1st SS), c.344.
 
2A:160-2. Expenses of returning fugitives from justice 
 2A:160-2. Whenever any person charged in this State with any crime shall flee from justice and be found in another state, territory or district, and the attorney general or the prosecutor for any county where such person is so charged shall recommend to the governor or person administering the government of this State that he demand the fugitive, so that he may be brought into this State for trial, and the fugitive shall, on the demand of the executive authority of this State, be delivered up for removal to this State, the expense of such removal, being first ascertained to the satisfaction of the prosecutor of the county where such person is so charged, and being approved by a judge of the Superior Court, shall be paid by the county treasurer out of the funds of such county.

    L.1951 (1st SS), c.344; amended 1991,c.91,s.129.
    
2A:160-3. Advance of money to prosecutor for expenses of extradition ; statement filed and approved by court 
 2A:160-3. The county treasurer of any county may advance to the prosecutor of the county, or to such person as the prosecutor shall designate, from the funds of such county appropriated, set aside and available for court expenses, money necessary to defray the expenses of the prosecutor or such person as he shall designate, to be used for the arrest, extradition and return from foreign jurisdictions of persons charged with violating the criminal laws of this State, and who are fugitives from justice. No such money shall be advanced by the county treasurer, except upon written order of the prosecutor with the approval of the Assignment Judge in such county indorsed thereon, and unless the prosecutor shall file with the county treasurer a statement of the purposes for which the money is to be used and an estimate, in reasonable detail, of the anticipated expenses. 2A:160(1-25) Uniform Criminal
    Extradition Act -Extradition Proceeding
    The court may withhold bail or grant bail to a fugitive charged in another state; if the person is charged with a crime punishable by death or life imprisonment, no
    bail shall be granted.

    Source http://www.judiciary.state.nj.us/directive/municipal/supplement_dir_9_05_bail_schedules.pdf

    3:26-1. Right to Bail Before Conviction
    Extradition Proceedings. Where a person has been arrested in any extradition proceeding, that person may be admitted to bail except where that person is charged with a crime punishable by death.

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  • If I am driving, and I get stopped and they want to search the car. My friend did not tell me he has weed. Will I be charged?

    I have no knowledge that he brought drugs in m car.

    Kenneth’s Answer

    CONSTRUCTIVE POSSESSION OF DRUGS IN A CRIMINAL CASE REQUIRES THE STATE TO PROVE INTENT TO EXERCISE PHYSICAL CONTROL

    In State v. Reeds 197 NJ 280 (2009) the NJ Supreme Court stated:
    “Plainly, such possession can be constructive, meaning that "`although [a defendant] lacks physical or manual control, the circumstances permit a reasonable inference that [the defendant] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" State v. Lewis, 185 N.J. 363, 371 (2005) (quoting State v. Spivey, 179 N.J. 229, 236-37 (2004) (internal citation and quotation marks omitted)).
    Mere presence in a car or house is not sufficient for constructive possession.

    "For this offense the state must prove three material elements. First, it must be proved that the item is a controlled dangerous substance. Second, it must be proved that defendant either obtained or possessed the substance. Third it must be proved that defendant acted knowingly or intentionally." 33 N.J. Practice §521 p.475.

    The state must prove that the defendant acted knowingly or intentionally. The state must prove that defendant knew the nature and character of the item, and it must prove that defendant's purpose in possessing the substance. 33 N.J. Practice §520 p.471 (1982).

    Possession is the intentional control of an item accompanied by an awareness of its character. Constructive possession is when the defendant is aware of the substance and has an intention to exercise control over the substance. State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

    Joint possession is when people knowingly share control over the article. State v. Raja, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975).

    It is an offense to knowingly or intentionally obtain or possess a controlled dangerous substance. N.J.S.A. 24:21-20a. "The state must prove knowledge or intent on the part of the defendant. Knowledge means that the defendant was aware of the existence of the object and was aware of its character. Intent means it was the defendant's purpose to obtain or possess the item while being aware of its character. State v. McMenamin, 133 N.J. Super. 521, 524, 337 A. 2d 630, 631 (App. Div. 1975); State v. Brown, 67 N.J. Super. 450, 455, 171 A. 2d 15, 18 (App. Div. 1961).

    Mere presence in a premises with other persons where controlled dangerous substances are found is not sufficient to justify an inference that a particular defendant was in sole or joint possession of the substance. State v. Sapp, 71 N.J. 476, 477, 366 A. 2d 334, 335 (1976), overruled on other grounds by State v. Brown, 80 N.J. 587, 404 A. 2d 1111 (1979).

    The state must prove that the defendant was aware of the character of the substance to prove that the defendant acted with knowledge. State v. Reed, 34 N.J. 554, 557, 170 A. 2d 419, 421 (1961); State v. Rajnai, 132 N.J. Super. 530, 536, 334 A. 2d 364, 367 (App. Div. 1975). More info at http://www.njlaws.com/constructive_possession.html

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  • I have been denied restoration of my DL by njdmv. After completing IDRC and 3 mo. suspension for dui & pd all fines/surcharges.

    I was eligible to get license back 7-26-15. Njdmv is now saying I have to be reevaluated by IDRC because they found a DUI from 1986 on my abstract. That is 29 years ago. What is the statutory time period between offenses? Do DMV and idrc have the ...

    Kenneth’s Answer

    WHAT WILL HAPPEN AT THE IDRC (if you are a NJ licensed offender, OR, you are an OUT of STATE licensed offender AND you live within a 50 mile radius of NJ):
    If you have been convicted of an alcohol or drug-related traffic or boating offense in New Jersey or in another State while holding a New Jersey driver’s license, you must satisfy the requirements of both the IDP and the IDRC as sentenced by the convicting court. If you have been sentenced to a 12-hour IDRC program, you will be detained, attend educational workshops, and receive an “at-risk” screening for at least six hours each day on two consecutive days (a total of 12 hours) in your county IDRC. If you are sentenced to a 48-hour IDRC program, you will be detained, attend educational workshops and receive an “at-risk” screening during a period of 48 consecutive hours in a regional facility. If you are sentenced as a third or subsequent offender, the court may sentence you to jail and/or to an inpatient addictions treatment program; or both. IDP will then schedule you to appear at the 12-hour IDRC for follow up. In all cases, you must satisfy the program, fee, and treatment requirements of the IDP/IDRC. Failure to satisfy the program requirements may impede the reinstatement of your driving privileges or extend your driving suspension period.
    WHAT HAPPENS AFTER I HAVEEEN DETAINED AND SCREENED?
    You may be referred to an addictions treatment program for further assessment. If you are referred for a substance abuse assessment, and treatment is recommended, the IDRC is responsible to monitor you during treatment services. You must complete this treatment as part of your sentence/conviction requirements.
    Note: If you are an out of state offender and live within a 50 mile radius of an IDRC in New Jersey, you will be scheduled to appear at the geographically closest New Jersey IDRC AND MUST ATTEND AS SCHEDULED BY THE IDP.
    IF YOU ARE AN OUT OF STATE LICENSED DRIVER AND LIVE MORE THAN 50 MILES FROM NJ:
    You will be given an opportunity to satisfy the requirements in your home state. The IDP will mail your conviction requirements to your address listed on your conviction documents. IF YOU DO NOT RECEIVE THE DUI OUT OF STATE OFFENDER REQUIREMENTS WITHIN 60 DAYS OF YOUR CONVICTION ---call the IDP Call Center number below.
    NOTE: you may also contact any of NJ’s IDRC’s and request to be scheduled to complete your Education Requirements. YOU WILL BE REQUIRED TO HAVE AN ADDICTIONS ASSESSMENT AND POSSIBLE ADDICTIONS TREATMENT, if indicated.
    CONVICTED I LIVE OUT OF STATE OR HAVE
    ADDICTIONS TREATMENT:
    If you are seeking treatment and would like a list of the Intoxicated Driving Program (IDP) affiliate treatment providers, call your County Intoxicated Driver Resource Center (IDRC). For more information, visit: http://www.nj.gov/humanservices/das/treatment/idp/
    Financially indigent NJ residents meeting certain eligibility requirements may qualify for treatment resources through the Driving Under the Influence Initiative (DUII) fund. For further information on DUII please visit: http://www.state.nj.us/humanservices/das/treatment/dui/
    QUESTIONS RELATED TO DRIVER’S LICENSE RESTORATION:
    For questions about driver’s licenses, please call the NJ Motor Vehicle Commission at (609) 292-7500. To obtain a copy of your life-time New Jersey driving history, please call (609) 292-6500

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  • Can you get possesion charges taken off your record?if so, how much does it cost?

    The charges are possesion of a controlled substance.

    Kenneth’s Answer

    ERASE/ EXPUNGEMENT OF ARRESTS AND CONVICTIONS TO AVOID EMBARRASSMENT AND DISCLOSURE

    BY KENNETH A. VERCAMMEN, ESQ.
    If someone has been arrested or even had a private criminal complaint signed against them in the Municipal Court, they have a criminal record, even if the charges were dismissed.
    Under NJSA 2C:52-1 et seq. past criminal arrests and convictions can be expunged/ erased under certain instances. We always recommend individuals hire an attorney to obtain an expungement. The process for all expungements are held in the Superior Court. It takes a minimum of three months for the court to grant the expungement. The requirements are very formal. There can be a waiting period between 6 months up to 10 years after the criminal cases is finished. More info at http://www.njlaws.com/expungement.html
    When retaining the attorney, obtain a "certified disposition" of the court's decision, from the Court itself. Court costs and Legal fees for expungement range from $1,500- $2,500.
    Thousands of citizens over the past 30 years have been arrested for criminal, disorderly, and municipal ordinance offenses. The courts and police must keep a record of all arrests and convictions, even if 30 years old. These "secrets of the past" could be open to anyone including credit agencies. Under one proposal, for a $15.00 fee, someone could ask the state police for a person's criminal record, even arrests with not guilty findings. Allowing access to a person's old criminal conviction or arrest record could open the door for discrimination or job loss against someone who now is a productive, respected, and law abiding citizen. Many employers often do a criminal background check on new and promoted employees.
    Fortunately, if you are a law abiding citizen, you can now have old arrests or most convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal arrests and convictions can be expunged/ erased under certain instances.
    Waiting periods
    If you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. The waiting period starts from the full payment of fines, completion of probation or other requirements, whichever finishes latest.
    If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased after 6 months has passed since termination of probation or conclusion of court proceedings.
    Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting.
    The waiting period on an indictable charge [guilty plea in Superior Court] is 10 years. [There is a new hardship provision to apply for expungement 5 years after probation is up. Speak with an experienced attorney]

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  • Got a ticket for careless driving in nj with court appearance required. Jail time likely?

    Was going down the road with some kind of police activity on the opposite side. Officer was waving traffic through and I thought he was waving me in but was apparently still directing the guy ahead of me. I pulled ahead but looked away for a spl...

    Kenneth’s Answer

    Careless driving requires the State to provide the vehicle was operated by the defendant carelessly or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property

    The NJ Appellate Division in held in State v Lutz 309 N.J. Super. 317 (App. Div. 1998) that merely because an accident took place a driver does not been the driver is guilty of careless driving. The court wrote:
    "Finally, we find merit in defendant's contention that the State failed to prove beyond a reasonable doubt that he was guilty of careless driving.
    The court wrote:
     It appears that both the Municipal Court judge and the Law Division judge applied a res ipsa loquitur analysis in finding defendant guilty of careless driving.   The doctrine of res ipsa loquitur, however, has no application in the determination of careless driving due to the quasi-criminal nature of the proceeding in which the State has the burden of proving beyond a reasonable doubt all elements of the offense.   See State v. Wenzel, 113 N.J.Super., 215, 216-18, 273 A.2d 395 (App.Div.1971) (the mere fact of an “otherwise unexplained jackknifing” where a tractor-trailer entering a construction area had jackknifed on the wet roadway, crossed into the opposite lane and broadsided another truck fatally injuring the truck's driver, did not establish that the defendant had been driving carelessly.)
    The careless driving statute provides:
    [a] person who drives a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
    [N.J.S.A. 39:4-97.]
    Here, other than the accident itself, the State only presented defendant's statement that his vehicle began to slide on the wet highway and continued to do so when he tapped his brakes.   Moreover, his apology was not an admission to driving carelessly, but merely a statement that his car had slid on the wet pavement.   The State presented no evidence indicating that defendant had been speeding, driving too fast for the wet road conditions, distracted or otherwise driving without due caution and circumspection.   Consequently, there was insufficient evidence to support defendant's conviction for careless driving, and we reverse that conviction.

    In State v. Wenzel, 113 N.J. Super. 215 (App. Div. 1971) defendant was charged with careless driving when his tractor-trailer jackknifed and struck another trailer. The State's only witness did not see the accident. There was no evidence defendant was speeding or that he drove without due caution or circumspection. However, both the municipal and county courts determined that an otherwise unexplained jackknifing was indicative of careless driving. The Appellate Division reversed, holding the res ipsa doctrine employed by the lower courts had no place in a quasi-criminal action for careless driving. The rationale of the Wenzel decision applies to this case.

    See also State v Roenicke 174 N.J. Super. 513 (Law Div 1980)
    Defendant was involved in a one-car accident which was not observed by the trooper or any other witness. The State failed to establish beyond a reasonable doubt that he drove in a reckless manner. Defendant cannot be found guilty of reckless driving, and his conviction is set aside.

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  • I got 3 tickets and is worrying how to respond

    I was driving on 73 in a 50 mph zone. The police pulled me over and took my license. I wasn't able to provide the car registration and insurance paper as it was mistakenly kept in home. After checking my license he told me that my license is revok...

    Kenneth’s Answer

    Few courts and attorneys are aware of the provisions of NJAC 11:3-34, which allows insurance companies to charge additional surcharges to drivers who drive while suspended. These insurance company surcharges are in addition to MVC surcharges and fines. For Driving While Suspended pursuant to 2C N.J.R. 576 a driver is given 9 Automobile Eligibility Points. There are two types of license suspension:
    1. Court imposed suspension 2. Administrative / MVC suspension The most common scenario reflects where that the client, through a motor vehicle violation, failure to pay a surcharge or accumulated points have been placed on a suspended list maintained by the New Jersey Division of Motor Vehicles (MVC), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state. If the client is aware that they are on the suspended list and acknowledged to the police officer that they were suspended, there is little room for creative legal defenses. The lawyer in this case would most likely discuss how to mitigate penalties or negotiate a plea bargain. However, more often than not the attorney will be confronted by the client who claims that they were unaware of their placement on the suspension list. The scenario that will often be presented by the client is that he/she was stopped by police for an unrelated motor vehicle violation. In the process of the police encounter they were informed by the officer that their license has been suspended and they were issued an additional summons for DWS.
    THE STATE MAY BE UNABLE TO SHOW DUE PROCESS AND ADEQUATE NOTICE The Prosecutor should be required to show adequate notice of the suspension. In Parsekian v. Cresse 75 N.J. Super. 405 (App Div. 1962), the court ruled that it was incumbent upon the Director of the State Division of Motor Vehicles (now MVC) to provide fair and adequate notice to the licensed driver of the proposed suspension of their license. The court recognized that the Director could not arbitrarily suspend the license of a driver without providing both notice and enunciating specific reasons as to why the license was being suspended. A later case, State v. Wenof 102 N.J. Super. (Law Div. 1968), both reinforced and advanced the earlier Parsekian decision.
    Wenof represents the substantive foundation upon which all subsequent cases involving the notice issue have been based. In Wenof, the court again recognized the importance of adequate notice of suspension. The court related, "There is always a risk that notice may not reach the intended person, but this is not the test for legal sufficiency. The test is rather, whether the notice was reasonably calculated to reach the intended parties." Id at 375. In Wenof, the MVC sent to a written notice of proposed suspension (for failure to satisfy a summons) by regular mail. The MVC thereafter sent an order of suspension by ordinary mail. The notices were mailed to the defendant's last address. By failing to leave a forwarding address informing the MVC where he could be reached by mail, the court stated "he should not be heard to complain of lack of due process, He had it." The court found the defendant guilty. In State v. Ferrier 294 NJ Super. 198 (App. Div. 1996) a defendant attacked the validity of a suspension four months earlier. A two judge panel rejected the challenged to a DWS and held that “An order of suspension by the Director is a decision by a state administrative agency which may only be challenged directly in the Appellate Division after all administrative remedies have been exhausted. R. 2:2-3(a)(2); Pascucci v. Vagott 71 N.J. 40, 53 (1976). Jurisdiction to consider an attack on a final decision of a state administrative agency is vested exclusively in the Appellate Division by way of appeal; the Law Division may not entertain such a challenge. State v. Doe 165 N.J. Super 392, 400 (App. Div. 1979). To the extent that State v. Wenof, 102 N.J. Super 370,

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  • I received a speeding ticket, on gsp north 80 in a 55. What are my options.

    Can NOT have anymore points.

    Kenneth’s Answer

    The landmark case on Laser speeding tickets is In the Matter of the Admissibility of Motor Vehicle Speed Readings Produced by the LTI Marksman 20-20 Laser Speed Detection System 314 N.J. Super. 233, 714 A.2d 381; (Law Div. 1998) aff’d 326 N.J. Super. 110. (App. Div 1999)

    The Law Division held admissibility of such readings shall be subject to the rules set forth below:

    1. Expert testimony in support of admissibility shall not be required, except as specifically set forth below.

    2. Appropriate training of the law enforcement officer operating the laser speed detector shall be shown in each case.

    3. Pre-operational checking procedures recommended by the manufacturer of the laser speed detector shall be shown to have been made in each case.

    4. Speed measurements shall be admitted whether made in daylight or at night and within any temperature range likely to be found in New Jersey, even if made under conditions of light or moderately heavy rainfall, but speed measurements taken during heavy rain or while snow is falling shall not be admitted without the support of adequate expert testimony in the individual case.

    5. Speed measurements made at any distance up to 1,000 feet shall be admitted, but measurements made at any distance in excess of 1,000 feet shall be admitted only with the support of adequate expert testimony in the individual case.

    This case was affirmed State v. Abeskaron (In re Admissibility Hearing of the LTI Marksman 20-20 Laser Speed Detection Sys.), 326 N.J. Super. 110. November 24, 1999

    In State v. Dantonio, 18 N.J. 570 (1955), the N.J. Supreme Court held there can be variation in the Speed measuring device.
    State v. Readding, 169 N.J. Super. 238 (Law Div. 1978) restated the general rule that in order for the speed measuring device speedometer reading to be admissible into evidence, it should be established that: (1) the device is scientifically reliable; (2) the particular speedometer used in the case being tried is accurate; (3) the operator is qualified; and (4) the device was operated properly in the case being tried.

    Radar emits a beam anywhere from 50 to 320 feet, which makes it impossible to select or focus on one particular traffic vehicle at any significant distance. No police traffic radar is lane sensitive. U.S. Department of Transportation, National Highway Traffic Safety Administration's "Basic Training Program in RADAR and Measurement -- Trainee Instruction Manual (1983) p 3-4
    According to the U.S. Department of Transportation, National Highway Traffic Safety Administration's "Basic Training Program in RADAR and Measurement -- Trainee Instruction Manual (1983)"The N.H.T.S.A. Id. at 3-11 to 3-12 :

    An improperly high RADAR target display can result due to the angular effect through conditions that exist naturally or are created by an officer.
    It is critical that the officer know how to avoid these situations when possible and, when they are unavoidable, to recognize that a speed displayed is artificially high.
    Certain unavoidable road conditions can result in the RADAR making it seem that the patrol car is traveling more slowly than it actually is. If a less- than-true patrol speed measurement is taken by the RADAR, (this) will produce an incorrectly high target speed.
    The target speed displayed to the operator would be 5 mph higher than the target's true speed. Any enforcement action taken due to this displayed speed would, of course, be improper. In State v. Wojtkowiak, 170 N.J. Super. 44 (Law Div. 1979), rev'd on other grounds, 174 N.J. Super. 460, Id. at 3-15

    See question