Written by attorney Kenneth Albert Vercammen

Fall Municipal Court Law Review 2019

  1. Reduced DL suspension for DWI with law Expanding Use of Ignition Interlock Devices P.L.2019, c.248.
  2. Police false promise of no jail and leniency required suppression of confession State v. L.H. 3 Weapons search not permitted here after DV TRO State v. Hem

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Weapons search not permitted here after DV TRO State v. Hemenway The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion. (A-19-18) 4 For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented State v. Patel To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: “(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion. (A-13-18) 5. When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant Mitchell v. Wisconsin 139 S. Ct. 2525 (2019) (a) BAC tests are Fourth Amendment searches. See Birchfield v. North Dakota,579 U.S. ___, ___, 136 S.Ct. 2160, 195 L.Ed.2d 560. A warrant is normally required for a lawful search, but there are well-defined exceptions to this rule, including the "exigent circumstances" exception, which allows warrantless searches "to prevent the imminent destruction of evidence." In McNeely, this Court held that the fleeting nature of blood-alcohol evidence alone was not enough to bring BAC testing within the exigency exception. Missouri v. McNeely 133 S.Ct. 1552 But in Schmerber v. California 86 S.Ct. 1826the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence. Like Schmerber, unconscious-driver cases will involve a heightened degree of urgency for several reasons. And when the driver's stupor or unconsciousness deprives officials of a reasonable opportunity to administer a breath test using evidence-grade equipment, a blood test will be essential for achieving the goals of BAC testing. (b) Under the exigent circumstances exception, a warrantless search is allowed when "`there is compelling need for official action and no time to secure a warrant.'" McNeely 133 S.Ct. 1552. P. 2534. (1) There is clearly a "compelling need" for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test. First, highway safety is a vital public interest—a "compelling" and "paramount" interest, Mackey v. Montrym 99 S.Ct. 2612 Second, when it comes to promoting that interest, federal and state lawmakers have long been convinced that legal limits on a driver's BAC make a big difference. And there is good reason to think that such laws have worked. Birchfield 136 S.Ct., at ___. Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court. Id., at ___, 136 S.Ct., at ___. And such testing must be prompt because it is "a biological certainty" that "[alcohol dissipates from the bloodstream," "literally disappearing by the minute." McNeely 133 S.Ct. 1552 (ROBERTS, 2530*2530 C.J., concurring). Finally, when a breath test is unavailable to promote the interests served by legal BAC limits, "a blood draw becomes necessary." Id., at 133 S.Ct. 1552. (2) Schmerber demonstrates that an exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Because both conditions are met when a drunk-driving suspect is unconscious, Schmerber controls. A driver's unconsciousness does not just create pressing needs; it is itself a medical emergency. In such a case, as in Schmerber, an officer could "reasonably have believed that he was confronted with an emergency." 86 S.Ct. 1826. And in many unconscious-driver cases, the exigency will be especially acute. A driver so drunk as to lose consciousness is quite likely to crash, giving officers a slew of urgent tasks beyond that of securing medical care for the suspect— tasks that would require them to put off applying for a warrant. The time needed to secure a warrant may have shrunk over the years, but it has not disappeared; and forcing police to put off other urgent tasks for even a relatively short period of time may have terrible collateral costs. (c) On remand, Mitchell may attempt to show that his was an unusual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. 6. Refusal of consent to search is inadmissible at trial State v Tung unpublished The court reverses defendant's conviction after trial for murder of his estranged wife's lover. The court determines that testimony and an unabridged audiotape of defendant's invocation of the right to counsel, his refusal to consent to a search of his computer and car, and the interrogating officer's opinion that defendant was lying cumulatively constitute plain error. The court relies on federal and out-of-state case law to decide that a refusal of consent to search is inadmissible in these circumstances. Given the paucity of direct evidence of defendant's guilt, this improperly admitted evidence undermines the integrity of the verdict. (A-3692-15T1) source 8 Photo Municipal Court Annual Meeting Seminar Speakers: Kenneth A. Vercammen, Esq. Orange Prosecutor Gracia Montilus, Esq., Peter H. Lederman, Esq., Joshua H. Reinitz, Esq., Ronald P. Mondello, Esq., Also speaking Hon. Ashlie C. Gibbons J.M.C., Newark Municipal Court Hon. Harry D. Norton Jr., J.M.C., Pascack Joint Municipal Court 9 Office for rent Professional Office Space 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 approx 8 x 9 -office room # 5 plus use of reception room 16.6 x 7.2 and use of storage area in basement Previously used by Robert Blackman, late former Judge and Prosecutor of Edison $500 per month [was $600] Call 732-816-4449 Owner of building is local attorney, Kenneth Vercammen who handles Municipal Court, Estate Planning & Probate, and Criminal Law. 10 Recent NJ Municipal Court Cases webinar December 11, 2019 - the Foundation of the Municipal Court Attorney’s Arsenal an NJICLE webinar Noon-1:40pm Featuring: David R. Spevack, Esq. Municipal Court Prosecutor Edison, Woodbridge, Carteret Francis M. Womack, III, Esq. Municipal Court Prosecutor Edison, Piscataway, Sayreville, South Amboy John E. Kawczynski, Esq. Municipal Court Prosecutor Metuchen & Piscataway Chirag Mehta, Esq. Prosecutor Irvington and Morris Plains and Municipal Court Alternate Prosecutor Edison, New Brunswick, Rockaway Township, and Perth Amboy. Kenneth A. Vercammen, Esq. Past Chair, NJSBA Municipal Court Practice Section Join the bar for a convenient luncheon webinar and become familiar with the newest key municipal court law cases that should be part of your legal arsenal. Seminar WMCP064819 NJCIEL Phone: (732) 214-8500 · [email protected] N.J. Municipal Court - Law Review SUBSCRIPTION INFO Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review. This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice. Vouchers accepted. Please send a stamped, self-addressed envelope for their return. Multiple subscriptions encouraged. Please must send a $20.00 check payable to Vercammen & Assoc PC. If the law firm or municipality no longer wishes to subscribe, please fax or mail us. Name: ______________________________________ (or staple business card here) Address: ______________________________________ We also need your email address ________________________ Return to: Kenneth A. Vercammen, Esq., Editor- NJ Municipal Court Law Review 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 Tax ID # available Free Office Space for Transitional or New Attorney and work with Metuchen Public Defender and go to Court & Mentor program- Edison, NJ The Metuchen Public Defender Kenneth Vercammen has a space sharing opportunity for new lawyer or recent Transitional attorney to get experience and go to court and learn NJ Law office procedures and handle some Municipal court cases. This is a mentoring experience where you can learn NJ Law Office Procedure. Must be licensed in NJ. Help handle Wednesday night 5:15 -7:55pm Metuchen Municipal Court matters and two Friday mornings per month. Attorney will be provided with use of desk, plus if needed additional private office space in furnished basement to start their practice, rent-free. They can see clients in first floor office rooms. In return they will handle municipal court appearances, Telephone communications with courts, Prosecutors, clients, etc, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week. -Call Courts to follow up on Letter of Representation and scheduling of hearings & call Police Departments to follow up on discovery - Prepare timesheets on Fatal Accident cases -Call clients and remind them of hearing dates and what to do - Update Criminal and Civil blogs with recent cases -Assist at Senior citizen Will Seminars and Municipal Court programs Go to court and get court experience. Excellent opportunity to jump-start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car. Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations. Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: to learn about our office. More details at If interested, fax, mail , fax or email a resume and cover letter. KENNETH VERCAMMEN, Esq. Metuchen Public Defender 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 [email protected] __________________________________________ The following is included with office use: Desk space Reception room for clients and use as Bona Fide Office You can copy and use our Complaints, Motions, Form Letters and Pleadings. Use our marketing books, marketing CDs, Criminal, Municipal Court and Elder law audiotapes and video library now located in basement Use of our computer forms Motions, Complaints, and Form letters Ability to use a file cabinet in basement to store your old files Lighting/ Utilities Bathroom Supplies Landscaping / Snow Removal Valuable advice Hot water, municipal water/sewer charge paid Other Duties/ Services to Clients - Help add our 900+ criminal articles and statutes to our new criminal articles blog [We will teach you how to add articles to Blogs] -Prepare Police Chief letters - Whatever else needed to assist clients [ex Motions, ] About Mentor Program Director: Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney. Mr. Vercammen has published 125 articles in national and New Jersey publications on criminal, traffic, DWI, probate, estate planning, and litigation topics. He has been selected to write the book on Criminal Law for the American Bar Association. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section and is the Co-Chair of the ABA Criminal Law committee, GP Division. He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. As the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is also a recipient of the NJSBA- YLD Service to the Bar Award. In his private practice, he has devoted a substantial portion of his professional time to the preparation for trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings. He serves as the Editor of the popular legal websites Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book Criminal Law Forms and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years. He is admitted to the Supreme Court of the United States. Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year. Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law. For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years. His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class. Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4th degree black belt. KENNETH VERCAMMEN ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500

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