Damian Updates his webarticle "10 Most Common Municipal Court Myths" for 2009

Posted on December 26, 2008 at 2:03 pm

Damian’s 10 Most Common Traffic Court Myths…

1.) “There Is Nothing You can Do About a Speeding Ticket.”

In the traffic court, the Prosecutor must prove every element of a speeding charge against your beyond a reasonable doubt. Under the case law, K55 radar in only admissible if: (1) the police officer using the radar is properly trained and experienced to operate the K55 radar; (2) the K55 radar device was properly calibrated; (3) if the K55 radar was administered in the moving mode, the speedometer was properly calibrated; and (4) the K55 radar was operated in the manual mode at all times.

In some cases, the Police may use a “laser speed detection system” The New Jersey Courts have approved the use of speed measurements generated by the LTI Marksman 20 – 20 Laser Speed Detection System in the municipal courts under certain circumstances. These include: (1) The officer operating the laser speed detector was appropriately trained; (2) the Manufacturer’s recommended “checking procedures” were be followed; (3) it was not raining or snowing heavily, and if it was, an expert testifies that the rain or snow did not affect the functioning of the device; and (4) the speed measurement was made at 1,000 feet or less. If it was more than 1,000 feet, the speed measurement must be supported with adequate expert testimony.

With the use of comprehensive pre – trial discovery conducted by my office, an understanding of the case law, Rules of Court, Rules of Evidence and an expert witness, you can go to court prepared to challenge the State’s evidence. If the reliability of the speed measurement is compromised, depending on the circumstances, I can negotiate with the Prosecutor to downgrade or dismiss your speeding charges. This could be the difference between being found guilty of a 2 point speeding ticket instead of a 4 point speeding ticket or perhaps avoiding motor vehicle points altogether. It may also constitute sufficient cause to justify imposing the minimum fines instead of the maximum and / or enhanced penalties.

2.) “There is Nothing You Can Do About a DWI.”

In the traffic court, the Prosecutor must prove every element of a Driving While Intoxicated charge beyond a reasonable doubt. Under the case law, the admissibility of a “breathalyzer” reading is conditioned upon: (1) the proper operation of the breathalyzer, which must be in proper working order; (2) the police officer administering the breath test was qualified; and the breath test was properly administered. The burden is on the prosecutor to establish this by “clear and convincing evidence.”

Even if the breathalyzer reading is disregarded by the court, the prosecutor can still attempt to convict you based on the results of the field sobriety tests the police officer may have administered to you during the traffic stop. These include, the walk and turn test, the one leg stand test and the horizontal gaze nystagmus test. Under the National Highway Transportation Safety Administration guidelines, if any of the standardized field sobriety tests elements are changed, the validity of the results are compromised. Even when the tests are administered properly, they have a 65% – 68% rate of accuracy.

With the use of comprehensive pre – trial discovery conducted by my office, an understanding of the case law, Rules of Court, Rules of Evidence and an expert witness, you can go to court prepared to challenge the State’s evidence. It is important to remember that pursuant to the New Jersey Supreme Court Guidelines, “no plea agreements whatsoever will be allowed in drunken driving offenses.” This means that unless the evidence does not support the DWI charges, the Prosecutor cannot amend or dismiss a DWI charge. If the reliability of the breathalyzer and the field sobriety tests are compromised, depending on the circumstances, I can present this information to the judge to argue that you’re your DWI charges should be dismissed or that you should not be subjected to the maximum license suspension and fines.

When evaluating the propriety of the field sobriety tests and the breathalyzer readings and administration, my office consults Herbert Leckie of DWI Consultants, Inc. For an additional fee payable to Mr. Leckie’s firm, Mr. Leckie, a retired New Jersey State Police Breathalyzer Coordinator will examine your discovery materials, write a report and if necessary, testify in court at a suppression hearing or your trial. Because the rules of evidence prohibit you and I from testifying in court about proper breathalyzer and field sobriety test administration, an expert such as Mr. Leckie, is required to challenge the State’s evidence.

3.) “The Judge or DMV Cannot Revoke My License for Speeding, Careless or Reckless Driving.”

Pursuant to N.J.S.A. 39:5 – 31, a law which has not been amended since 1953, a municipal court judge may “revoke the license of any person to drive a motor vehicle, when such person shall have been guilty of such willfull violation of any of the provisions of [the motor vehicle and traffic laws].” This means, if the judge determines that you “willfully violated” the motor vehicle and traffic laws (e.g. speeding, careless driving, reckless driving), he or she may suspend your license (either on their own initiative or the request of the prosecutor) for an unspecified amount of time and without prior notice!

I personally question whether this statute is Constitutional, but it is nevertheless the law in the State of New Jersey until it is repealed or declared unconstitutional by a State or Federal Court. I challenged this in the New Jersey Appellate Division in the matter of State of New Jersey v. Robert C. Morgan, Jr., 393 N.J. Super. 411 (App. Div. 2007) If you have been charged with traveling at a high rate of speed, or driving in a careless or reckless manner, my office can assist you in assessing the risks of taking your case to trial.

If you are driving with an “examination permit,” Pursuant to N.J.S.A. 39:3 – 13, the State “shall without the exercise of discretion or a hearing, suspend the examination holder’s permit for 90 days.” If the permit holder is convicted of a subsequent violation, which imposes motor vehicle points, the State shall postpone the issuance of a basic driver’s license to permit holder for 90 days.

4.) “The Points and Suspension Will Not Transfer Out of State if I Have an Out of State License or If I Get an Out of State License.”

Under the Interstate Driver’s License Compact, member states of the compact “shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. New Jersey has been a member state since 1967. There are approximately 39 party states including New Jersey, New York, Pennsylvania, Connecticut, Florida, Delaware, Maryland and the District of Columbia that belong to the compact.

Under the compact, the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported by the reporting state as if it were committed in the home state. The compact also provides that “upon the application for a license to drive, the licensing authority in a party state shall ascertain whether the applicant has ever held, or is the holder of a license drive issued by an other party state. A license shall not be issued if the applicant’s license is under suspension or revocation by another party state. If the license is under revocation, a member state may issue a license a year after the revocation only if it will be safe to grant such a license.

The compact is important because (1) it prohibits New Jersey residents who are suspended or revoked from obtaining licenses in member states during a period of revocation or suspension and (2) it subjects out of state drivers from member states to points and suspension in their home states, even if the offense was committed in New Jersey. If you are an out of state resident, it is important to seek counsel in you home state to ascertain, what, if any penalties you will face when a New Jersey conviction is reported to your home state. My office represents out of state drivers who receive tickets while traveling in New Jersey.

5.) “The Ticket Will Go Away If I Ignore It”

Traffic Tickets are carefully tracked by the Administrative Office of The Courts with a system called Automatic Traffic System. In 2006 nearly 6.6 million municipal court cases were processed statewide. Also in 1995, the municipal courts generated $400,000,000.00 in fines and penalties. Despite the large volume of cases, the Municipal Courts maintain a watchful eye over the tickets pending before them.

Under the Non – Resident Violator Compact, drivers from member states of the compact traveling through another member state may do so without having to post collateral to secure his or her appearance (bail) after being issued a traffic summons. New Jersey has been a member of the compact since 1983. There are 25 states including New Jersey, Florida, Indiana and Ohio that belong to this compact. The compact also provides that if New Jersey reports to the driver’s home state that the person receiving the ticket failed to appear for trial or pay fines in New Jersey, the home state shall initiate initiate suspensions procedures against the driver until compliance with the New Jersey Courts is had. New Jersey may also suspend the driver’s ability to drive in this State. This means that even if the home state may not have suspended the driver’s license, their ability to drive in or through the State of New Jersey is suspended and the driver may be charged with driving while suspended.

In addition, if any defendant who has been served with a traffic summons fails to appear for a court date, the Judge may issue a warrant for their arrest and request that the Division of Motor Vehicles suspend the defendant’s driver’s license. If the court does not issue an arrest warrant, it may report the failure to appear to the Division of Motor Vehicles and request that the driver’s license be suspended indefinitely. The case will still be subject to being reopened after the warrant for arrest is executed and the Police bring your before the judge. In addition to suspending your license and issuing an arrest warrant, the Courts may also hold a driver in contempt and issue a fine and require that bail be posted before you are released.

6.) “The Police Officer Told me He or She will ‘go easy on me’ at court”

This ambiguous assurance that many police officers make during a traffic stop often leads to defendants going to court unprepared for trial. Logically, if the police officer was going to “go easy on you” they would have done so at the time the summons was issued and not require you to go to court. This defendant may later find out that “going easy” meant paying a $100.00 fine instead of a $200.00 fine if they plea guilty to the 4 point speeding ticket they were issued. By the time a defendant realizes what “going easy” meant, they may be faced with either going to trial without an attorney and pre – trial discovery on their own or taking the police officer’s offer. It is also important to remember that you may only receive a certain “no point ticket” twice over 5 years without receiving points. A third or subsequent plea agreement to this charge will result in a fine up to $500.00 and an assessment of 4 points. This means you may unknowingly agree to be assessed 4 points on a speeding ticket that may only subject you to 2 points.

More importantly, certain municipal court offenses are not subject to plea agreements. This means that in certain circumstances, neither the prosecutor, or the police officer, have any discretion to dismiss the charges. These include Driving While Intoxicated (N.J.S.A. 39:4 – 50), Possession of Marijuana or Hashish (N.J.S.A. 2C:35 – 10a(4)), Being Under the Influence of a Controlled Dangerous Substance or its Analog (N.J.S.A. 2C:35 – 10B); and use, possession or intent to use or process drug paraphernalia (N.J.S.A. 2C:36 – 2).

Finally, although the police officer’s recommendations carry a lot of weight, the prosecutor and the judge must approve all plea bargains before they are accepted. In sum, although the police officer may have good intentions at the time of the traffic stop or just looking to avoid a confrontation, permissible plea arrangements must be consented to by the prosecutor and approved by the judge. Moreover, the Administrative Office of the Courts in Trenton from time to time reviews the disposition of certain municipal court cases for adherence to the governing rules and the propriety of disposition.

7.) “So What if I Get My License Suspended, I’ll Drive Any Way.”

The penalties for Driving While Suspended (N.J.S.A. 39:3 – 40) are severe. They are even more severe if you are convicted of driving while you are suspended for Driving While Intoxicated (N.J.S.A. 39:4 – 50) or driving without liability insurance (N.J.S.A. 39:6B – 2). For example, for a first offense of driving while suspended for Driving While Intoxicated or Driving Without Liability Insurance, a defendant may be subject to the following fines and penalties…

· Fines up to $1,000.00;

· Additional Driver’s License suspension from 12 to 30 months;

· Up to 90 Days in Jail if the operator was not involved in an accident, if they were, imprisonment from 45 to 180 days;

· If the operator was on or within 1,000 feet of a school, an additional 12 to 24 months, an additional $500.00 fine, and an additional 60 to 90 days in jail.

In addition to fines and penalties, pursuant to N.J.A.C. 13:19 – 31.1, the operator shall pay a surcharge to the State in the amount of $250.00 per year for 3 years, be ineligible to purchase liability insurance during suspension, and be subjected to even more severe penalties upon future convictions.

N.J.S.A. 39:3 – 40 also makes it illegal for a person who owns or leases a motor vehicle to permit another to operate their motor vehicle if that person knows that the operator’s license is suspended for DWI or that the operator’s license is suspended and has been previously convicted of driving while suspended within the last 5 years.

8.) The Cost of Hiring an Attorney is More than Just Pleading Guilty and Paying a Fine.

My office calculates its fees depending on your driving history and the amount and seriousness of the charges. For example, a conviction for a 1^st offense Driving While Intoxicated (without aggravating circumstances) will subject you to (1) a $3,000.00 surcharge to the DMV, which, if not paid, will result in an additional suspension period and (2) a fine up to $400.00 to $500.00 depending on you blood alcohol concentration. These fines increase for subsequent convictions.

In addition, because you will not be able to drive during your suspension period, your ability to work may be negatively impacted due to your lack of mobility or you will incur the costs of arranging for transportation. If the circumstances permit, you may be found not guilty after trial, you will not have to pay any of the fines or surcharges or be subjected to any period of suspension. If you are convicted and the circumstances can be argued affectively to the Court, you may be eligible to the minimum fines and penalties, which will save you money. If the circumstances permit, the financial advantages of retaining counsel may outweigh what, if anything, you may save by “just pleading guilty.”

9.) It’s Just a Ticket.

A traffic summons initiates a formal legal proceeding against you which must be takes seriously. The Courts of New Jersey have declared speeding charges (N.J.S.A. 39:4 – 98) to be “consequences of great magnitude.” One appellate court arrived at this conclusion after recognizing that a conviction for speeding can result in a potential fine [up to $200.00 plus court costs] and / or up to 15 days in jail and the possible imposition of a driver’ s license suspension. In addition, depending on the speed you were convicted of traveling at, you will be assessed either 2 (1 – 14 mph over the speed limit), 4 (15 – 29 mph over the speed limit) or 5 (30 mph or more over the speed limit) points on your license.

In addition to the regular fine of $50.00 to $200.00, you may be subject to having the speeding fine doubled if you were traveling…

· 20 miles per hour over the speed limit;

· through a 65 miles per hour zone;

· through an “area of highway or repair;” or

· through a “safe corridor.”

10.) If I lose at trial, I’ll just file an appeal.

Appeals from the Municipal Courts are heard in the Superior Court, Law Division, as appeals de novo on the record. As a result, a Superior Court Judge rehears the case based on a review of the Municipal Court proceedings, with occasional oral arguments by pro se appellants or defense attorneys. This means that the appeals court’s review is limited to the record that was made during the trial unless it appears that the record was unintelligible or the rights of the Defendant were prejudiced. The filing fee for a municipal court appeal to the Law Division is $75.00 and there is a minimum transcript deposit amount of $500.00. Notices of Appeal from the municipal court must be filed no later than 20 days after the entry of judgment.

Under the rules of court, if certain defenses or motions were not made prior to the municipal court trial, they may be barred from being argued on appeal. Also, if you feel that certain evidence should have been suppressed, you must make a proper written motion prior to trial. Your allegation that certain evidence was wrongfully obtained will be waived absent good cause shown if it is not raised prior to trial.

In sum, if you do not properly raise your defenses, file the required motions, present all of your witnesses’ testimony, cross examine the State’s witnesses effectively and provide reciprocal discovery to the prosecutor prior to the municipal court trial, your chances of succeeding on appeal will be prejudiced. Because presenting a defense in the municipal court is a complicated and technical procedure, you may find that having the assistance of a municipal court attorney is a wise strategy. If you have already been convicted, my office represents defendants in the appellate process. Please contact me to schedule a consultation to discuss your case.

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