Calibration Requirements Eased For DWI Testing Devices

Yesterday, the Appellate Division affirmed a ruling expanding the admissibility of certain blood alcohol concentration (“BAC”) tests used in driving while intoxicated (“DWI”) prosecutions. The decision, State v. Holland, A-4384-09T3, A-4775-09T3 (App. Div. Dec. 20, 2011), allows admission of BAC results derived from Alcotest breath-testing devices calibrated with a Control Company, Inc. (“Control Company”) digital thermometer, as opposed to the Ertco-Hart digital thermometer referenced in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, 555 U.S. 825 (2008).

The crux of this case surrounded whether the use of Control Company digital thermometers, used to measure the temperature of solutions tested in the calibration process of the Alcotest devices, rendered results of those Alcotest BAC tests inadmissible against DWI defendants. Thermometers are used in the calibration process to ensure that the alcoholic solutions that are being tested are 34.0 degrees Celsius (or within .2 degrees of that number), the average range of human breath.

Relying on the ruling in Chun, the defendant’s claimed that in order for the BAC tests to be admissible where a non-Ertco-Hart thermometer was used in calibration, the State had to produce a proper calibration certificate for the thermometer and also prove that the measurements made by the digital thermometer were National Institute of Standards and Technology (“NIST”) traceable in accordance with certain requirements listed on the NIST website.

Dr. Howard J. Baum, the Director of the New Jersey State Police’s Office of Forensic Sciences testified in the Law Division proceeding that the Control Company and Ertco-Hart thermometers were comparable and “identical in the performance of the singular function required.” The trial court relied on this testimony in determining that these thermometers were “substantially equivalent in all respects necessary to the performance of their singular functions.”

The court also found that Control Company’s Traceable Certificate of Calibration was a proper foundational document for the calibration of its digital thermometers, as Control Company was an accredited calibration laboratory.

Finally, the Law Division rejected the defendant’s argument that the State had to prove that the measurements made by the digital thermometer were NIST traceable in accordance with certain requirements listed on the NIST website. The court held that under Chun, the State is only required to produce the Calibration Report, which certifies that the digital thermometer had “‘been tested for accuracy with instrumentation that is traceable to’ the NIST.” The Control Company certificate adequately stated that the thermometer “was calibrated using Instruments Traceable to National Institute of Standards and Technology.” Therefore, Alcotest results may be admissible where the device was calibrated using Control Company thermometers.

Yesterday, the Appellate Division affirmed a ruling expanding the admissibility of certain blood alcohol concentration (“BAC”) tests used in driving while intoxicated (“DWI”) prosecutions. The decision, State v. Holland, A-4384-09T3, A-4775-09T3 (App. Div. Dec. 20, 2011), allows admission of BAC results derived from Alcotest breath-testing devices calibrated with a Control Company, Inc. (“Control Company”) digital thermometer, as opposed to the Ertco-Hart digital thermometer referenced in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, 555 U.S. 825 (2008).
The crux of this case surrounded whether the use of Control Company digital thermometers, used to measure the temperature of solutions tested in the calibration process of the Alcotest devices, rendered results of those Alcotest BAC tests inadmissible against DWI defendants. Thermometers are used in the calibration process to ensure that the alcoholic solutions that are being tested are 34.0 degrees Celsius (or within .2 degrees of that number), the average range of human breath.
Relying on the ruling in Chun, the defendant’s claimed that in order for the BAC tests to be admissible where a non-Ertco-Hart thermometer was used in calibration, the State had to produce a proper calibration certificate for the thermometer and also prove that the measurements made by the digital thermometer were National Institute of Standards and Technology (“NIST”) traceable in accordance with certain requirements listed on the NIST website.
Dr. Howard J. Baum, the Director of the New Jersey State Police’s Office of Forensic Sciences testified in the Law Division proceeding that the Control Company and Ertco-Hart thermometers were comparable and “identical in the performance of the singular function required.” The trial court relied on this testimony in determining that these thermometers were “substantially equivalent in all respects necessary to the performance of their singular functions.”
The court also found that Control Company’s Traceable Certificate of Calibration was a proper foundational document for the calibration of its digital thermometers, as Control Company was an accredited calibration laboratory.
Finally, the Law Division rejected the defendant’s argument that the State had to prove that the measurements made by the digital thermometer were NIST traceable in accordance with certain requirements listed on the NIST website. The court held that under Chun, the State is only required to produce the Calibration Report, which certifies that the digital thermometer had “‘been tested for accuracy with instrumentation that is traceable to’ the NIST.” The Control Company certificate adequately stated that the thermometer “was calibrated using Instruments Traceable to National Institute of Standards and Technology.” Therefore, Alcotest results may be admissible where the device was calibrated using Control Company thermometers.

Posted in DWI

Out Of State DWI Convictions And Sentencing Enhancement

Are convictions for “driving while ability impaired” (“DWAI”) in New York treated as prior convictions for sentencing enhancement purposes in subsequent New Jersey drinking while impaired (“DWI”) convictions?

  In State v. Zeikel, 30 A.3d 339 (App.Div. Nov. 9, 2011), the appellate division decision held that such prior convictions do, in fact, count for sentencing enhancement purposes. 

In Zeikel, the defendant was appealing his treatment as a third-time offender after a DWI conviction in New Jersey on June 15, 2010, stemming from an offense on December 6, 2009.  “Third-time offender”-status carried with it a 180 day jail sentence, a ten year driver’s license suspension, and other fines and penalties.  Defendant’s prior drunk driving related offenses included DWAI offenses in New York in September 1981 and June 1984 and a DWI in New Jersey in October 1994. 

The relevant New Jersey DWI statute, N.J.S.A. 39:4-50(a), provides enhanced penalties for a second offense and again for a “third or subsequent violation.”  However, the statute provides for a “step down”, which would limit enhancement of sentencing in certain situations.  If a second offense occurs more than 10 years after the first offense, the court will treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court will treat the third conviction as a second offense for sentencing purposes.

For Defendant’s 1994 New Jersey DWI conviction, the defendant was treated as a first-time offender, despite having the two prior New York DWAI convictions.  Therefore, defendant argued, since more that 10 years have elapsed since his 1994 conviction and his current conviction, he should have been sentenced as a first-time offender again under the “step down” provisions of N.J.S.A. 39:4-50(a)(3) (described above).  Both the Municipal Court and the Law Division rejected the defendant’s arguments and instead counted his New York DWAI convictions for sentencing enhancement purposes, and thus treated him as a third-time offender. 

Defendant put forward three arguments on appeal to the appellate division.  First, the amendment of the statute allowing out-of-state convictions to count for sentencing enhancement purposes, was enacted after his New York convictions and thus violated the constitutional provision against ex post facto laws.  Second, defendant claimed that there was sufficient evidence that his first New York DWAI conviction was below the BAC threshold required to count as a prior offense under the contemporaneous New Jersey Statute.  Third, defendant claimed that both of his New York DWAI convictions were not “substantially similar” to the New Jersey DWI statute and therefore must be excluded for sentence enhancement purposes. 

     The appellate division rejected all of the defendant’s arguments and held that the municipal court properly treated him as a third-time offender for sentence enhancement purposes.  Addressing the first argument, the court acknowledged that the amendment to N.J.S.A. 39:4-50, allowing out-of-state convictions “of a substantially similar nature” to count as prior convictions, was enacted in 1997, well after both of defendant’s New York DWAI convictions.  Nonetheless, the court held that as long as the law was “on the books” at the time that the triggering offense was committed, an enhanced sentence would not offend the ex post facto provisions of the Constitution.  Since the triggering offense here occurred in 2009, and the amendment was enacted in 1997, there was no ex post facto issue.

     Next, the court rejected the argument that the 1981 conviction was based on a conviction below the required New Jersey BAC threshold.  No records existed from defendant’s 1981 conviction, and the defendant certified that his BAC was .06% for the 1981 DWAI charge.  Nonetheless, the court held that defendant had not met his burden to provide “clear and convincing evidence” that the prior out-of-state conviction “was based exclusively upon a violation of a proscribed blood alcohol concentration of less than 0.08%.”  The court also noted that defendant did not have a right to notice of recidivist sentencing enhancements at the time of the prior convictions.   

Finally, the appellate division held that the New York DWAI statute was, in fact, “of a substantially similar nature” to the New Jersey DWI statute.  However, the court cautioned that not every out-of-state law regarding consumption of alcohol and driving will be treated as “substantially similar” for sentence enhancement purposes.  For there to be substantial similarity, the out-of-state statute must “require the consumption of alcohol to cause some degree of impairment on the defendant’s driving ability.”  Such impairment need not rely on, and would not necessarily turn on, evidence of the BAC level.  The New York statute required such alcohol-induced impairment and was, therefore, counted as a prior conviction for sentencing enhancement purposes.  

In Visitation Battle of Grandparent Vs. Grandparent, Grandparent Wins

Can a maternal grandmother with legal custody, who is assumed to be the “psychological parent” of the child, deny visitation to the paternal grandparents?  The answer is “not if such visitation is in the child’s best interests” according to Tortorice v. Vanartsdalen, 27 A.3d 1247 (App.Div. 2011), a recent decision by the New Jersey Appellate Division.

In this visitation battle between maternal and paternal grandparents, the child lived primarily with the maternal grandmother from birth in July 2006.  The paternal grandparents had informal periodic visits with their grandson, but, in an effort to consistently spend more time with him, they filed a motion seeking one Saturday to Sunday weekend visit per month in addition to a weekly four-hour visit (between 4 P.M. and 8 P.M.).

The maternal grandmother protested such a rigid schedule being imposed upon her as she claimed to be the child’s “psychological parent,” thus giving her the parental autonomy and rights enjoyed by a natural or adoptive parent.  Under this argument, the maternal grandmother had the rights of an actual or adoptive parent, and the paternal grandparents could only gain custody if they could establish by a preponderance of the evidence, that their visitation is “necessary to avoid harm to the child.”  This standard would create a strong presumption in favor of parental decision making (or, in this case, grandparent decision making) and would likely have resulted in the paternal grandparents’ motion being rejected.

The paternal grandparents, on the other hand, argued that the maternal grandmother did not deserve the strong presumption afforded natural or adoptive parents.  Instead, they implored the court to adopt the standard used when no such parental decision making presumption existed: that the appropriate visitation schedule should be based on the “best interests of the child.” 

The court held that even assuming the maternal grandmother was the “psychological parent,” that only put her on a “leveled playing field in any custody or visitation dispute” with the natural parents of the child.  However, her status as “psychological parent” did not create any elevated presumption in disputes for custody and visitation rights between her and other third parties (here, the paternal grandparents).  Therefore, the court used the more lenient standard advocated by the paternal grandparents, and determined that the appropriate visitation schedule should be based on the “best interests of the child.”  Under that standard, the court affirmed the Family Part’s finding that periodic visitation by the paternal grandparents would be in the child’s best interests. 

In the end, all was not lost for the maternal grandmother, as the court did not grant the full amount of visitation time requested by the paternal grandparents. Instead, the court granted the paternal grandparents a weekend visit in July and August in addition to eight hours of visitation per month.

NO WILL? NO WAY! The importance of having a will.

If you do not have a will, your wishes for what happens to your possessions after your death may not come to pass. Even if you think you do not have a large estate, if you own a home or have other assets, it is worthwhile to do some estate planni

ng, and essential that you have a will.

Take the recent case of Margaret Flood. She had an estate of $480,000 (perhaps the value of her house). She had four children, two of whom were disabled. The government had been providing services to these children, and thus had a right to reimbursement if the children were to ever have assets of their own. Ms. Flood had wanted to shelter her children’s inheritance to protect it against taxes and other liens, so that the disabled children especially would have the benefit of what she left to them. She started down the right path – consulting an attorney and indicating a desire to have a will with the necessary provisions, specifically special needs trusts for the disabled children so that they, not the government, would get the inheritance. Unfortunately, she did not execute a will before she passed away.

Upon her death, the estate’s administrator filed an action to establish the trusts, asserting that this had been Ms. Flood’s intent. Absent these trusts, the money would have gone directly to each of the children, and the government would have a legitimate claim for reimbursement from the disabled children. That is because if a person dies without a will, the estate is distributed strictly according to a method set forth in the law. The trial court allowed the trusts to be established, citing the legal doctrine of probable intent, which allows for the intent of the testator (the person who made the will) to be carried out.

But the Appellate Division reversed. If the words of a will seem to imply one thing, but it is proved that the testator really meant for something else to happen, the court does have the power to modify the will so that the intent of the deceased is honored. But here, there was no will to be modified. If a person does not even have a will, then their pre-death intent doesn’t count. So, the children inherited directly with no trusts, and the inheritance was not protected.

The old saying is true: if there’s a will, there’s a way. Make sure you have a will and that it is up to date.

LIKE A BAD NEIGHBOR – The Duty To Warn

When your conduct puts someone else in danger, you may be held responsible if that person is injured. That’s an easy concept to understand when the facts are simple, such as the person who drives negligently and causes injury to a pedestr

ian or a passenger. Sometimes, it’s up to the court to sort it out.

As alleged in a recent lawsuit, Jean Robert Vertus ran a financial business from his second floor apartment in Irvington, NJ. It was a dangerous area, and he had already been robbed once. Around 5:00 p.m., he noticed a departing customer acting strangely, and suspected something was going on. He ducked out of a side exit, and proceeded to the home of people he knew three buildings down, Mr. Novaly and Mr. St. Louis. He told them “something” was going on in his apartment. He did not ask them to call “911” because he claims he did not know exactly what was going on. He did ask them to call his apartment, which they did, only to find that the line was busy.

Novaly and St. Louis went to investigate; Vertus stayed behind because he was scared. At no time, did he tell his neighbors that he suspected a robbery was taking place.

 Novaly’s attempt to be of assistance ended in tragedy, as he was shot and killed by the robbers outside the apartment building. His estate sued Vertus.

Vertus claimed no liability. He said that he did not force Novaly to come to his aid; Novaly assumed whatever risk there was. Not so, said the Appellate Division. Vertus’ action  of requesting assistance for what he knew (or at least strongly suspected) was a dangerous condition put Novaly at risk. This was compounded by Vertus’ failure to adequately explain the situation to Novaly. Had Novaly known that there was a robbery taking place, he might not have been so willing to investigate. It is likely he may have called “911” and waited for the police to handle it.

Every citizen has a duty to refrain from exposing others to foreseeable criminal or negligent acts of others. Vertus had a responsibility not to let Novaly expose himself to danger without fully informing him of what he was walking into.

 

ARE YOU MY MOTHER? Adoption and Surrogate Parents

What are the parental rights of a woman who is having someone else bear and give birth to a child? It depends on the specific facts of the case, as recently demonstrated in a case decided by the New Jersey Appellate Division.

Here are the players in this drama, and their story:  We start with Husband and Wife – who cannot have a child together because Wife is infertile.  So, they take Husband’s sperm and have an in vitro fertilization with the ovum of an anonymous Donor. The embryo created by this process is then placed in the uterus of a different female, with whom Husband and Wife have signed a contract for that person to be the Carrier of the fetus until birth. Thus, everyone has some biological relationship to the child except the Wife.

Before the birth of the child, Husband and Wife went to get a court order directing that they be listed as the parents on the birth certificate when the child was born. The Carrier voluntarily consented to this request, and agreed to relinquish any rights she may have had to the child. The judge granted the request; however, since the law requires that the Carrier cannot relinquish her parental rights until at least 72 hours after the birth of the child, the court’s order was made effective only 72 hours after the birth and only if the Carrier did relinquish her rights.

Into the picture steps the State Registrar, the agency that has the legal obligation to correctly record birth certificates. Not so fast, the Registrar says. The New Jersey Parentage Act does not permit a pre-birth declaration of parentage in these circumstances – where there is no actual relationship between Wife and the child. The application can only be made after birth because of the 72 hour waiting period. Wife cannot be presumed or declared to be the Mother prior to birth.

But that’s unfair and unconstitutional says the Wife. After all, the same Parentage Act presumes that a husband is the father of the child that his wife has borne. Shouldn’t she be presumed to be the mother of the child her husband has fathered?

“No” said the Appellate Division. First, the law is clear that the Carrier (the birth mother) has to be given the 72 hour period in which to decide to relinquish her rights. Also, declaring Wife to be the mother at the time of birth would simply be inaccurate. There are three ways by which someone can legally be a parent: (1) genetic contribution (providing the sperm or the egg); (2) actually giving birth to the child; (3)adoption.  Husband fits category (1), but Wife only had category (3) – adoption – available to her. She therefore would have to formally adopt the child. The situation would have been different if Wife had actually carried the child to birth, even if she did not provide the egg.

Her constitutional argument was also rejected. The Appellate Division said there is nothing unfair about the statute. If the Husband fathers a child by a woman who is not his wife, the presumption does not apply. Nor is an infertile husband presumed to be the father of a fertile wife.  There is nothing unfair or unconstitutional when the law reflects the actual facts.

The story will have a happy ending, though, even if the Wife does have to go through the formal adoption process. Adoption establishes the same relationships, rights and responsibilities between the child and the adoptive parent as if the child had actually been born to the adoptive parent.

Looks like the Law got this one right. The rights of all the parties, including the birth mother, were protected, and the intentions of all the parties — that Wife be the mother — will be honored.

 

THE “F” ON YOUR DRUG TEST IS FOR “FIRED!” – Mandatory Random Drug Testing at the Workplace

Can an employee who claims his job is nothing more than a “weed-whacker” be required to undergo mandatory random drug testing, and be fired if he fails? The Third Circuit recently said:”Yes.”

David Mollo worked for

the Passaic Valley Sewerage Commission (“PVSC”). Based on anonymous, verbal reports of drug and alcohol abuse among its employees, the PVSC instituted a policy of random drug testing of employees whose work was deemed to be “safety sensitive.” Mollo was considered to be such an employee. Upon acknowledging receipt of the company’s new policy, Mollo was tested and was found to be positive for marijuana, cocaine, and PCP. He was suspended from work and elected to sign a stipulation admitting guilt, at which point he was allowed to return to work on a probationary basis provided that he enter a treatment program sponsored by his employer. The stipulation provided that a subsequent test showing the presence of drugs would result in his termination. He returned to work after his suspension, was tested again at which time he tested positive for cocaine. Not surprisingly, he was terminated from his position.

Mollo challenged this termination claiming that the initial testing without any suspicion that he was using drugs violated his rights under the United States and the New Jersey Constitutions to be free from unreasonable search and seizure. He challenged his employer’s classification of his work as being “safety sensitive.” He lost these challenges.

There is no doubt that an unwarranted drug test can amount to an unreasonable search and seizure, which is prohibited by the federal and state constitutions. But, where the safety concerns are legitimate, and the employer is subject to close government supervision, the employee has a diminished expectation of privacy. The right and necessity of mandatory drug testing is obvious for professions such as policemen, firemen and the like. But is the same true for a “weed whacker?”

The court found that Mollo’s job duties included more than just “wee whacking” – he was responsible for landscaping, and snow removal duties and was required to use vehicles and motorized equipment as well as to be available for work on a 24-hour basis. He worked all around the PVSC plant where there were many potentially dangerous machines, chemicals and other situations. Accidents could easily cause injury or death, significant damage to the plant, or service interruption to the over 1 million customers of the water treatment facility. Despite his protestations, Mollo’s job was “safety sensitive.” The concerns of the employer were found to be legitimate and the protocols for testing were found to be minimally intrusive. Hence, PVSC have the right to require testing, and had the right to terminate Mollo upon his failing the drug tests.

It is becoming increasingly easier for employers to require drug testing. There may be instances, however, where such drug testing does violate a person’s civil rights. A lawyer with experience in this area would be a good person to consult. To avoid this problem altogether: Don’t Do Drugs!

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THE KIDS ARE FIGHTING – WHO PAYS? Insurance Coverage for Schoolyard Brawls.

When will insurance pay for injuries if two students get into a fight? Keep in mind that there is usually no coverage when injury is expected or intended by the insured person who causes injury. This is called the “intentional acts&rdq

uo; exclusion. Here are two scenarios that illustrate what is often a fine line between coverage and no coverage.

Scenario 1: Jim, 14 years old, is a bully. He has been teasing Mark, 13 years old, and challenges him to a fight after school. To prove he is not a “wuss,” Mark accepts the challenge. During the course of the ensuing fight, Mark pushes Jim, and Jim breaks his leg as a result. Jim sues Mark for damages. Will Mark’s insurance company cover him?

Scenario 2: Tara and Morgan, both 17 year old girls, have been verbally sparring over a boy for a while. One day, Tara says something to Morgan in class. Morgan responds that Tara should sit down, or she will punch her in the face. When Tara doesn’t sit down, Morgan follows through by punching her several times. Morgan then has to be pulled off Tara, as Morgan continues to pummel and kick Tara. When Tara sues Morgan for her injuries, is Morgan’s insurance company required to pay?

The answers: Insurance pays in Scenario 1, but not in Scenario 2. In the first case, Mark was found not to have entered the situation with intent to injure Jim, but rather with nothing more than intent to cause passing discomfort. On the other hand, when Morgan began to hit Tara, she could have had no intention other than causing bodily harm. She did not have to have intent to cause the specific harm ultimately suffered by Tara; as long as harm was intended or substantially certain, the intentional act exclusion applies.

These situations are always fact specific. While the law may seem clear, it is often difficult to apply it to different facts. For example, the outcome in Scenario #2 above might have been different if Tara used certain provocative, racially offensive, or other demeaning words in taunting or insulting Morgan.

That’s why it’s good to consult an attorney. Even better to not get into such situations in the first place!

A PICTURE IS WORTH 1,000 WORDS – AND $1. The price of Tresspass.

Like most people, you have probably used Google Maps, and perhaps have seen a photo of your home on the Street View service. What are your privacy rights related to Google, or others, taking that picture and making it available on the internet?canadian pharmacy cialis

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A couple near Pittsburg, Aaron and Christine Boring, filed a lawsuit against Google when they discovered that Google had put a photo of the Boring residence on its Street View map. The Borings contended that Google could have taken the photo only if Google’s photographer had traveled on a private road that led to the Boring’s residence.  Mr. and Mrs. Boring’s claims, which were eventually heard in Federal Court, were for invasion of privacy, trespass, unjust enrichment, and damages including punitive damages.

The trial court threw out all of the claims. The Borings appealed. The Court of Appeals upheld the dismissal for all of the counts except that of Trespass.

Generally speaking, Trespass is an unprivileged, intentional intrusion by one person upon land which is in possession of another person. The person who intentionally enters land in the possession of another is subject to liability to the owner for a Trespass, even though his presence on the land causes no harm to either the land or to the owner. If the owner can prove an amount of actual damages, he is entitled to recover that; if not, he may be entitled to recover what is called “nominal” damages – usually an insignificant sum such as one dollar.

The Court of Appeals ruled that the Borings should have the opportunity to prove that Google actually trespassed on their land. If so, the Borings would be entitled to whatever damages they could prove, even if it were nominal damages.

After the litigation was returned to the trial court, the parties engaged in settlement discussions with the assistance of the trial judge. The matter settled shortly thereafter when Google acknowledged that it had trespassed, and the parties agreed to a judgment in the amount of one dollar. Both sides claimed satisfaction. Google released a statement saying: “We are pleased that this lawsuit has finally ended with plaintiffs’ acknowledgment that they are entitled to only $1.” The Borings claimed satisfaction with the vindication of their claim for Trespass. There was no report on the amount money or time spent to achieve this result.

Was this folly, or was it principle triumphing over principal?