Monday, December 30, 2013

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


 NOTICE TO THE BAR 
TELEPHONIC REQUESTS FOR SEARCH WARRANTS FOR BLOOD TESTS IN DRIVING WHILE INTOXICATED (DWI) CASES (MISSOURI V. MCNEELY) -- RULE RELAXATION 
The attached October 8, 2013 New Jersey Supreme Court order addresses the process for telephonic requests for search warrants for nonconsensual blood tests in certain DWI cases and is in response to the decision of the United States Supreme Court in Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 185 L.Ed. 2d 696 (2013). The order has a December 1, 2013 effective date. 
In McNeely, the United States Supreme Court held “that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” 185 L.Ed.2d at 715. Further, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 709. 
The New Jersey Supreme Court order published with this notice relaxes and supplements the Part III (Criminal) and Part VII (Municipal Court) Rules so as to authorize certain Municipal Court judges to issue search warrants for nonconsensual blood testing in all driving while intoxicated (DWI) cases where no indictable charge is anticipated, with the Assignment Judge to designate either all of the Municipal Court judges in the county to have this authority or just particular specified judges. Such authorization is not limited to evening or weekend hours. Further, the search warrant may be issued in this limited category of cases by a designated Municipal Court judge in person or by telephone, radio or other means of electronic communication upon sworn oral testimony of a law enforcement officer or prosecuting attorney communicated to the issuing judge, pursuant to the procedures outlined in R. 3:5-3(a) and (b). Superior Court judges will handle search warrants for blood tests in those DWI cases where an indictable charge is anticipated. The Supreme Court order does not affect any current procedures for Municipal Court judges to issue in-person search warrants for other matters. 
In accordance with the Supreme Court’s holding in State v. Pena-Flores, 198 N.J. 6 (2009), the attached Order also removes the requirement in R. 3:5-3(b) that exigent circumstances must exist in order to issue search warrants by telephone, radio or other means of electronic communication. 
Further, the Order also asks the Supreme Court Criminal Practice Committee and Municipal Court Practice Committee to consider and make recommendations regarding the scope of authority for Municipal Court judges to issue telephonic search warrants in all cases. 
/s/ Glenn A. Grant 
_____________________________ 
Glenn A. Grant, J.A.D. Acting Administrative Director of the Courts 
Dated: November 14, 2013
SUPREME COURT OF NEW JERSEY 
It is ORDERED, pursuant to N.J. Const. Art. VI, sec. 2, par.3, that effective December 1, 2013 and until further order, Part III (Criminal) and Part VII (Municipal Court) of the Rules Governing the Court of the State of New Jersey are supplemented and relaxed so as to permit Municipal Court judges, as designated by the Assignment Judge, to issue search warrants for nonconsensual blood testing in all driving-while-intoxicated cases where no indictable charge is anticipated; this authorization is not limited to evening or weekend hours and such search warrants may be issued in-person or by telephone, radio or other means of electronic communication on the sworn oral testimony of a law enforcement officer or prosecuting attorney communicated to the issuing judge, pursuant to the procedures outlined in R. 3:5-3(a) and (b). 
It is FURTHER ORDERED that R. 3:5-3(b) is also specifically relaxed so as to remove the requirement that exigent circumstances must exist to issue a search warrant by telephone, radio or other means of electronic communication. 
It is FURTHER ORDERED that the Court’s Criminal Practice Committee and Municipal Court Practice Committee are asked to consider the scope of authority for Municipal Court judges to issue telephonic/electronic search warrants in all cases and to provide the Court with any proposed rule recommendations. 
For the Court, 
/s/ Stuart Rabner 
Chief Justice 

Dated: October 8, 2013

Sunday, December 29, 2013

Appeal Motion RULE 2:8. Motions; Dismissals; Summary Dispositions

Appeal Motion RULE 2:8. Motions; Dismissals; Summary Dispositions

2:8-1. Motions

  • (a) Contents; Form of Brief and Appendix. Every motion shall be accompanied by a brief, conforming either to the requirements of R. 2:6-2(a) (formal brief) or (b) (letter brief), and by an appendix and shall be in the form and reproduced as provided by R. 2:6-10. The brief shall explain clearly the nature of the action, the relief the moving party seeks and why the moving party is entitled thereto. It may, for purposes of clarity, summarize pleadings and other undisputed papers or records which do not accompany the brief. The appendix shall include the judgment or order and the opinion or statement of findings and conclusions below and, where essential, the transcript of the testimony, depositions or other discovery, pleadings or other portions of the record, including the portions thereof upon which the movant should reasonably assume the opposing party will rely. If the transcript cannot be obtained in time for the motion, an affidavit may be filed in lieu thereof giving the substance of such testimony. If the motion is opposed, the opposing party shall file an answering brief setting forth with equal explicitness the grounds of opposition, annexing an appendix containing copies of any papers relied on which are not in the moving party's appendix. On motion for leave to appeal the brief shall include argument on the merits of the issues sought to be appealed. If no opposing brief is filed the court may consider the motion unopposed. Without leave of the court, which may be applied for ex parte, supporting and answering briefs shall not exceed 25 pages, exclusive of tables of contents, table of citations and appendix.
  • (b) Time for Filing and Service; Copies; Argument. The moving party shall serve 2 copies of the moving papers on all other parties. In the Appellate Division, the original and 4 copies of the papers shall be filed with the Clerk of that court. In the Supreme Court, the original and 8 copies of the papers shall be filed with the Clerk of that court. Within 10 days after the service of the movant's papers, the opposing party shall serve and file the same number of papers in opposition. No other papers shall be filed by either party without leave of court. Motions shall not be argued unless the court directs oral argument.
  • (c) Disposition. Unless the court otherwise directs, all motions in the Appellate Division shall be decided by a single judge except that motions for bail, stay of any order or judgment, summary disposition, and leave to appeal shall be decided by a panel of at least two judges. Insofar as practicable, motions for reconsideration and motions for counsel fees for work performed in the Appellate Division shall be decided by the judges who decided the original matter.
  • (d) Order and Notice. Unless the court otherwise directs, upon determination of the motion the court or the clerk acting under its direction shall forthwith enter an order granting or denying the motion in accordance with the determination of the court and shall mail true copies thereof to counsel.
  • (e) Fees. If the motion is the first paper filed in the appellate court by the moving party it shall be accompanied by the fee required by N.J.S.A. 22A:2.

Appeal Motion RULE 2:8. Motions; Dismissals; Summary Dispositions

Appeal Motion RULE 2:8. Motions; Dismissals; Summary Dispositions

2:8-1. Motions

  • (a) Contents; Form of Brief and Appendix. Every motion shall be accompanied by a brief, conforming either to the requirements of R. 2:6-2(a) (formal brief) or (b) (letter brief), and by an appendix and shall be in the form and reproduced as provided by R. 2:6-10. The brief shall explain clearly the nature of the action, the relief the moving party seeks and why the moving party is entitled thereto. It may, for purposes of clarity, summarize pleadings and other undisputed papers or records which do not accompany the brief. The appendix shall include the judgment or order and the opinion or statement of findings and conclusions below and, where essential, the transcript of the testimony, depositions or other discovery, pleadings or other portions of the record, including the portions thereof upon which the movant should reasonably assume the opposing party will rely. If the transcript cannot be obtained in time for the motion, an affidavit may be filed in lieu thereof giving the substance of such testimony. If the motion is opposed, the opposing party shall file an answering brief setting forth with equal explicitness the grounds of opposition, annexing an appendix containing copies of any papers relied on which are not in the moving party's appendix. On motion for leave to appeal the brief shall include argument on the merits of the issues sought to be appealed. If no opposing brief is filed the court may consider the motion unopposed. Without leave of the court, which may be applied for ex parte, supporting and answering briefs shall not exceed 25 pages, exclusive of tables of contents, table of citations and appendix.
  • (b) Time for Filing and Service; Copies; Argument. The moving party shall serve 2 copies of the moving papers on all other parties. In the Appellate Division, the original and 4 copies of the papers shall be filed with the Clerk of that court. In the Supreme Court, the original and 8 copies of the papers shall be filed with the Clerk of that court. Within 10 days after the service of the movant's papers, the opposing party shall serve and file the same number of papers in opposition. No other papers shall be filed by either party without leave of court. Motions shall not be argued unless the court directs oral argument.
  • (c) Disposition. Unless the court otherwise directs, all motions in the Appellate Division shall be decided by a single judge except that motions for bail, stay of any order or judgment, summary disposition, and leave to appeal shall be decided by a panel of at least two judges. Insofar as practicable, motions for reconsideration and motions for counsel fees for work performed in the Appellate Division shall be decided by the judges who decided the original matter.
  • (d) Order and Notice. Unless the court otherwise directs, upon determination of the motion the court or the clerk acting under its direction shall forthwith enter an order granting or denying the motion in accordance with the determination of the court and shall mail true copies thereof to counsel.
  • (e) Fees. If the motion is the first paper filed in the appellate court by the moving party it shall be accompanied by the fee required by N.J.S.A. 22A:2.

RULE 2:8. Motions; Dismissals; Summary Dispositions

2:8-1. Motions

  • (a) Contents; Form of Brief and Appendix. Every motion shall be accompanied by a brief, conforming either to the requirements of R. 2:6-2(a) (formal brief) or (b) (letter brief), and by an appendix and shall be in the form and reproduced as provided by R. 2:6-10. The brief shall explain clearly the nature of the action, the relief the moving party seeks and why the moving party is entitled thereto. It may, for purposes of clarity, summarize pleadings and other undisputed papers or records which do not accompany the brief. The appendix shall include the judgment or order and the opinion or statement of findings and conclusions below and, where essential, the transcript of the testimony, depositions or other discovery, pleadings or other portions of the record, including the portions thereof upon which the movant should reasonably assume the opposing party will rely. If the transcript cannot be obtained in time for the motion, an affidavit may be filed in lieu thereof giving the substance of such testimony. If the motion is opposed, the opposing party shall file an answering brief setting forth with equal explicitness the grounds of opposition, annexing an appendix containing copies of any papers relied on which are not in the moving party's appendix. On motion for leave to appeal the brief shall include argument on the merits of the issues sought to be appealed. If no opposing brief is filed the court may consider the motion unopposed. Without leave of the court, which may be applied for ex parte, supporting and answering briefs shall not exceed 25 pages, exclusive of tables of contents, table of citations and appendix.
  • (b) Time for Filing and Service; Copies; Argument. The moving party shall serve 2 copies of the moving papers on all other parties. In the Appellate Division, the original and 4 copies of the papers shall be filed with the Clerk of that court. In the Supreme Court, the original and 8 copies of the papers shall be filed with the Clerk of that court. Within 10 days after the service of the movant's papers, the opposing party shall serve and file the same number of papers in opposition. No other papers shall be filed by either party without leave of court. Motions shall not be argued unless the court directs oral argument.
  • (c) Disposition. Unless the court otherwise directs, all motions in the Appellate Division shall be decided by a single judge except that motions for bail, stay of any order or judgment, summary disposition, and leave to appeal shall be decided by a panel of at least two judges. Insofar as practicable, motions for reconsideration and motions for counsel fees for work performed in the Appellate Division shall be decided by the judges who decided the original matter.
  • (d) Order and Notice. Unless the court otherwise directs, upon determination of the motion the court or the clerk acting under its direction shall forthwith enter an order granting or denying the motion in accordance with the determination of the court and shall mail true copies thereof to counsel.
  • (e) Fees. If the motion is the first paper filed in the appellate court by the moving party it shall be accompanied by the fee required by N.J.S.A. 22A:2.

Thursday, December 19, 2013

Offenses no expungement permitted NJ

Offenses no expungement permitted NJ


2C:52-2. Indictable Offenses.

a.In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in N.J.S.2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:

(1)less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

(2)at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

b.Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5; N.J.S. 2C:13-1 (Kidnapping); section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring  or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); N.J.S.2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, N.J.S.2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); N.J.S.2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); N.J.S.2C:24-4b(4) (Endangering the welfare of a child); N.J.S.2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); N.J.S.2C:24-4b.(5)(a) (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); N.J.S.2C:24-4b.(5)(b) (Possessing items depicting the sexual exploitation or abuse of a child); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); N.J.S.2C:34-1b.(4) (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

Saturday, December 14, 2013

2C:29-9 Contempt is either 4th degree offense or disorderly

2C:29-9 Contempt. a. A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or protective order, pursuant to section 1 of P.L.1985, c.250 (C.2C:28-5.1), or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.

b.Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.  In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.  Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this subsection.

As used in this subsection, "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.  The term includes an Indian tribe or band, or Alaskan native village, which is recognized by a federal law or formally acknowledged by a state.