Monday, November 22, 2010

A Resurgence of Prohibition?

You may have heard that alcohol-containing energy drinks have been banned by the FDA.  If you haven't, check out this story and this page from the FDA.  The FDA sent out warning letters to the manufacturers of those drinks, but did not direct those letters to the manufacturers of alcoholic beverages that only contain caffeine as a natural constituent of one or more of their ingredients, such as coffee flavoring.  Whatever may be your opinion of the FDA's ban and its choice to step in and "protect" from themselves citizens who are legally old enough to drink, at least they made the distinction between these energy drinks they deemed "dangerous" and regular alcoholic beverages that happen to have some caffeine.

NJ is not making the same distinction.  Bergen County Assemblywoman Valerie Vainieri Huttle, of Englewood, has proposed a new bit of legislation, Bill A3437.  The bill has been co-sponsored by Assemblyman Ralph R. Caputo, of Belleville.

The new proposed legislation states, "No person shall knowingly sell, offer for sale, deliver, receive, or purchase for resale in this State any caffeinated alcoholic beverage.  A person who violates the provisions of this section shall be liable to a civil penalty of not less than $250 for the first violation, not less than $500 for the second violation, and $1,000 for the third and each subsequent violation."

That doesn't sound terrible, until you read this:  "A caffeinated alcoholic beverage is defined in the bill as any prepackaged alcoholic beverage that has been supplemented by the manufacturer with added caffeine or other stimulant that is metabolized by the body as caffeine."

That doesn't just encompass the energy drinks containing alcohol, which the FDA has deemed dangerous.  That arguably encompasses every beer made with coffee or chocolate.  Young's Double Chocolate Stout, for instance.  My own husband brews a rather delicious stout, made with Ghirardelli cocoa powder.  It may very well include Godiva and Starbucks liqueurs.

Should you wish to voice your opinion regarding this piece of legislation, you can find your legislators here, listed by municipality.

There have been some grumblings that this is the beginning of a new era of Prohibition, which, as we know, was a bad idea the first time around, in 1919.  Is it?  I tend to veer away from an alarmist attitude, but there's no denying the similarity of these new laws to those in the 1600s - 1800s that led to "The Noble Experiment."  Even then, the original laws were on the state level, and it wasn't until the anti-alcohol political parties and lobbies gained more power on the local level in the early 1900s that the 18th Amendment prohibiting the production, sale, and consumption of alcohol on a national level was passed.

Could it happen again?

If you don't think so, you should wonder why this bill has been proposed.  Note that there's another bill still pending in the NJ Assembly, one proposed prior to Ms. Huttle's bill.  The first one, proposed by Assemblywoman Mary Pat Angelini of Wall Township, is A3402, which mirrors the FDA ban and specifies, "No holder of a license issued pursuant to 24 R.S.33:1-11 or R.S.33:1-12 shall knowingly sell, or offer for sale 25 any alcoholic energy drink."

Why, if this piece of legislation was already proposed and in the works, did Ms. Huttle feel the need to put forth her version?  Why indeed, unless it's intended as a real move toward prohibition.

Do you think it's coming?

Tuesday, June 15, 2010

Motor Vehicle Commission and Surcharge Debt - Incentive Program

The MVC (formerly DMV) has announced today the creation of an MVC Surcharge Payment Incentive Pogram.  The program will run from today, June 15, 2010, though July 30, 2010, and is designed to help MVC customers in judgment address their surcharges.

It's a vicious cycle.  If you don't pay the debt, you can't reinstate your drivers' license, but without the license, you can't legally drive to work to make the money to pay the debt.

This program is designed to wipe the slate clean or help those in judgment to arrange for more affordable payments and have their driving privileges restored.  Drivers eligible for this program include those who have been placed in judgment for failing to make surcharge payments or those in judgment who have already arranged a payment plan but are having difficulties making the payments.  Drivers with outstanding surcharges related to DUI or DWI convictions are not eligible for the incentive program.

There are approximately 273,000 drivers eligible for the incentive program.  Examples of the incentives being offered are longer payment plans and interest waivers.

Drivers who receive a personalized letter need to contact the specific collection firm noted on the letter.

For more information, drivers with surcharge debt should visit the MVC website.

Tuesday, June 1, 2010

Seat Belts - Be sure to wear them!

New Jersey's seat belt law has changed yet again, effective immediately.  Under N.J.S.A. 39:3-76.2(f) and (g), all occupants of a passenger automobile, including adults sitting in the back seat of the vehicle, must be wearing a seat belt while the vehicle is in operation.

[Note:  In NJ, "operation" means once the key has been turned in the ignition, even when the vehicle is not in motion.]

There are a few exceptions to this statute including for vehicles manufactured prior to July 1, 1966; people who have doctors' notes explaining that they cannot wear seat belts for medical reasons, passenger automobiles that aren't required to have seat belts under federal law, and passenger automobiles originally constructed with fewer seat belts than seats.

A new accompanying statute, N.J.S.A. 39:3-76.2(n), establishes this new provision as a "secondary statute" under New Jersey traffic law.  The statute shall only be enforced, therefore, when the driver has been detained for some other suspected violation of law.

Each rear seat passenger in violation of the new statute who is over the age of eighteen shall be responsible for any fine imposed for his or her failure to wear a seat belt.

Tuesday, May 18, 2010

DWI Changes: An Update

In January, I posted a discussion of State v. Ciancaglini here, regarding the sentencing changes in the DWI and refusal laws.

Because the decision in Ciancaglini differed so markedly from prior court decisions, it has created confusion in the courts and defense bar.  Therefore, on May 7, 2010, the New Jersey Supreme Court granted certiorari, and will be reviewing the Appellate Division's decision.  Oral argument has not yet been scheduled.

Wednesday, May 12, 2010

Revoked List: Law Repealed

Effective January 16, 2010, the legislature has repealed the provision of N.J.S.A. 39:40(g) which required a fine of $3,000 to be paid to the Motor Vehicle Commission when the underlying reason for the defendant's license suspension came from a failure to pay timely insurance surcharges.

This sentencing enhancement was imposed in addition to all other penalties and was collected by the MVC.  The penalty was automatically reduced to a judgment against the defendant until paid in full.

Defendants who were assessed this fine since January 16th of this year should make an application for sentence reconsideration pursuant to New Jersey Court Rule 7:9-4.

What does this mean?

Previously, if you were found guilty of or plead guilty to driving while suspended, and the suspension had occurred because you owed insurance surcharges, you were automatically assessed this extra $3,000 penalty.  That part of the law has been repealed, so any instances of this after January 16, 2010, should be altered to comport with the statute as it now reads.

It won't be automatically reversed, so you need to make an application to the court.  Be sure to contact your attorney for help.

Also, follow up with the Motor Vehicle Commission and the credit reporting bureaus to ensure that the judgment will not show up on your credit history.

Why is Divorce Expensive?

I just spoke with a friend this morning whose parents divorced several years ago, and she relayed a joke her father told her:

Why is divorce so expensive?
Because it's worth it!

It is funny; the truth often is.  He's right, generally speaking.  Once a couple has exhausted all other avenues of recourse and still comes to the conclusion that it's time to end the marriage, then the divorce is worth it, even though it is indeed an expensive endeavor.  In the end, if things can be handled well by the parties involved, everyone is better off for it, the couple, their families, their children.  Living apart can be better than living in strife.  Many, many years ago I had a friend whose parents actually became best friends after they divorced.  Now, that's not typical, of course, but it's an indication of how much better off they were once the stresses of the relationship were removed.

But what makes a divorce so expensive?

Ah, that's what you really want to know, isn't it?  Why is it so expensive?  There are a lot of factors involved.

We as attorneys cannot ethically do a divorce on a contingency basis the way we can a personal injury matter.  That means we're not actually allowed to let you pay us based on how much money you get out of the settlement or trial.  We're directed by the rules of ethics to charge an hourly rate.  There's your first factor: your attorney's hourly rate.  Generally speaking, hourly fees are commensurate with experience and expertise.  That's not to say that a new young lawyer with a lower rate isn't a terrific attorney; they absolutely can be.  Just do your research before choosing an attorney.  As much as it may hurt, it's better to base your decision on referrals from other pleased clients and your own comfort level with the attorney than on the fees alone.  In the end, a good attorney could save you thousands down the road.

Another factor is the extent of complications present in your life.  A divorce involving a custody dispute is necessarily more expensive than one in which the parties agree on custody and visitation or one that doesn't involve children at all.  A divorce with two W-2 wage earners is less expensive than one in which a business owner is involved and the business needs to be evaluated for equitable distribution.

The other factors, though, are more difficult to anticipate.

One is the attorney your spouse chooses.  If the attorneys can work well together to reach a settlement beneficial to both parties, your divorce will be less expensive than if one party chooses an attorney who is overly litigious, gives bad advice to his client, or is simply unfamiliar with the law.

And the rest is up to you and your spouse.  The expense of a divorce depends heavily on how much you are willing to compromise.  To keep it as inexpensive as possible, determine from the outset what is most important to you and what is least important.  Tell your attorney these things, so that he or she can strategize accordingly.

My experience has run the gamut, from the least expensive divorce that was completed in two court appearances to the most expensive that involved a full three-week trial, domestic violence hearings, several arrests and the resulting municipal court appearances, expert witnesses, business evaluations, and involvement with children's services.

An anecdote:

Very early in my career, when I was just a few months out of my clerkship, I was handed a file by my boss.  The case was near the end, and I appeared in court with our client at a settlement conference at which we settled every issue... except one.  It was a bill from the parties' accountant, for $500.  At the time, my boss was billing my time at $125/hour, so four hours of my time would total the same $500.  My client, the marriage's breadwinner, was adamant that he would not pay it.  His wife honestly didn't have the money to pay it herself.  It was marital debt.  While I will never permit my client to buckle under on an issue when I think he's wrong to do so and I think he's being unfair to himself, in this instance my advice was to just pay the bill and cut his losses.  He refused.  He'd rather pay me than the bill.  It was only when my boss, an experienced attorney who'd been practicing more than 50 years, agreed with me, that our client finally agreed.

A stance like that is what will make your divorce most exorbitant.  If it's something worth fighting for, like your children, by all means fight.  Just choose your battles wisely.  Not all divorces have to be exceptionally expensive.  The ones that are should be the ones that are worth it.

Monday, March 29, 2010

Control and Domestic Violence

An interesting discussion arose recently when a woman posed a question about dealing with her fiance's behavior.  She called him "jealous."  What most of us saw in her description, even those who'd never had experience with domestic violence, was control.  That's what domestic violence is about, after all.  It doesn't occur because someone likes to hit people; it occurs because someone wants to control someone else.  It's not just a loss of temper, either.  Most abusers aren't going around beating up their bosses.  Oh, no, they save it for those closest to them - their significant others, their children, sometimes even their parents, especially if the parents are elderly.  People they can control.

Since it's about control, domestic violence isn't always physical.  It can be more insidious than that, mental and emotional abuse that can do more damage than a slap to the face.

In the case of this woman who posed the question about her fiance, she described him as someone who's "always been very jealous."  This man, who she says makes her feel like the most important person in the world, forces her to tell him if she thinks that anyone else besides him is attractive.  He used to ask her if she'd "been being good."  Her fiance won't go to therapy regarding his issues, because he "doesn't believe in it."  He tried it once before and "said it didn't work."  He has called her "whorish."  In the past, when she found someone attractive, he got angry at her and yelled at her.  Most recently, he "got sad" when she found someone else attractive.

His jealousy frustrates her, and this is her response:  "I know that what I'm doing seems wrong and I've volunteered to go to counseling... I don't often think of other men and [my fiance and I] spend almost every minute we don't work together."  Still, the issue flares up every month or so.

Meanwhile, she moved out of her parents' house a year ago because her mom was reading her texts, thereby finding out that she was sexually active at age 20.  This, she deemed "extremely abusive."  Even though her parents insisted that they would not try to break up the couple, this woman was "sure they would have."  Later, the woman says that she told her fiance she left her family and moved to another state "for him."  She's told him she's given him everything she has.  Without her parents' support, she's had to leave school and works two jobs while her fiance completes his degree and works one job.

She believes they'd have no place to go if they broke up.

This is textbook stuff.  I've been working with victims of domestic violence since 1989, and these are the red flags I see:

First, abusers will cut their victims off from their friends and family.  They will convince the victims that their families hate them and won't accept them back, they convince them that their families are conspiring against them.  They make themselves their victims' sole support system.  They take the victims out of school - an education is dangerous.  They stunt their victims' educations and careers to make them more dependent on the abusers.

Then, the control.  This guy wanted to know all of his fiancee's thoughts and punish her for them.  He made her feel wrong for having perfectly normal thoughts.  He has her believing she's somehow evil for looking at or even thinking about another man.  He has made her  uncomfortable in her own skin and has her believing there is something wrong with her; enough that she's willing to go to counseling to fix herself for him.

The name-calling.  And she accepts it as deserved.

The end result is that the victim comes to believe that she needs her abuser and has nowhere to go.  She thinks her family won't take her back.  She has no friends.  Her education is incomplete and her career stunted.  Plus, her brain doesn't work properly and she's a whore.  She needs him.  He's got her trapped.  The thing is, he's got her trapped with lies.  She could go back to her family, to a friend, to a shelter.  She could leave and get out... before getting married, before kids, before it becomes more difficult.

If you are this girl, get out.  If you were this girl, and now you're married, now there are kids, now it's more difficult... get out anyway.  It's never too late.  I once met a woman in her 70s who'd been married for 50 years to an abusive husband before she finally got up the courage and scavenged enough dropped change from the couch cushions to take the bus to the courthouse and file a complaint for domestic violence.

If she can, you can.

If you are a victim of domestic violence, get help.  Call the National Domestic Violence Hotline at 1-800-799-SAFE (7233) or TTY at 1-800-787-3224.
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