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.

Saturday, January 16, 2010

New Interlock Law for DWI

A revision, dubbed "Ricci's Law," to the current DWI statute revises ignition interlock device requirements for certain offenders.  This law has passed the legislature and is awaiting the signature of Governor Corzine.

Ricci Branca was a south Jersey teen who was riding his bicycle with friends when he was struck and killed by a drunk driver.  Two of the other cyclists were injured.  The drunk driver, who'd had at least 10 drinks before getting behind the wheel and who had a BAC of over .30, is now serving a 16-year sentence for aggravated manslaughter and related charges.

An ignition interlock device is a mechanism installed into a vehicle's dashboard.  It works like a breathalyzer, and prevents the vehicle from starting if a BAC (blood alcohol concentration), usually between .02 and .04 is registered.  Many studies have shown that interlock devices assist to prevent drunk driving and are effective in combating repeat offenses of DWI.  I am not going to dispute those studies, although the device is not foolproof and requires maintenance.

The DWI statute in NJ, as it stands now, provides that a judge may order the installation of an ignition interlock device for six to twelve months for first offenses.  For second, third, and subsequent offenses, judges must order the installation of an interlock device for one to three years or suspend all license plates and registration certificates for two years (for a second offense) or ten years (for a third or subsequent offense).

Those registration suspensions run concurrently with the required license suspension of the offender; two years for a second offense, and ten years for a third, and affect only vehicles owned by the defendant or registered to him.  They are a current alternative to the installation of the interlock device.

With the revision, the bottom first-offense tier would not be altered.  A person convicted of DWI with a BAC of at least .08 but less than .10 would be subject to the same penalties as previously.

However, a first-offense DWI conviction with a BAC of .10 or higher would now require the installation of an interlock device in the vehicle principally operated by the offender, no matter who the owner.*  The installation would be required for six to twelve months after the period of drivers license suspension expires.

A first-offence DWI conviction with a BAC of .15 or higher has the same requirement, except that the installation must occur during the period of license suspension and extend six to twelve months thereafter.

For a second DWI conviction, the judge's option to suspend a person's registration for two years concurrent with the required license suspension would be eliminated, and the interlock installation during the two-year period of license suspension and for one to three years thereafter would be required.

For a third DWI conviction, the judge's option to suspend a person's registration for ten years concurrent with the required license suspension would be eliminated, and the interlock installation for the ten-year period of suspension and for one to three years thereafter would be mandatory.

Note:  This new interlock requirement will also apply to convictions for refusal to submit to a breath test.

*This means that if a vehicle you own and which is registered to you and used by you is also the principal vehicle of your spouse, parent, child, sibling, roommate, friend, partner, girlfriend, or boyfriend your vehicle will require the installation of the device and you will be required to use the device to start your ignition for the entirety of the period of installation, anywhere from six months to thirteen years.  Be careful!  This means that the vehicle may not start if you (the non-offender owner or driver of the vehicle) are using it and have a glass of wine or a beer with dinner.  These interlock devices are sensitive and will also register a BAC if you have recently (within the past 15-20 minutes) used mouthwash or a breath spray containing alcohol.

Saturday, January 9, 2010

DWI, Refusal, and New Sentencing Problem

State v. Ciancaglini, January 7, 2010 - A discussion
[Full text of the decision here.]

The facts in brief:  The defendant was stopped for traffic offenses in May of 2008.  After breathalyzer testing showed a blood alcohol level of 0.17%, she pleaded guilty to DWI in September of 2008.

The defendant had a prior DWI conviction from 1979 and a conviction for refusal to take a breathalyzer test in 2006.

The municipal court sentenced the defendant as a third-time offender, subjecting her to six months in jail, a fine of $1,006, ten-year loss of her driver's license and vehicle registration, and other penalties.  She filed an appeal with the Law Division of the Superior Court, which decided that the 2006 refusal conviction could not be considered the same as a prior DWI conviction.  Because the 1979 conviction was more than ten yares earlier, the statute called for the defendant to be sentenced as a first-time offender under the DWI statute.  She was sentenced to thirty days in jail, a $500 fine, and a one-year suspension of her driver's license, plus the other requisite penalties.

At this time, the defendant has already served the thirty-day jail sentence.

The issues:  Can a defendant with a prior conviction for refusing to take a breathalyzer be subjected to the enhanced penalties facing a multiple-offender when she is later convicted of driving while intoxicated?  Does the right against double jeopardy prohibit the imposition of an increased sentence where the defendant has already served the lesser sentence?

The court's holidng:  Previously, the Appellate Division had held that a conviction for refusal would not count as a prior offense with regard to sentencing for later DWI convictions and would not result in enhanced penalties.

The sentence for a refusal to submit to a breath test is essentially the same as the sentence for DWI itself.  You should know that if you are convicted of both refusal and DWI as a result of a single traffic stop, those two charges and sentences are no longer merged; you can be convicted of both and are subject to both sentences.

While I do understand and support the State's interest in removing drunk drivers from the streets, and I do understand the frustration of law enforcement officials when a suspect refuses a breath test when there is suspected DWI, I have some issues with the penalties for refusal.  On the one hand, the law says that an intoxicated person is incapable of taking marital vows, entering into a contract, entering into a divorce property settlement agreement, or taking a number of other actions.  On the other hand, the traffic code holds allegedly intoxicated people responsible, with severe penalties, for a decision made (refusal) during the state of intoxication.

While conviction under the refusal statute does not result in a period of incarceration, the fines and license suspension periods are parallel to those for DWI and increase comparably with convictions subsequent to a first offense of either refusal or DWI.

Previously, the Appellate Division treated refusal as a civil-type offense, holding that the standard of proof was merely a "preponderance of the evidence," rather than the stricter "beyond a reasonable doubt" afforded criminal cases.  However, that was rejected by the NJ Supreme court, which determined that the offense was quasi-criminal in nature, requiring proof beyond a reasonable doubt and affording it the protection of the bar against double jeopardy.

For these reasons, because a DWI conviction enhances penalties for a subsequent refusal, and because refusal is now treated as a quasi-criminal charge rather than civil, the Appellate Division has now determined that the refusal offense and DWI offense are interchangeable enough that a conviction for refusal counts as a "prior conviction" when calculating whether a subsequent DWI is a first, second, or third offense for sentencing purposes.

Therefore, the defendant's September 2008 conviction for DWI was her third offense.

The guarantee against double jeopardy prohibits multiple sentences for the same offense, but does not permit a defendant to serve only a lesser sentence imposed based upon an error of law.

Although the reduced sentence imposed by the Law Division was not an illegal sentence based upon an error of law, because it was imposed based upon a prior decision of the Appellate Division, the court stated that it need not address the double jeopardy issue in this case.  The Law Division's sentence was not the only sentence imposed, and defendant's double jeopardy rights are not violated by the return to an original sentence imposed by the municipal court and mistakenly decreased by the Law Division.

Because the sentence reduction was based upon a finding of law, not facts, by an intermediate court after defendant's appeal, defendant also did not have an expectation of finality regarding the reduced sentence.

The end result:  The matter was remanded to the Law Division for the imposition of the original sentence imposed by the municipal court.  The defendant will have to serve the remainder of the six months in jail, lose her license and vehicle registration for ten years, and pay enhanced fines and penalties according to her third-time offender status.

What does all of this mean to you?  If you are convicted of refusal to submit to a breath test pursuant to a DWI stop, and later are convicted of a DWI, even if you are not convicted of DWI at the time of the refusal conviction, and even if a first DWI is never proven or admitted in any court, the later DWI conviction will be treated as a second or subsequent offense for sentencing purposes.

This may seem unjust, and I agree.  You can be sentenced as a second or third offender without first been convicted of an initial DWI.

The smartest thing?  Do not refuse a breath test.  In fifteen years of doing defense work, I have never seen it help anyone's case, only increase the number of charges they are facing and make their lives more difficult.
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