Archive for May 2010

NEW JERSEY LAWYERS REVIEW RECENTLY PUBLISHED TRIAL LEVEL OPINION HOLDING THAT A CONVICTION FOR DRIVING WHILE SUSPENDED WITH THE UNDERLYING SUSPENSION DUE TO A DRUNK DRIVING CONVICTION SHALL SERVE JAIL TIME WITHOUT ANY ALTERNATIVES.

In an extremely rare decision, the Committee on Opinions of the Supreme Court of New Jersey has decided to publish an opinion of a Municipal Court Judge. In the case, the Court held that the county’s Sheriff’s Labor Assistance Program (otherwise known as SLAP) is not a sentencing option for a defendant who has been convicted and sentenced to a period of incarceration for driving on the revoked list if the underlying reason for the suspension was a drunk driving conviction. In the published opinion, the New Jersey Municipal Court judge held that only jail time is a permissible sentence under the applicable statute. SLAP and other similar programs have existed to provide defendants the opportunity to satisfy a jail term without actual incarceration in a county jail.

Legal Quote of the Week:

The court should be a place where anybody can come- whatever they have in their pocket- and be able to file a complaint in simple fashion and at least have somebody give consideration to it and give them an opportunity to be heard.

Thomas F. Curtin, American Jurist,; Judge, U.S. District Court

New York Times, October 7, 1971

NEW JERSEY LAWYERS REVIEW RECENT SUPREME COURT OF NEW JERSEY DECISION ON THE CONSTITUTIONALITY OF OPENING THE CAR DOOR AS PART OF ORDERING PASSENGERS FROM A MOTOR VEHICLE

The NJ Supreme Court has resolved a conflict between lower Appellate Division cases which called into question whether a police officer could open a car door as part of an order to the passengers to exit the vehicle. The Court has resolved the conflict in favor of allowing law enforcement to open a car door if the totality of the circumstances create a heightened sense of danger warranting the officer to secure the vehicle and the occupants in an effective manner such as opening the car door. In the case before the Court, the officer observed a gun on the floor where the passenger exited and seized the gun subsequently used as evidence against the defendant in a criminal prosecution brought by the State of New Jersey.

If the officer has already ordered the passengers to exit the vehicle, presumably there are facts which would support an objectively reasonable officer to issue the order. The same facts, presuming they exist, would likewise support the officer opening the car door. As the Court held: “In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that lawful order.”

Legal Quote of the Week:

You have put me in here [jail] a cub, but I will come out roaring like a lion, and I will make all hell howl!

Carry Nation, Carleton Beals, Cyclone Carry, c.1901

NEW JERSEY LAWYERS REVIEW APPLICATION OF THE FEDERAL SENTENCING GUIDELINES IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY SINCE THE LANDMARK DECISION BY THE UNITED STATES SUPREME COURT DECLARING THE GUIDELINES ADVISORY, NOT MANDATORY.

Several years ago the United States Supreme Court held that the United States Sentencing Guidelines are not mandatory and that United States District Judges must consider the guidelines along with other relevant factors set out by statute including the nature and circumstances of the offense and the background of the defendant. On a national scale, a sentence within the guidelines was the sentence in 56.8 of the sentences handed down in fiscal year 2009 which ended September 30, 2009. In the United States District Court for the District of New Jersey, the percentage of guideline sentences fell to 46.4 percent of the overall sentences handed down in the same time period. The United States Court of Appeals for the Third Circuit, which encompasses New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands, averaged 46 percent of sentences within the guideline range.

The Third Circuit Court of Appeals will review a sentencing determination on the grounds of reasonableness which requires a Judge to articulate the reasons for the sentence on the record during the sentencing hearing.

Legal Quote of the Week:

Constitutional rights should not be frittered away by arguments so technical and unsubstantial. The Constitution deals with substance, no shadows.

Louis D. Brandeis

Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 431 (1921)