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Criminal Law Update – March 2020

By Tamra Katcher and Joseph P. Rem, Jr.
Rem Katcher Law Group

First, apologies for the void over the past several months without the Criminal Law Update. We know there are many who have asked for it and wondered when we would be back – so here we are….

New Laws You Need to Know

As most of you know, on August 23, 2019, Governor Murphy signed into law a new and revised DWI law which became effective December 1, 2019. The law reduced or eliminated driver’s license suspensions in favor of requiring installation of an ignition interlock device, or IID, as part of the sentence for most DWI convictions. Those most impacted by the new law are first offenders with BAC readings below 0.15%. For those in this category, there is no DL suspension as long as the individual has the IID installed on his/her vehicle at the time of conviction. If the device is not installed at that time, then DL suspension is only until the client installs the device and presents a receipt to MVC to get his/her license restored. Thus, the period of license suspension is reduced to a few days as opposed to several months under the old statute. Other major changes to the statute include a new provision for those who do not own or have a car available to them; the removal of the IID requirement for first offense drug-DWI convictions; and the rescission of the school zone DWI offenses.

Importantly while some judges are denying sentencing under the new law to those arrest prior to December 2019, many more are adopting the legislative intent that this statute makes driving safer for all motorists on our highways. Case law is clear that when what seems like a clear declaration in the statute is contrary to the legislative intent, the purpose of the law must predominate over the language. And no, the Administrative Office of the Courts has no authority to dictate to judges how to interpret the statute; pesky case law to that effect.

The BCBA will be hosting a CLE on March 25, 2020 at 12pm to discuss this new law in detail. Judge Gallina, along with a panel of municipal prosecutors and defense attorneys, including yours truly, will be providing their insights thus far.

On December 20, 2019, N.J.S.A. 39:4-49.1, CDS in a Motor Vehicle was amended to remove the mandatory driver’s license suspension which previously plagued defendants charged with this offense. The DL suspension was also repealed for Conditional Discharge, N.J.S.A. 2C:36A-1; and was made discretionary for Failing to Have Liability Insurance, N.J.S.A. 39:6B-2. The bill can be found here.

Effective June 15, 2020, the expungement laws regarding certain marijuana offenses will either be treated differently or not considered at all for expungement purposes. The revised statute allows for an individual with a conviction for Distribution or Possession with Intent charges for marijuana of less than 5 pounds or a related school zone conviction or a related 500ft conviction to have that conviction considered a disorderly persons for the purpose of expungement; and, a person who has a conviction for Possession of marijuana or being under the influence of marijuana or drug paraphernalia related to marijuana that conviction cannot be considered a conviction for the purpose of expungement.

Interesting cases…

In State v. Thompson, an App. Div. decision from February 10, 2020, (approved for publication) the court set the defense bar into a tailspin as to what is considered evidence of operation for a DWI conviction. In Thompson, defendant was sleeping for approximately 30 minutes in his car with the engine running in a parking lot at a 7-11. Officers smelled alcohol when talking to defendant and defendant admitted to having a couple drinks. The court stated that “operation” should be interpreted broadly and includes more than just driving but can be found from an intent to drive. Referencing State v. Stiene, 203 N.J. Super. 275 (App. Div. 1985), the Thompson court concluded that the “possibility of motion” is what is relevant. Citing Tischio, the court concluded that to find otherwise would perpetuate the carnage on our highways at the hands of drunk drivers.

The unfortunate aspect of this opinion, for which certification is now being sought, is that drunk drivers instead of sleeping it off with the hope of not driving drunk are now going to drive. Thus, the benefit to (for lack of a better term) responsible drunk drivers to sleep it off has been lost with this opinion. For the drunk driver who realizes that he/she cannot drive and does not want to drive, he is just as much at risk of being arrested for drunk driving as the driver who side swipes parked cars as he drives home with a 0.15 BAC. The practical realities of this opinion call into question the court’s reasoning. As this case moves through the court system, we will keep you posted on any developments.

Hot off the presses…

State v. Shaw, a NJ Supreme Court decision from March 4, 2020, addressed whether there should be a limitation on the number of times the State can re-present a case to the grand jury when prior grand juries have refused to indict. Shaw holds that once a grand jury declines to indict on 2 separate occasions the State must seek leave of the Assignment Judge before presenting the case a third time. Factors to be considered by the AJ are whether there is new or additional evidence; the strength of the state’s case based on a probable cause standard; and whether there was prosecutorial misconduct during the prior presentations.


In State v. L.H., 239 N.J. 22 (2019), the Court considered whether defendant’s free will was overborne by detectives after he was read his Miranda warnings. Defendant was arrested on several sex assault charges; during the 3+ hour interrogation detectives promised defendant that he would get counseling and not go to jail if he cooperated. At the Miranda hearing, detectives admitted that whenever defendant hesitated to answer their questions, they told him about the help he was going to get and made promises of his not being incarcerated. The Court held that the state failed to prove beyond a reasonable doubt that the confession was voluntary because coercive psychological pressures were used. The Court also warned that false promises of leniency, minimizing the seriousness of defendant’s charges, and advising a defendant that statements won’t be used against him are impermissible and thus render the statement involuntary.

I have started putting quotes in my son’s lunch. I had always put a note but thought a quote would be more interesting for him to read. I recently left the following in his lunch: “Life is a tale that cannot be told.” He didn’t like it even after I explained what it meant!
Any takers on the source? The rest of the quote?

Here is another: “If you obey all the rules, you miss all the fun.” (A rule most of our clients live by)

And finally: “Making mistakes is the privilege of the active.” Ingvar Kamprad, founder of IKEA.

Until next time….