The New Jersey Police Chief Magazine | March 2022
Continued from previous page 24 . Complete covering of Garden State on plate permitted stop State v . Carter
To avoid serious constitutional concerns , the Court interprets the statute narrowly and holds that N . J . S . A . 39:3-33 requires that all markings on a license plate be legible or identifiable . If a frame conceals or obscures a marking in a way that it cannot reasonably be identified or discerned , the driver would be in violation of the law . In practice , if a registration letter or number is not legible , the statute would apply ; but if a phrase like " Garden State " is partly covered but still recognizable , there would be no violation .
In Carter ’ s case , however , it is undisputed that “ Garden State ” was entirely covered . As a result , the plate violated the statute , and law enforcement officers had the right to stop Carter . A-66-19
25 . Member of LLC can ’ t be charged with ordinance violation State v Ehrman
Defendant challenged numerous complaint-summonses issued in municipal court by the Jersey City Department of Housing , Economic Development and Commerce for municipal violations involving rental properties owned by various limited liability companies ( LLCs ) of which defendant was a member . In one appeal , defendant challenged an interlocutory order denying his motion to dismiss twenty-five complaint-summonses issued to him individually and granting the State ' s cross-motion to amend the complaints to name the LLC that was the record owner instead of him . In the other appeal , defendant challenged the order finding the LLC that was the record owner of the property guilty of violating a municipal ordinance following a trial de novo in the Law Division notwithstanding the fact that the LLC made no appearance through counsel and neither the municipal court nor the trial court inquired on the record to ascertain whether there was a knowing and voluntary waiver before proceeding with the trial .
The court reversed and remanded for entry of an order of dismissal without prejudice of the twenty-five complaint-summonses because they were issued to the wrong defendant and therefore fatally defective and both the municipal court and trial court erroneously relied on a Part IV rule governing civil practice to grant the State ' s cross-motion to amend . The court also reversed the finding of guilt of the LLC and remanded for a new trial because the absence of an appearance through counsel or a clear waiver of such in a quasi-criminal municipal court prosecution constitutes a violation of constitutional dimension requiring reversal . ( A-4144-19 / A-4447-19 ) 26 . Hearings on Drug Recognition Evaluation evidence going on now before Judge Lisa , the Supreme Court had remanded State v Olenowski to a Special Master for a Frye Hearing on the reliability and admissibility of Drug Recognition Evaluation evidence . [ DRE = Doesn ’ t Really Exist ] ( Judge Lisa w ho did Cassidy remand ) 2019
Sometimes a driver is arrested and charged with a DWI not for alcohol but being under the influence of drugs- either illegal or driving under valid prescription but being under the influence of the prescription .
Drug recognition evaluators / alleged expert ( DRE ) opinions based on drug influence evaluations ( DIEs ) are not generally accepted within the scientific community under Frye v . U . S ., 293 F . 1013 ( D . C . Cir . 1923 ).
Fellow speaker and NJSBA member John Menzel argued the matter before the court , urging the Supreme court to exclude the DIE evidence in the case and remand the matter for the development of an appropriate foundation before the evidence can be admitted . The brief was written by Menzel , Joshua H . Reinitz , and NJSBA past president Miles S . Winder III .
The Supreme court focused on the question of why a special master should not be appointed to review whether DIEs meet the standards for admissibility , noting competing studies and scholarly writings on the issue , the credibility of which the court cannot evaluate without further hearings .
The case arises from Olenowski ’ s convictions for driving while intoxicated , which occurred on two separate occasions in the same year . He drew a reading of . 04 percent blood alcohol content the first time and a zero percent reading the second , but was visibly impaired , according to the officers who arrested him and the DREs who evaluated him . The trial court upheld the convictions , holding that DRE evidence was “ generally acceptable and reliable in the scientific community .” The decision was upheld by the Appellate Division in an unpublished opinion .
In its brief , the NJSBA argued that neither the DIE technique nor the DRE opinion are generally accepted in the scientific community or sufficiently reliable to indicate that Olenowski was driving under the influence . “ The NJSBA asks this court to declare the DIE technique and DRE opinion derived therefrom inadmissible for any purpose unless it ’ s proponent , the state , lays appropriate foundation ,” the NJSBA wrote . “ Such a ruling would provide guidance to trial courts and avoid the errors committed in the present case .”
A link to remand order at https :// pdfhost . io / v / tg7vKW261 _ Olenowskipdf . pdf
24
Continued on next page