The New Jersey Police Chief Magazine | April 2024
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Court order is expressed as comity with the Legislature ' s view in the recent DWI statute amendments . This changes 40 plus years on prohibition on DWI plea bargains . The Supreme Court recognized the new plea-bargaining statute which became effective on February 19 , 2024 . L . 2023 , c . 191 , §§ 2 , 9 .
�� DWIs can possibly be plea bargained as long as there ' s a factual basis .
Accordingly , in the interest of comity , the Court adopts the statement of policy in the amendment to N . J . S . A . 39:4-50 and withdraws Guideline 4 .
3 . DRE in DWI cases requires a 12 step process State v . Olenowski 253 N . J . 133 ( 2023 )
The Supreme Court released an opinion in State v . Olenowski that dramatically changed New Jersey law . Prior to the decision , a court ' s evaluation of the scientific reliability of novel scientific devices or procedures had been decided under the century old decision in Frye v . United States , 293 F . 1013 ( D . D . Cir . 1923 ).
Detecting and proving that a driver ingested and was under the influence of drugs while behind the wheel can be challenging . To enable such detection , law enforcement officials and researchers developed a twelve-step protocol :
( 1 ) a breath alcohol test ; ( 2 ) an interview of the arresting officer ; ( 3 ) a preliminary examination and first pulse check ; ( 4 ) a series of eye examinations ; ( 5 ) four divided attention tests ; ( 6 ) a second examination and vital signs check ; ( 7 ) a dark room examination of pupil size and ingestion sites ; ( 8 ) an assessment of muscle tone ; ( 9 ) a check for injection sites ; ( 10 ) an interrogation of the driver by the DRE ; ( 11 ) a final opinion , based on the totality of the examination , about whether the driver is under the influence of a drug or drugs ; and ( 12 ) a toxicological analysis .
4 . Officer could not walk onto driveway to look into hole in porch State v Ingram 474 N . J . Super . 522 ( App . Div . 2023 )
The court considers whether a police officer , who walked onto the driveway of a home without permission or a warrant , was lawfully there when he observed illegal narcotics in a hole in the home ' s front porch .
Because the driveway was part of the home ' s curtilage , the court holds that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception . Accordingly , the court reverses the trial court ' s denial of defendant ' s motion to suppress the seized contraband .
5 . Suppression where dispatcher just assumed robber was black State v Scott 474 N . J . Super . 388 ( App . Div . 2023 ) Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-onthe-lookout ( BOLO ) description of the person who committed an armed robbery in the vicinity minutes earlier . The BOLO alert described the robber as a Black male wearing a dark raincoat . However , the victim did not provide the race of the perpetrator when she reported the crime . The State acknowledges it does not know why the police dispatcher assumed the robber was Black .
The court address three issues of first impression . As a threshold matter , the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I , Paragraphs 1 and 5 of the New Jersey Constitution .
Second , the court holds that " implicit bias " can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v . Segars , 172 N . J . 481 ( 2002 ). Reasoning that the problem of implicit bias in the context of policing is both real and intolerable , the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation . The State ' s inability to offer a race-neutral explanation for the dispatcher ' s assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars .
Third , the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I , Paragraphs 1 and 5 . After balancing the cost of suppression against the need to deter discriminatory policing and uphold public
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