(3)Theft constitutes a crime of the fourth degree if the amount involved is at least $200.00 but does not exceed $500.00.
If the amount involved was less than $200.00 the offense constitutes a disorderly persons offense.
Criminal Indictable and Disorderly Offense Penalties
Disorderly person criminal offenses- ex Simple Assault, shoplifting & cases in Municipal Court
Jail 2C: 43- 8 jail 6 month maximum
probation 1-2 year
community service 180 days maximum
mandatory costs, VCCB and other penalties
Disorderly- fines: 2C: 43- 3 $1,000 Fine maximum
There are many other penalties that the court must impose in criminal cases. There are dozens of other penalties a court can impose, depending on the type of matter.
Drug offenses: in addition to above penalties, mandatory minimum $500 DEDR penalty, mandatory lab fee and other court costs over $200, mandatory 6 month- 2 year loss of license, Probation, drug testing and other penalties. If attorney's Conditional Discharge motion is granted for first time offender. penalty can be reduced. In certain drug cases, the fine can be up to $75,000.
-Petty Disorderly person - 30 days jail maximum
Petty DP $500 max Fine, VCCB and other penalties
Indictable Criminal Penalties [Felony type] [ Superior Court]
Jail potential Fine max Probation
1st degree 10- 20 years $200,000 [presumption of jail]
2nd degree 5-10 years $150,000 [presumption of jail]
3rd degree 3- 5 years $15,000 1 year- 5 year
4th degree 0- 18 months $10,000 1 year- 5 year
There are many other penalties that the court must impose in criminal case. There are dozens of other penalties a court can impose, depending on the type of matter. Read www.njlaws.com/jail_for_crimes_and_disorderly_conduct.html
If you or a family member are charged with a criminal offense, you should retain an experienced criminal attorney to argue to reduce the penalties!
In NJ typically there is only 4 months to file a Superior Court complaint to object to a Will which is already filed with the Surrogate
See Rule 4:85-1. Complaint; Time for Filing
If a Will has been probated by the Surrogate's Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter. If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances. The complaint and order to show cause shall be served as provided by R. 4:67-3. Other persons in interest may, on their own motion, apply to intervene in the action.
4:85-2. Enlargement of Time
The time periods prescribed by R. 4:85-1 may be extended for a period not exceeding 30 days by order of the court upon a showing of good cause and the absence of prejudice.
Commons grounds object to Will is undue influence.
Undue Influence to challenge a Will or Power of Attorney
A grievance based upon undue influence may be sustained by showing that the beneficiary had a confidential relationship with the party who established the account. Accordingly, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence, which the surviving donee must rebut by clear and convincing evidence.
On January 30th 2014, the New Jersey Supreme Court explained the law on gifts between father and son in Bhagat v. Bhagat 217 N.J. 22 (2014)
The court remanded the case to the trial court for proceedings consistent with the Supreme Court decision clarifying the standard to apply when determining whether a transfer of property between family members is a gift. This case involved a father’s 1989 transfer of stock in a closely held corporation to the defendant, his son. The son claimed that the transfer of stock was a gift to him from the father. The father denied that the transfer was a gift, but was done for financing purposes and was never intended to be final.
The Supreme Court in Bhagat held in an opinion written by Judge Cuff:
“There are three elements of a valid and irrevocable gift. First, there must be actual or constructive delivery; that is, the donor must perform some act constituting the actual or symbolic delivery of the subject matter of the gift. Pascale v. Pascale, 113 N.J. 20, 29 (1988). Second, there must be donative intent; that is, the donor must possess the intent to give. Ibid. Third, there must be acceptance. Ibid. We have also recognized that the donor must absolutely and irrevocably relinquish ownership and dominion over the subject matter of the gift, at least to the extent practicable or possible, considering the nature of the articles to be given. In re Dodge, 50 N.J. 192, 216 (1967); accord Sipko v. Koger, Inc., 214 N.J. 364, 376 (2013); Farris v. Farris Eng g Corp., 7 N.J. 487, 500-01 (1951).
Actual delivery of the gifted property is necessary except where there can be no actual delivery or where the situation is incompatible with the performance of such ceremony. Foster v. Reiss, 18 N.J. 41, 50 (1955) (quoting Cook v. Lum, 55 N.J.L. 373, 374 (Sup. Ct. 1893)). A gift of stock is such a situation because the ownership of stock is now often recorded simply in book form by the issuer or a broker. See N.J.S.A. 12A:8-301b. Therefore, [i]n the absence of express provisions to the contrary, stock may be transferred by delivery of a separate written transfer, without delivery of any certificate where it is not in possession of the transferee. Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152, 162 (App. Div. 1984). In other words, the delivery of the stock certificate may be constructive, and the failure to record the transfer on the corporate books does not defeat the gift so long as the transfer is accompanied by words that express donative intent and the donor has divested himself completely of the property. Id. at 162-63.
The burden of proving an inter vivos gift is on the party who asserts the claim. Sadofski v. Williams, 60 N.J. 385, 395 n.3 (1972). Generally, the recipient must show by clear, cogent and persuasive evidence that the donor intended to make a gift. Farris, supra, 7 N.J. at 501. When, however, the transfer is from a parent to a child, the initial burden of proof on the party claiming a gift is slight. Metro. Life Ins. Co. v. Woolf, 136 N.J. Eq. 588, 592 (Ch. 1945), aff d, 138 N.J. Eq. 450 (E. & A. 1946). In such cases a presumption arises that the transfer is a gift. Peppler v. Roffe, 122 N.J. Eq. 510, 515 (E. & A. 1937); First Nat l Bank v. Keller, 122 N.J. Eq. 481, 483 (E. & A. 1937); Bankers Trust Co. v. Bank of Rockville Ctr. Trust Co., 114 N.J. Eq. 391 (E. & A. 1933); Prisco v. Prisco, 90 N.J. Eq. 289, 289 (E. & A. 1919); Herbert v. Alvord, 75 N.J. Eq. 428, 429 (Ch. 1909); Betts v. Francis, 30 N.J.L. 152, 155 (Sup. Ct. 1862). The presumption does not apply if the parent is a dependent of the child. Peppler, supra, 122 N.J. Eq. at 515. See also Weisberg v. Koprowski, 17 N.J. 362, 372-73 (1955). The rationale for the presumption is that a child is considered a natural object of the bounty of the donor. Weisberg, supra, 17 N.J. at 373. See Restatement (Third) of Trusts 9(2) (2001) (noting that resulting trust does not arise when transfer of property is made by one person but payment is made by another when recipient is spouse, dependent, or other natural object of person making payment).
Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged erased under certain instances. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings.
Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION
You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including:
a. Date of Birth and Social Security #
b. Date of Arrest
c. Statute Arrested For and Statute Convicted
d. Original Indictment, Summons, or Complaint Number
e. Petitioners Date of Conviction or Date of Disposition
f. Courts Disposition of the Matter and Punishment Adopted, if Any
In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days.
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people:
1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case.
If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings.
There are additional pleadings which the applicants attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean.
http://www.njlaws.com/expungement.html
A person who operates a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or above is considered to be driving under the influence. A person may also be found to be driving under the influence through officer observation or other evidence.
First Offense - BAC 0.08% but less than 0.10% or no reading
• 3 months driving privilege suspension
• $250-$400 fine
• 12-48 hours at intoxicated driver resource center (IDRC) • Maximum 30 days imprisonment
$230 IDRC fee
$100 to drunk driving fund
$100 to AERF
$75 to Neighborhood Services Fund
plus court costs
First Offense - BAC 0.10% or higher
• 7 months to 1 year driving privilege suspension • $300-$500 fine • 12-48 hours IDRC
• 30 days maximum imprisonment*
$230 IDRC fee
$100 to drunk driving fund
$100 to AERF
$75 to Neighborhood Services Fund
plus court costs
Car Interlock Machine: First Offense, DWI w/BAC level below 0.15% or no reading, Court may impose
• 6 months – 1-year installation of interlock device after restoration of driving privileges
First Offense, DUI w/BAC level 0.15% or above and 1st refusal convictions, Court shall impose
• installation of interlock device required during the term of suspension and
• 6 months - 1 year installation of interlock device after restoration of driving privileges
In addition to the court imposed fines and penalties, anyone convicted of DUI or chemical test refusal is subject to:
• an insurance surcharge of $1,000 a year for three years ($3,000) for the first and second conviction within a three- year period.
Plus 9 points on your car insurance
http://www.njlaws.com/driving_under_influence_dui.htm
The defense of a person charged with possession of Controlled Dangerous Substances (CDS) is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with controlled dangerous substances . The Municipal Court has jurisdiction to hear the following drug related Controlled Dangerous Substances offenses: NJSA 2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c), failure to deliver cocaine or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense] ; NJSA 2C:36 2, possession of drug paraphernalia At the initial interview the defense attorney must determine what happened, what was told to police and the possible defense witnesses to be interviewed. Defense counsel should completely understand the facts and circumstances of the stop and arrest. Defense counsel should explain to the client the possible penalties which can be imposed.
http://www.njlaws.com/drug_possession.htm
Depending on the case, County and prior offenses, fees range between $1,000- $7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. We try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5 7. Do it immediately, do not wait to receive discovery.
Pre trial Intervention/ PTI If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre trial Intervention. For marijuana and small amounts of cocaine, heard in Municipal Court, N.J.S.A. 2C: 36A 1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21 27, 2C:43 12 or 2C: 36A 1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances.
http://njlaws.com/drug_charge.html?id=213&a=
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH YOUR ATTORNEY MAY INCLUDE IN A WILL:
1ST: DEBTS AND TAXES
2ND: SPECIFIC BEQUESTS
3RD: DISPOSITION TO SPOUSE
4TH: DISPOSITION OF REMAINDER OF ESTATE
5TH: CREATION OF TRUSTS FOR SPOUSE
6TH: CREATION OF TRUST FOR CHILDREN
7TH: OTHER BENEFICIARIES UNDER 21
8TH: EXECUTORS
9TH: TRUSTEES
10TH: GUARDIANS
11TH: SURETY OR BOND
12TH: POWERS
13TH: AFTERBORN CHILDREN
14TH: PRINCIPAL AND INCOME
15TH: NO ASSIGNMENT OF BEQUESTS
16TH: GENDER
17TH: CONSTRUCTION OF WILL
18TH: NO CONTEST CLAUSE
A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL
Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are:
* Marriage, death, birth, divorce or separation affecting either you or anyone named in your Will
*Significant changes in the value of your total assets or in any particular assets, which you own
* A change in your domicile
* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will
*Annual changes in tax laws
MAY I CHANGE MY WILL?
Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a Codicil signed to legally change portions of the Will.
Save money with proper planning
Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. With a well-drawn Will, you may also reduce death taxes and other expenses. Don’t pinch pennies now to the detriment of your beneficiaries.
The proper preparation of a Will should involve an analysis of the client’s assets, family and his/her desires.
Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives.
The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will. A properly drawn Simple Will without Trust costs approximately $200.00 to $600.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have.
Be sure your Will takes into account the Federal Tax changes and New Jersey Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.
WHAT IS A WILL?
“A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed and who will take care of your minor children if the other parent should die ". You should remember that the term “property” under the law includes "real estate as well as other possessions and rights to receive money or items of value.” Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.
Reducing the NJ Estate Tax on estates over $675,000.
A New Jersey estate tax return must be filed if the decedent's gross estate plus adjusted taxable gifts exceeds $675,000.
Even if there is no NJ Inheritance Tax there can be a NJ Estate Tax if the estate exceeds $675,000 and the beneficiaries are children or grand children. There is a substantial tax that must be paid after the 2nd spouse dies on amounts over $675,000.
You can hire an attorney to set up Trusts or a Will with a Credit Shelter Trust to try to reduce NJ Estate taxes due. We charge a minimum fee of $400 for each Trust within a Will. A separate stand alone Trust has a minimum fee for $2,500.
http://www.njlaws.com/wills.htm
2. Administrative / Division of Motor Vehicles suspension
The most common scenario reflects where that the driver, through a motor vehicle violation, failure to pay surcharge or a accumulated points has been placed on a suspended list maintained by the New Jersey Division of Motor Vehicles (Division of Motor Vehicles), thereby making them ineligible to operate a motor vehicle for a prescribed period of time in this state.
If the driver is aware that they are on the suspended list and acknowledged they were suspended to the police officer there is little room for defense However, more often than not the driver claims that they were unaware of their placement on the suspension list.
The scenario that will often be presented by the driver is that he/she was stopped by police for an unrelated motor vehicle violation. In the process of the police encounter they were informed by the officer that their license has been suspended and they were issued an additional summons for Driving While Suspended. Over the past decade several New Jersey cases have crafted the current position on the driving while suspended issue that often confronts many municipal courts throughout the state.
THE STATE MUST SHOW DUE PROCESS AND ADEQUATE NOTICE
The first and foremost is that of adequate notice of the suspension. In Parsekian v. Cresse, 75 N.J. Super. 405 (App Div. 1962), the court ruled that it was incumbent upon the Director of the State Division of Motor Vehicles to provide fair and adequate notice to the licensed driver of the proposed suspension of their license. The court recognized that the Director could not arbitrarily suspend the license of a driver without providing both notice and enunciating specific reasons as to why the license was being suspended.
http://www.njlaws.com/driving_on_a_suspended_license.html
NOTICE BY Division of Motor Vehicles
Where the driver was suspended by the Division of Motor Vehicles, the state must introduce
Notice of scheduled suspension.
Proof of mailing notice.
Order of suspension.
Proof of mailing order.
Certified motor vehicle abstract.
http://www.njlaws.com/driving_on_a_suspended_license.htm
Kenneth Vercammen's Law office represents individuals charged with DWI throughout New Jersey.
THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE According to N.J. Practice, Criminal Procedure by Honorable Leonard Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034, a party seeking to introduce an item of physical evidence must prove that the item was that which was taken from a particular person or place which makes the item relevant as evidence in the trial. Such proof is provided by testimony identifying the item as having been taken from that person or place, and by evidence tracing custody of the item from the time it was taken until it is offered in evidence. This latter evidence is necessary to avoid any claim of substitution or tampering.
State v. Johnson, 90 N.J. Super. 105, 216 A.2d 397 (App. Div. 1965), affd 46 N.J. 289, 216 A.2d 392 (1966). The required proof includes: 1) testimony by an investigator identifying the item as that which the investigator discovered and took; 2) testimony by that investigator that there was no tampering with the item while it was in his/her custody; 3) testimony regarding delivery of the item to the second person who had custody of the item; 4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court.
Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include: testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial. Arnold, N.J. Practice, Criminal Procedure, Sec. 1034.
The most difficult aspect of the proof specified above is usually the identification of the evidence by the investigator who discovered it. This difficulty arises because of the frequent failure to properly "mark" the item. "Marking" means the placing by the investigator of at least his/her initials on the item. Unfortunately, sometimes items are "marked" by affixing an evidence tag to the item with a string. The investigator then puts his/her initials on the tag. When the string breaks and the tag is lost it may then be impossible for the investigator to identify the item as being the item that was discovered. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.
Many excellent texts, one such text is the Handbook of Forensic Science, published by the Federal Bureau of Investigation provide information on the proper "marking" of various types of evidence, and they should be studied by investigators having responsibility for the collection of physical evidence. But the basic rule is as follows: The item should be "marked" by the investigator placing his/her initials, date, and the case number on the item itself. Metallic surfaces should be so "marked" with a machinists scribe. Liquids, soils and small fragments should be placed in a suitable container and sealed. The container should be "marked" by scribing the same information on the container, or by using some other permanent form of marking material on the container. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.
With respect to avoiding a claim of substitution of another item for that seized or a claim that the item has been tampered with, the problems of proof can be minimized by designating one investigator as the custodian of all the physical evidence in a given investigation. All investigators who recover physical evidence must turn that evidence over to the custodian, who is then responsible for the evidence from that time forward until trial. N.J. Practice, Criminal Procedure by Honorable Leonard Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034,
Where evidence must be submitted to a laboratory, the custodian delivers that evidence to the laboratory, and obtains a receipt from the laboratory. When the laboratory has completed its examination, it is the custodian who returns to the laboratory, receives the remaining specimen1 from the laboratory, and retains custody of the specimen and brings it to court for trial. By following this procedure, all the physical evidence can be introduced by calling the various investigators who recovered and marked each item of physical evidence, the custodian, and the laboratory specialist who examined the evidence. (The laboratory specialist testifies not only with respect to the laboratory examination, the specialists findings and opinion, but also as to the method of reception and storage at the laboratory prior to and after analysis.) Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.
For more information go to http://www.njlaws.com/handling_dwi_blood.html?id=467&a=
Kenneth Vercammen's Law office represents individuals charged with DWI throughout New Jersey.
1. The State must prove probable cause to stop the motor vehicle;
A WARRANTLESS STOP IS IN VIOLATION OF A DRIVERS FEDERAL AND STATE CONSTITUTIONAL RIGHTS UNLESS THERE IS PROBABLE CAUSE FOR THE STOP.
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights.
Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment. State v. Davis, 104 N.J. 490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search. State v. Welsh, 84 N.J. 348, at 352. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. State v. Patino, 83 N.J. 1 (1980).
When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation. State v. Brown, 132 N.J. Super. ___ (App. Div. 1975). The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976). Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra.; State v. Welsh, 84 N.J. 348, (1980). In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973) Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings Weeks v United States 232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961).
Courts are to afford liberal, not grudging, enforcement of the Fourth Amendment. We do not have one law of search and seizure for narcotics and gambling cases and another for breaking and entering and theft. The meanness of the offender or the gravity of his crime does not decrease, but rather accentuates the duty of the courts to uphold and dispassionately apply the settled judicial criteria for lawful searches under the Amendment. For it is the hard case which sometimes proves the Achilles heal of constitutional rights, even as it tends to make bad law in other areas. State v Naturile 83 NJ Super. 563, 579 (App. Div. 1964).
For more information visit http://www.njlaws.com/handling_dwi_blood.html?id=467&a=
