DWI blood case defense

10 Tips on Defending the DWI blood & urine case
 By Kenneth Vercammen, Co-chair, ABA Criminal Law Committee Solo Division
  1. Make a detailed request for blood records discovery, not sending a short lazy letter “Please provide discovery…”  The following is a portion of our form discovery demands from the NJ ICLE seminar book “Handling Drug, DWI and Serious Motor Vehicle Offenses” by Ken Vercammen and John Menzel, JD.
Ex: My client is charged with DWI, which has Consequences of Magnitude.
More info at http://www.njlaws.com/dwi-blood.html
 Additional Discovery demanded by defense and expert:
1 all gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div.1986).  
2. All results and notes of any tests performed.
3. The operator's manual for all instruments used to test the substances, pursuant to State v Green 417 NJ Super. 190 (App. Div. 2010) and State v Ford 240 N.J. Super. 44 (App. Div. 1990). Defense requests all operating procedures, instruction manuals, test protocols, maintenance logs of the gas chromatograph or equipment used, performance evaluations, and test result printouts.
4. resume and personnel file of scientist
5. all the 911 and police calls for date of violation.
6. All video for police vehicles or other video available.
7. names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by the state as to which of those persons the state may call as witnesses; and their dates of birth

 2. Make a formal Demand for documents regarding Field Sobriety testing. Also make a separate request for Public records under the Open Public Records OPRA law to township clerk and police chief.

1. training materials for each any "test" usually given to individuals under suspicion of DWI including manuals, lesson plans, texts, tests, and article reprints kept by Police department.

2. Many departments rely on the NHTSA Manuals dealing with field sobriety. If your department relies on these manuals, please provide a copy of the specific manual relied on by Police department

3. Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of walk and turn

4. Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of finger to nose.

5. Documents which set forth, Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform other field sobriety tests, such as the one legged stand.

Evicting delinquent tenants who owe rent

LANDLORDS - EVICTING TENANTS FOR NON-PAYMENT OF RENT
                         By Kenneth A. Vercammen  Esq
 This article will briefly explore certain remedies and recommendations to landlords. Unlike big apartment complexes, many landlords in New Jersey do not have full time management companies handling the collection of rent. Yet all landlords should handle their payments as a business, just as big corporate landlords. More info at http://www.njlaws.com/landlords-eviciting_tenants_for_nonpayment.htm

WRITTEN LEASE
 A  written lease is recommended for all rentals even for a month to month. Your lease should specifically require that the tenant pay the landlord's attorney's fees if they fail to pay rent or breach the lease in any way. If a written lease does not provide for attorneys fees, the court cannot award attorneys fees. In addition, your lease should provide in writing for re-renting cost if the tenant breaches the lease. Many leases also provide for late fees. If you do not have a written lease, have your attorney draft one!

Eviction: NON-PAYMENT OF RENT
 If your tenant fails to pay and you want to evict the tenant, a Tenancy Summons plus an Eviction Complaint must be filed in the Superior Court's Special Civil Part, Tenancy Division.  The court-filing fee is was increased to $50 plus mileage. Different attorneys charge different fees depending upon the amount of work to be done. Your attorney can prepare the mandatory complaint and summons. Our minimum fee is $1,500, up front. Our consult fee is minimum $150.
 The Court Constable is required to personally serve the tenant with a copy of the complaint. The court clerk will fill out the date and time for hearing on the summons, which also will be served on the tenant.
 You and your attorney should appear on the date for hearing. If the tenant appears, parties sometimes work out a payment plan for rent with a stipulation of settlement and stay of eviction. The landlord and tenant usually agree if all rent is not paid according to the schedule, the court is directed to issue a warrant for possession.

FAILURE OF TENANT TO APPEAR
 If the tenant fails to appear by the second call, you can pay an additional fee for a warrant of removal. This is obtained at the Special Civil Part Clerk, Tenancy Section Office. After waiting three days, the constable is given the warrant to serve at the tenant's property. If the tenant still fails to move, arrangements can be made with the constable and locksmith to physically remove the tenants and change locks.

Improper Turn Violation 39 4 123

39:4-123 Failure to make proper turn
     Penalties set forth at 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
fines $50 $200 plus court costs and possible non renewal by insurance company
points
3 NJ MVC points 39:4-123 Improper right or left turn 3
Plus 3 car insurance points
More info at http://www.njlaws.com/39_4-123properright.htm

Fine ranging from $50-$200 or imprisonment not exceeding 15 days, or both. For information regarding points or surcharges contact the Motor Vehicle Commission. For information about car insurance eligibility and points contact your car insurance company or the New Jersey Department of Insurance.
Except as otherwise provided in this article, the driver of a vehicle intending to turn at an intersection shall do so as follows:
(a) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.
(b) Left turns on two-way roadways. At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.
(c) Left turns on other than two-way roadways. At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the roadway being entered.
39:4-123 Failure to Make Proper Right and Left Turns

Improper use of Power of Attorney

http://www.njlaws.com/Fiduciary_Duties_Obligations_and_Liabilities.html
Breach of fiduciary

The New Jersey Supreme Court has described the elements of a claim for breach of fiduciary duty as follows:
The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. Restatement (Second) of Torts§ 874 cmt. a (1979) . . . . The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Restatement (Second) of Trusts §§ 170, 174 (1959). Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Restatement (Second) of Torts § 874 (1979).
[McKelvey v. Pierce, 173 N.J. 26, 57 (2002) (quoting F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997)).]
   Financial exploitation of older persons, including the systematic depletion of bank accounts or other resources for the benefit of the abuser, has been tagged the "crime of the 90s."' The number of financial exploitation cases will only continue to rise as the population continues to age. Despite the increase in financial abuse cases, law enforcement officials remain reluctant to pursue perpetrators of abuse, traditionally viewing the situation as a family matter best resolved by civil litigation.
 Because an agent owes a fiduciary duty to his or her principal, a cause of action for breach of that  fiduciary duty may redress a wide variety of aberrant conduct by an agent. An agent is required to act for the advancement of the interests of the principal. The agents may not serve or acquire any private interest of his or her own that is adverse to the interests of the principal without the principal's consent.  The duty of the agent to the principal is one of utmost good faith and loyalty. Furthermore, agents, as fiduciaries, are required to make full disclosure to their principals of all information material to a transaction. An agent that breaches his or her fiduciary duty may be liable in tort. All of the traditional tort damages are available, including punitive damages where conduct is wanton or willful. An agent who is dishonest may also forfeit his or her right to compensation for those duties.

  Conversion
 Conversion is the wrongful or unauthorized exercise of dominion or control over a chattel. A conversion action is a tort. The tort of conversion is "bottomed upon a tortious interference with possessory rights."
 Under the common law, an agent has a duty to account to his principal. An agent must keep and render accounts and, when called upon for an ac- counting, has the burden of proving that she or he properly disposed of funds that she or he is shown to have received for her or his principal. The relationship between a principal and an attorney-in-fact can be analogized to the relationship between a trust beneficiary and trustee. Thus, the agent bears the burden of proving that he or she has properly disposed of funds.
 The elements of a cause of action for breach of fiduciary duty are:
(1) Plaintiff and Defendant share a relationship whereby:
(a) Plaintiff reposes trust and confidence in Defendant, and
(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or protect Plaintiff;
(2) Defendant breaches its duties to Plaintiff; and
(3) Plaintiff suffers damages.
     The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Leaving the scene of accident with property damage

39:4-129, 39:4-130 Leaving Scene of Accident and Failure to Report, Car Accident
    Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. There is mandatory 6 month loss of license for leaving the scene. Our goal as the attorney is to negotiate with the prosecutor to reduce down to a violation with no suspension.
39:4-129   Action in case of accident.
 39:4-129 . (a) The driver of any vehicle, knowingly involved in an accident resulting in injury or death to any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene until he has fulfilled the requirements of subsection (c) of this section.  Every such stop shall be made without obstructing traffic more than is necessary.  Any person who shall violate this subsection shall be fined not less than $2,500 nor more than $5,000, or be imprisoned for a period of 180 days, or both.  The term of imprisonment required by this subsection shall be imposed only if the accident resulted in death or injury to a person other than the driver convicted of violating this section.
More info at http://www.njlaws.com/leaving_the_scene.html
       In addition, any person convicted under this subsection shall forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of his conviction for the first offense and for a subsequent offense shall thereafter permanently forfeit his right to operate a motor vehicle over the highways of this State.

2C:33-2.1 Loitering to Obtain or Distribute CDS Drugs

2C:33-2.1 Loitering to Obtain or Distribute CDS drugs
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
Loitering to obtain or distribute CDS 2C:33-2.1.
"Public place" defined; Loitering to obtain or distribute CDS is a disorderly persons offense 1. a. As used in this section:
"Public place" means any place to which the public has access, including but not limited to a public street, road, thoroughfare, sidewalk, bridge, alley, plaza, park, recreation or shopping area, public transportation facility, vehicle used for public transportation, parking lot, public library or any other public building, structure or area.
More info at http://www.njlaws.com/loitering_to_obtain_or_distribute_cds.htm
b. A person, whether on foot or in a motor vehicle, commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully obtaining or distributing a controlled dangerous substance or controlled substance analog; and (2) engages in conduct that, under the circumstances, manifests a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog.
c. Conduct that may, where warranted under the circumstances, be deemed adequate to manifest a purpose to obtain or distribute a controlled dangerous substance or controlled substance analog includes, but is not limited to, conduct such as the following:
(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;
(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;
(3) Repeatedly circling in a public place in a motor vehicle and on one or more occasions passing any object to or receiving any object from a person in a public place.
d. The element of the offense described in paragraph (1) of subsection b. of this section may not be established solely by proof that the actor engaged in the conduct that is used to satisfy the element described in paragraph (2) of subsection b. of this section.

Municipal Court Appeals

Municipal Court Appeals
 Municipal Court criminal convictions and Motor vehicle convictions can cost you.
 You may have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. Division of Motor Vehicles or have your license suspended. It is usually best to hire an experienced attorney to represent you for motor vehicle violations. The trial in a Municipal Court is held in front of a Municipal Court Judge, and no jury trial is permitted. The Judge is ordinarily selected by the Town Mayor and Council. The appointment sometimes is based upon input from the Police Chief, PBA and local political organization.
 If after your trial you are unhappy with the decision and the suspension is excessive, you should hire an experienced attorney for the appeal. There is only twenty days for your attorney to properly prepare the papers and appeal. On appeal, the Judge only reads a transcript and looks at exhibits. There is no new testimony and the appeal judge is bound by the fact finding below, according to State v Lutz 309 N.J. Super. 317 (App. Div. 1998). More info at http://www.njlaws.com/municipal_court_appeals.html
The following are some of the Court Rules you and your attorney must comply with.
Why Appeal? Consequences of a Criminal conviction

1 You will have a criminal record
2 You may go to Jail or Prison.
3. You will have to pay Fines and Court Costs.
4. You could be put on Probation for up to five years.
5. You must wait 3-5  years to expunge a first offense. 2C:52-3
6. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years.
7 When you are on Probation or Parole, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
8. You may be required to do Community Service.
9 You lose the presumption against incarceration in future cases. 2C:44-10 You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
10. Future employers may not hire you because you have a criminal record. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty and may be barred from any future city, state, federal or school employment
11. If you are not a United States citizen or national, you may be removed/deported by virtue of your plea of guilty or prevented from citizenship.