NJ Legal Beat
Wednesday, January 26, 2005
Illinois v. Caballes: Is the Consitution going to the dogs?
The United States Supreme Court eroded our freedoms yesterday when it ruled that the police can use a canine sniff at the scene of a routine stop of a motor vehicle for a traffic violation. There is hope, however, because the New Jersey Constitution provides for individual protections that go beyond those that the United States Constitution provides.
Imagine that the police have stopped your car for a routine speeding violation. The police ask for your license, registration and insurance, but then they do something unexpected: They have a drug sniffing dog smell the outside of your car. There is no suggestion of anything illegal, other than a speeding violation. It may seem absurd but it has happened.
Thanks to the recently decided case of Illinois v. Caballes, the United States Constitution now permits the police to take such an intrusive action. The facts of the case are as follows. In 1998, an Illinois State Trooper pulled over Caballes for speeding. As the officer issued Caballes a warning, another officer arrived and led a drug-sniffing dog around Caballes’ car. The dog alerted the officers to the trunk of Caballes’ car, in which they found over $250,000 worth of marijuana. Caballes claims that using a “canine sniff” in the absence of a reasonable suspicion of illegal activity violated his Fourth Amendment right against unreasonable search. The state trial court held the search reasonable and denied Caballes’ motion to suppress the drug evidence. The appellate court affirmed. The Illinois Supreme Court reversed, stating that “specific and articulable facts” are necessary to justify the use of a drug-sniffing dog.
The United States Supreme Court reversed the Illinois Supreme Court, holding that the police don’t need anything beyond a legitimate motor vehicle violation to have a drug dog sniff your car. The Caballes decision is certain to cause litigation in the New Jersey courts because the New Jersey Constitution gives the individual more protection than its federal counterpart. This is a decision that New Jersey courts must severely limit.
Howes & Howes is currently involved in a substantial case that may be directly affected by the Caballes decision. If you have any questions regarding this issue, then please contact Howes & Howes.
Tuesday, December 28, 2004
Settlement of New York class action lawsuit gives new hope to victims of domestic violence
The settlement in Nicholson v. Scoppetta ended the pitiless double abuse of removing children from the custody of mothers who were the victims of domestic violence in New York. This landmark case is likely to have implications here in New Jersey as DYFS struggles with domestic violence in custody, visitation, and abuse and neglect.
Domestic violence does not discriminate. It is a scourge that touches on each and every one of New Jersey’s 568 municipalities. More often than not the victims of domestic violence are mothers who face a horrible dilemma. They need to protect themselves from a violent spouse or significant other, but if they report him to the police, they fear that the police will report the family to DYFS and they will lose their children.
Mothers who are victims of domestic violence need not navigate between Scylla and Carybdis anymore, thanks to a settlement reached in a class-action lawsuit on behalf of New York victims of domestic violence. The settlement in Nicholson v. Scoppetta has ended the practice of automatic removal of children who witness their mother’s being abused.
The settlement is not binding in New Jersey, but it is likely to have implications here.
In New Jersey, DYFS can remove a child from his or her home if there is neglect or abuse of that child. Removals sometimes happen in the context of an abusive household. When DYFS learns of domestic violence in a home with children, it will intervene in that family. Domestic violence can be part of a finding of neglect or abuse under New Jersey law. A victim of domestic violence need not fear being a second indignity when DYFS removes their child from the home.
The settlement in the Scoppetta case stands for the proposition that domestic violence in a home is not grounds for removal of the children in-and-of-itself. DYFS must take heed of this principle so that domestic violence victims don’t have to fear DYFS when seeking the police protection that they need.
Saturday, November 20, 2004
The “unsafe driving” surcharge will create a backlog in New Jersey’s municipal courts
As the powers-that-be press municipal courts to increase collection of the Unsafe Driver Surcharge, motorists and the municipal court bar will react by taking more cases to trial.
Nearly five months have passed since the politicians in Trenton imposed a $250 surcharge on each conviction for “unsafe driving”. On this website, we have argued that the new surcharge is nothing more than a tax on the middle class. Nearly five months of experience have shown that this surcharge leads to unfair and heavy penalties for minor infractions committed by safe drivers.
Many New Jersey motorists drive for years without receiving a summons. Imagine someone with a clean driving record for a decade who doesn’t slow down sufficiently when entering one of New Jersey’s many designated “safe corridors”. The motorist receives a four-point ticket for speeding. On the appointed court date, the prosecutor adjusts the offense to “unsafe driving”, a no-point summons.
Since the event happened in a “safe corridor”, the fine is doubled. On top of that there is a $250 surcharge. Imagine the motorist’s dismay when the court assesses over $500 in penalties for this one minor infraction!
Over the past few months prosecutors have agreed to adjust minor summonses to other offenses that do not carry the $250 surcharge. The law allows the prosecutor to amend a moving violation to a no-point offense such as “obstructing traffic” or “delaying traffic” when the facts of the case support it.
That natural trend has brought a strong reaction from above. Why? Because the state government’s finances depend on collection of the $250 surcharge. Municipal courts must now explain the presiding judge every time they use “obstructing traffic” instead of “unsafe driving”. As such, municipal judges and prosecutors are more reluctant to dispense this kind of justice.
In law as in nature, for every action there is an equal and opposite reaction. The motorist has another option is to have a trial in these cases. Simple matters that formerly took only a few minutes will take a half hour of court time. The municipal courts are an instrument of public safety, but the 2004 state budget has made them unwilling collection agents for the politicians in Trenton.
Thursday, October 21, 2004
Syringe legalization proposal: Slouching toward drug legalization?
There is a proposal working its way through the New Jersey legislature that would legalize the possession of hypodermic needles without a prescription. Supporters of the bill say it would protect public health. Opponents say that this is the first step toward drug legalization.
Under New Jersey law, it is a disorderly persons offense punishable by up to six months in jail to possess a syringe without a prescription from a doctor. The principal illegal use of a syringe is to inject heroin. There is a proposal that would change all that.
Bills allowing pharmacies to make limited sales of syringes over the counter sailed through the Assembly in two weeks, but has stalled in the State Senate. Proponents of the bill argue that this law will help stop the spread of AIDS and other communicable diseases. They argue that drug users would be able to use clean needles instead of dirty needles, and that they would no longer share dirty needles with other drug users.
Opponents of the bill argue that needle exchange experiments in other countries have been abject failures, and that they encourage heroin use instead of stopping the spread of disease. Opponents also believe that should this proposal succeed, that the next step would be legalization of narcotics.
As a matter of practical criminal law, the proposal would legalize possession of syringes - for children and adults alike - while leaving the legal prohibition against possession of other narcotics paraphernalia untouched. In other words, heroin users will get legal protection that users of other, less dangerous illegal drugs will not.
Monday, September 27, 2004
New Motor Vehicle Surcharges are a Tax on the Middle Class
In order to balance the Fiscal Year 2005 Budget, the state government imposed a surcharge of $250 for every conviction for “unsafe driving”. This new surcharge is nothing more than a new tax on ordinary motorists.
It seems that ordinary motorists just can’t catch a break. Four years ago, the legislature passed the “unsafe driving” law, which in practice allows motorists to go to court, contest a traffic summons, and pay a fine without receiving motor vehicle points. No good deed goes unpunished: Now the government has attached a $250 surcharge for each conviction of “unsafe driving”.
Now, any motorist convicted of “unsafe driving” for the first time will walk out of court approximately $380 lighter in the wallet. $250 of that sum goes to the state to pay off long-term bonds. For the most part, the municipal court judges don’t like this law, the municipal prosecutors don’t like this law and the police don’t like this law.
The New Jersey Bar Association has stated, and I agree, that this surcharge is nothing more than a tax on the middle class. The surcharge is not designed as a punishment. After all, it is higher than the surcharge on drivers with six or more points. The surcharges collected over the next generation will be dedicated to balancing the state budget for this fiscal year.
Sadly, the “unsafe driving” surcharge is now a fact of life in municipal court.
Wednesday, September 22, 2004
The Penalties for Driving Without Liability Insurance are Unconstitutional
The law that penalizes New Jersey motorists for driving without liability insurance violate the Equal Protection Clause of the United States Constitution, and should be struck down by the courts. Anyone charged with this offense should consider raising this issue in their defense.
Out of every fix of the New Jersey auto insurance system, a new problem grows. In an effort to help the less fortunate drivers, the state has created a privileged class of drivers who are exempt from the liability insurance requirement based upon their economic status. As such, the penalties for driving without liability insurance violate the Equal Protection Clause of the United States Constitution.
New Jersey law requires motorists to carry minimum levels of insurance to cover them when they do damage to the person or property of another in a motor accident. This is known as liability insurance, and is very expensive in New Jersey.
This year, the state created an exception for New Jersey motorists who qualify for and are receiving Medicaid benefits. Under this exception, Medicaid beneficiaries can purchase special “Dollar-a-Day” insurance. The special insurance specifically does not include the liability insurance that the average motorist is required to pay for at great cost.
In other words, who qualify for the “Dollar-a-Day” insurance are exempt from the harsh penalties that flow from a conviction for driving without liability insurance. (Mandatory minimum of one year license suspension.) Their exemption is based on their economic status. Therefore, it is unconstitutional.
This issue must be addressed before more New Jersey motorists are unfairly subjected to the heavy penalties for driving without liability insurance.