Tuesday, September 3, 2013

Discovery Rule does Not Excuse Violation of the Two-Year Statute of Limitations

36-2-1081 Zurich American Insurance Company v. Abbud, App. Div. (per curiam) (13 pp.)  
The appellate panel affirms, finding the discovery rule inapplicable. It is clear that on August 19, 2005, the facts known to plaintiff were sufficient to start the statute of limitations running. Because plaintiff knew that Bill had been injured, and knew the identity of the responsible party, the trial judge correctly held that the discovery rule did not excuse violation of the two-year statute of limitations.   What the court is saying here is that an attorney who is hired by a client must investigate all aspects of the client's case pursuant to the Rules of Professional Conduct to protect the client's interest. The 'discovery rule' identified the moment when the attorney knew or should have known that a viable claim has arisen on behalf of the client.  This longstanding principle was first established in Lopez vs. Lopez.   Plaintiff Zurich American Insurance Company, a worker's compensation insurer, as a subrogee of Daniel Bill, appeals from the grant of defendants' summary judgment motion which dismissed plaintiff's medical malpractice complaint because it was filed beyond the applicable statute of limitations. Plaintiff contends that the "discovery rule," should apply to toll the limitations period. Alternatively, plaintiff argues that it properly employed the fictitious party rule, and its second and third amended complaints naming certain defendants for the first time related back to the timely-filed original complaint, thus avoiding application of the limitations period.  Now because the court has ruled that the attorney was aware of the injury and the identity of the responsible party, that attorney committed malpractice when s/he did not name then directly in the initial law suit. 
Submitted New Jersey Attorney, Jeffrey Hark.

Monday, August 19, 2013

New Jersey Assembly Introduces a Bill Which Expands Implied Consent Statute to Include Blood And Urine Testing

A4284 – S2939 Expands Implied Consent Statute to Include Blood And Urine Testing.

            On June 24, 2013 the New Jersey Assembly introduced a bill to expand the implied consent of motor vehicle operators to include blood and urine testing. The bill would amend P.L.1966, c.142 which currently on includes breath. The bill is aimed at giving police more tools when a driver is suspected of driving while intoxicated. The driver would be given a copy of all the information resulting from the breath, blood and/ or urine test. Currently suspected drunk drivers in New Jersey are deemed to have given consent to a breathalyzer test to determine their BAC. Any driver that refuses the breathalyzer is subject to 7-12 months license suspension and a fine of $300-$500 for the first offense; two year suspension and $500-$1000 fine for the second offense; and 10 year suspension and $10,000 fine for the third offense.

A4284 is in response to the recent U.S. Supreme Court ruling Missouri v. McNeely, 569 U.S. ___ (2013), holding police cannot always take warrantless blood tests from suspected drunk drivers under exigent circumstance exception of alcohol dissipating. Suspected drunk drivers could still refuse to give samples and face the consequences in the existing statute outlined above. Police could not forcibly take a sample from a person resisting and pursuant to Section 2(c) of P.L. 1966, c. 142, the suspected drunk driver still has the right to select the person or physician taking the sample.

This amendment if enacted substantial changes the information police would have access to beyond the BAC of the suspected drunk driver. Blood and urine tests would show other influences on the driver, such as, pregnancy, private medical conditions, drugs, both prescription or illegal. Would the blood sample test only be for alcohol? The amendment to the breathalyzer only addresses alcohol, not other substances. And the legislative history states “drunk drivers,” suggesting that if blood and urine samples were used to test for other substances that would be beyond the consented scope of the statute.  The take away, is that if A4284 is enacted, it may infringe on constitutionally protected privacy rights not addressed by the New Jersey Legislator and be constitutionally invalid.

Monday, August 12, 2013

Requirement to Provide Experts

August 12, 2013

Gordon v. Township of Toms River, Appellate Division A-5139-11T1

Requirement to provide experts
Submitted by New Jersey criminal lawyer Jeffrey Hark

August 8, 2013, the Appellate Division affirmed the trial court’s summary judgment against the plaintiff Richard Gordon. On September 27, 2009, Gordon had a few drinks that evening on the Seaside Heights Boardwalk and decided to sleep on the couch at his ex-girlfriend’s home. Upon arrival, he discovered she was not home and called her 14 times, receiving no response he entered the house through the bedroom window. When the plaintiff’s ex-girlfriend returned, she saw his vehicle parked outside and called police. The police arrived with their K-9 officer, Boris and went inside the home. Police made the “K-9 Announcement” and received no response. After a reasonable amount of time Boris was released and apprehended the plaintiff by biting him in his buttocks, right shoulder, left thigh and left calf. The plaintiff was charged with burglary, harassment, stalking and trespassing.

Pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, the plaintiff alleged excessive force and negligence by the police in handling of the K-9 officer. Defendants moved for summary judgment on two arguments 1) the scarring by the dog bites were not substantial within the meaning of N.J.S.A. 59:9-2(d) and; 2) plaintiff failed to provide expert opinion necessary to establish negligent handling of the K-9 unit. At trial, the judge accepted the medical expert testimony that the dog bites resulted in significant scarring. The plaintiff did not present an expert on proper K-9 unit procedure and the judge thought this was a significant issue. The judge did not think a jury could pass judgment on proper police procedure without a qualified expert and provided the plaintiff an additional 30 days to find an expert. Plaintiff did not provide an expert on police procedure.

The Appellate Division affirmed the trial court’s decision that the plaintiff needed to present an expert on police procedure. Whether or not an expert is required is established in Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), as to if the matter to be decided is so esoteric that jurors cannot form a valid judgment based on their common experience alone. The plaintiff in this case needed an expert on proper police procedure, his allegation of negligence alone was not sufficient. When most citizens have no personal knowledge of the subject matter at issue, such as how police should conduct themselves and their K-9 units, an expert is helpful to the jury to decide an issue which otherwise would be impossible for the jury to decide. The take away is that already high use of experts in litigation is not going to change in the future.

Thursday, August 8, 2013

“third-party intervention” exception or “private search” doctrine

State v. Wright, Appellate Division A-4813-10T1

“third-party intervention” exception or “private search” doctrine

July 25, 2013, the Appellate Division affirmed the conviction of a defendant based on evidence obtained under the “third-party intervention” doctrine where police can search a defendant’s property without a warrant, as long as they are within the scope of the private actor’s intrusion. On March 30, 2009, the defendant’s girlfriend had given the landlord permission to enter the property to repair a leaky pipe causing damage in the kitchen and master bedroom. The landlord saw drugs in the bedroom and immediately called the police. Police arrived at the property and observed the leak and the drugs without seizing or searching anything. The tenant, the defendant’s girlfriend, was contacted while police were posted at the bedroom and entrance to the property to preserve evidence. When the girlfriend arrived, she was read her Miranda rights and consented to a search of the property. Police found marijuana, cocaine, a scale, sandwich bags, baking soda, a Pyrex plate with powder residue, a handgun in a backpack, hollow point round and a bag of one hundred bullets. At trial the defendant’s girlfriend denied giving the landlord permission to enter and stated she only consented to a police search because she was scared they would call DYFS.

At trial the judge did not find the defendant’s girlfriend to be a credible witness and that she was attempting to exculpate the defendant who fathered their child and controls her in a domineering relationship. The landlord had a right to be on the property and when the police entered the property they were within the “third-party intervention” exception to the Fourth Amendment’s warrant requirement. Based on the credibility findings at trial, the record shows no violation of the tenant’s privacy rights. The significant fact the court points to in application of the “third-party intervention” exception is that the police did not go beyond the physical scope of the landlord’s entry until they had the tenant’s consent. Therefore the Appellate Division agreed with the trial judge that the warrantless police search was constitutionally valid and affirmed the defendant’s conviction.

In upholding the conviction, the Appellate Division emphasizes the Fourth Amendment is protection from the government, not searches by private citizens. Hence the “third-party intervention” being synonymous with the “private search” doctrine. In Walter v. United States, 447 U.S., 649 (1980), the U.S. Supreme Court found no Fourth Amendment violation by the FBI’s receipt of films from a private party. When a private citizen, such as a landlord, searches a property he is motivated by reasons other than securing a criminal conviction. When that private individual is not acting in an illegal manner and his conduct is a reasonably foreseeable intrusion of privacy that conduct will not be a violation of the Fourth Amendment, therefore information resulting from that conduct in not in violation of the Fourth Amendment. Information obtained from the “private search” can be transmitted to police; however police are limited to only the initial discovery by the private party. Additional discovery by police beyond the private individual’s initial discovery requires the police have a warrant or consent.

Tuesday, August 6, 2013

New texting and mobile phone restrictions for commercial motor vehicle (CMV) drivers

Original article posted by the US Department of Transportation:
New Rule: Mobile phone use restricted for CMV drivers. New Rule: No texting while operating a CMV. No Call, No Text, No Ticket.
New Rule: Mobile phone use restricted for CMV drivers. New Rule: No texting while operating a CMV. No Call, No Text, No Ticket.

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What You Need to Know

New texting and mobile phone restrictions for commercial motor vehicle (CMV) drivers

The FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) have published rules specifically prohibiting interstate truck and bus drivers and drivers who transport placardable quantities of hazardous materials from texting or using hand-held mobile phones while operating their vehicles. The joint rules are the latest actions by the U.S. Department of Transportation to end distracted driving. Violations can result in fines and/or disqualifications and will impact a motor carrier’s and/or driver’s Safety Measurement System (SMS) results.

No texting while driving

CMV drivers are prohibited from texting while driving. So what qualifies as texting? Texting means manually entering alphanumeric text into, or reading text from, an electronic device. This includes, but is not limited to, short message service, e-mailing, instant messaging, a command or request to access a Web page, or pressing more than a single button to initiate or terminate a voice communication using a mobile phone. (Click here for final rule)
Do not type or read a text message while driving a CMV!

Use of mobile phones is restricted for CMV drivers

This ruling restricts a CMV driver from reaching for or holding a mobile phone to conduct a voice communication, as well as dialing bypressing more than a single button. CMV drivers who use a mobile phone while driving can only operate a hands-free phone located in close proximity. In short, the rule prohibits unsafely reaching for a device, holding a mobile phone, or pressing multiple buttons. (Click here for final rule)

How can drivers use a mobile phone and still obey the rules?

  • Locate the mobile phone so it is operable by the driver while restrained by properly adjusted safety belts.
  • Utilize an earpiece or the speaker phone function.
  • Use voice-activated or one-button touch features to initiate, answer, or terminate a call.
It's very easy to comply with the new rules: No REACHING, No HOLDING, No DIALING, No TEXTING, No READING.

What happens if a driver is caught using a hand-held phone or texting while driving?

The rules impose sanctions for driver offenses, including civil penalties up to $2,750 and disqualification for multiple offenses. Motor carriers are also prohibited from requiring or allowing their drivers to text or use a hand-held mobile phone while driving and may be subject to civil penalties up to $11,000. Violations will impact SMS results. Texting and calling on a hand-held phone carry the worst possible violation severity weights against a driver’s results!

What are the risks?

Besides penalties and possible disqualification, recent research shows that the odds of being involved in a safety-critical event (e.g., crash, near-crash, unintentional lane deviation) are 23.2 times greaterfor CMV drivers who text while driving than for those who do not. Texting drivers took their eyes off the road for an average of 4.6 seconds. At 55 mph, this equates to a driver traveling the approximate length of a football field — without looking at the roadway! For CMV drivers who dial a mobile phone while driving, the odds of being involved in a safety-critical event are six times greater than for those who do not. Why take chances?
BOTTOM LINE: Using a hand held device while driving is a serious traffic violation that could result in a disqualification.
No call, no text, no ticket!
Contact Commercial Truck Accident Lawyer Jeffrey Hark if you have questions regarding this new law.

Sunday, August 4, 2013

Prior Traffic Convictions and Pre-Trial Intervention (PTI)

State v. Sharp, App. Div.    
New Jersey’s Appellate Division recently agreed with a County prosecutor’s office that prior traffic convictions for Driving while Suspended is a correct reason to deny someone from the county’s PTI program.  Mr. Sharp applied for PTI at the county level after he was indicted for driving while suspended after having been previously convicted in municipal court for numerous (4) prior NJSA 39:3-40 driving while suspended charges.  N.J.S.A. 2C:40-26a and b. is a 4th degree criminalization of serial 3:40 defendants while up to 18 months of incarceration. 
After the trial judge Ordered the Prosecutor’s office to admit Mr. Sharp into their PTI program over their objections the state appealed. The appellate panel ruled that the judge erred in finding that the prosecutor's decision to deny defendant PTI admission was a patent and gross abuse of discretion. The court agreed with the prosecutor’s office telling them and all other county prosecutors that defendants with numerous prior 3:40 convictions in municipal court are unacceptable candidates for PTI admission based on their terrible driving records, which indicated a pattern of anti-social behavior and lack of amenability to rehabilitation.  
As a result, this and all other defendants with numerous prior 39:3-40 convictions, whose cases are referred to the county prosecutor’s office for indictment under NJSA 2C:40-26 (a) and (b) are looking at mandatory jail time, probation, and NO entry into their county’s PTI program. 
Submitted by Jeffrey Hark, a new jersey criminal lawyer http://www.harklawnj.com/

Monday, July 29, 2013

Drunk Driving Defense - Mid Trial Discovery Admitted

Published by New Jersey DWI Lawyer, Jeffrey Hark.
June 28, 2013, the Appellate Division affirmed the drunk driving conviction where defendant unsuccessfully sought suppression of an Alcohol Influence Report (AIR) because it was submitted after discovery ended. The defendant was appealing his August 12, 2012 conviction for violation of driving while intoxicated (DWI) pursuant to N.J.S.A. 39:4-50 and sentenced to the minimum mandatory penalties for a second offender pursuant to N.J.S.A. 39:4-50(a)(2). On May 19, 2010, defendant was stopped for speeding and the officer smelled alcohol. After a field sobriety test, the defendant was taken to the police station and given a breathalyzer. Defendant had a BAC of 0.12 percent.

Alcohol Influence Report Admitted Mid Trial

At trial the State did not timely provide complete discovery of the Alcohol Influence Report and defense council moved to have any evidence not previously provided precluded. The defense’s specific objection was that the defense was forced to supply information to the State regarding the fatal weakness to which the State was then allowed to cure the deficiency. The judge allowed the State to introduce a foundational witness and a certificate of analysis for the AIR. The Appellate Division found no legal authority for the defendant’s argument that the court was required to exclude evidence based on the State’s failure to present it timely. When evidence is admitted mid trial, there are two factors to consider: 1) did the party have the intention to mislead by not providing it earlier, and 2) is the aggrieved party prejudiced by the inability to contest the evidence because of the late notice.

Without a showing of prejudice to the defense, a blanket order to preclude further discovery is appropriate. The trial judge did not abuse his discretion by allowing the State to provide the foundational document for the AIR and the police officer to authenticate the document. The defendant did not cite any case law that requiring defense council to specify what foundational documents were lacking violates the defendant’s Fifth Amendment rights, N.J.S.A. 2A:84A-17 or N.J.R.E. 501, 502, and 503. The defendant’s argument that they assisted the State with their case because the defendant had to point out the deficiencies does not support that defense of the defendant was impaired. The defense council would not have done anything different in preparation for the case had there been a complete discovery.