Please take notice that as of August 1, 2011, the law regarding driving with a suspended license, N.J.S.A. 2C:40-26, has changed.
It will now be a crime of the 4th degree if a person drives with a suspended license if the license was suspended for either a first or second violation of Driving While Intoxicated. If you are convicted under this amended the law, the court must sentence you to a term of imprisonment of no less than 180 days, during which you will not eligible for parole.
In State v. Murphy, 412 N.J. Super. 553 ( App. Div. 2010), the defendant had been charged and convicted of possession of CDS. The defendant appealed alleging that the prosecutor has made improper remarks during her closing statement and that the trial court had erred when it permitted the prosecution to impeach the credibility of the defendant using a 17 year old conviction.
In her closing statement, the prosecutor personally vouched for the credibility of the officer who testified against the defendant, indicating that he had no reason to lie in his testimony. When defense counsel objected to the remarks, the trial judge said, in full hearing of the jury, that the remark was a “fair comment” on the evidence. The Appellate Division noted that when reviewing allegedly improper remarks, the court must evaluate the prosecutor’s remarks in the context of the tenor of the trial and the degree of responsiveness of both counsel and the court to the improprieties when they occurred in order to determine when the defendant was denied a fair trial. The Appellate Division found that the remark was improper and was not a harmless error. Because the judge called the remark a “fair comment,” the jury may have been improperly influenced in their determinations of credibility and since the trial essentially would be decided on the basis of credibility of witnesses, this was not simply a harmless error.
The 17 year old conviction was for possession of CDS with intent to distribute. Since the old conviction was so similar to the case at hand, the trial judge sanitized the conviction and only allowed the State to elicit the fact of the conviction, the degree of the crime, and the date of the conviction. The Appellate Division found that the previous conviction did not meet the “serious crimes” standard set out in State v. Sands, 76 N.J. 127 (1978). Under N.J. Rule of Evidence 609, the probative value of the conviction was vastly outweighed by its prejudicial value. Again, because the outcome of the trial would be decided by determinations of credibility, the erroneous admission of the previous conviction was not a harmless error.
The U.S. Supreme Court is wrestling with a case that could give police greater power to forcibly enter a home without a warrant.
The Constitution bars warrantless searches except in certain circumstances — for example, an emergency search to prevent the destruction of evidence. But on Wednesday, the question before the court was whether police, by themselves creating such exigent circumstances, are unconstitutionally evading the warrant requirement.
The case before the court began in 2005 when Lexington, Ky., police banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and fearing the destruction of evidence, they broke in. Inside they found Hollis Deshaun King smoking marijuana. Police also found marijuana and cocaine on the kitchen counter. King was convicted of drug trafficking and related offenses.
But the Kentucky Supreme Court reversed the conviction. The state court ruled that the drugs found in the apartment could not be used as evidence against King because police had no warrant for the search, and the only emergency circumstances were those created by the police themselves when they loudly alerted the suspect to their presence.
Prosecutors appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.
Kentucky Assistant Attorney General Joshua Farley told the justices that since the smell of marijuana gave police probable cause to believe a crime was occurring in the apartment, and since police heard movement inside after they knocked, they lawfully broke in to prevent the evidence from being destroyed.
Chief Justice John Roberts tested Farley's theory. "So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs." Can police every two weeks "walk through and knock on every door" and break in when they hear movement inside? "Is that all right?"
Farley responded that it would be all right as long as police had separate probable cause to believe a crime was occurring. In this case, he said, the probable cause was the smell of marijuana.
Justice Ruth Bader Ginsburg asked whether this meant that police could merely "sniff at every door," knock on those doors where they smelled marijuana, and break in once they heard a noise.
It "would be perfectly fine for the officers to do that," Farley responded.
Fourth Amendment Issue
But Ginsburg noted that the smell of marijuana would be enough to get a warrant. "We start out with a strong presumption that the Fourth Amendment requires a warrant," she observed. Why wouldn't the police just get a warrant, she asked, rather than knocking on the door and alerting the people inside?
Justice Antonin Scalia pointed out that if the suspects had quickly answered the door and simply refused to permit entry, the police would have been powerless to do more. "The police," he said, "were taking advantage of the stupidity of the criminals."
Justice Elena Kagan worried that allowing police to create exigent circumstances would be "essentially eviscerating the warrant requirement in ... the one place that the Fourth Amendment was most concerned about."
"[I]f there is one place where the warrant requirement has real force," she said, "it's in the home." Without a warrant, she suggested, "all the police really have to say is: 'We saw pot, we heard noise,' " and they would be able to break in.
Kentucky public defender Jamesa Drake, arguing on behalf of the defendant, urged the court to consider the consequences for all citizens if the warrant requirement is diluted.
"There is no difference between what happened in this case and how an innocent person would respond," she said, noting that police had banged on the door loudly at 10 p.m., and all they heard inside was movement — a noise that she seemed to suggest did not necessarily indicate the destruction of evidence.
But Drake seemed unable to persuade the justices that she had a workable rule to supplant the broad one suggested by prosecutors. And she struggled to draw a distinction between this case and what she saw as genuinely exigent circumstances that justify a warrantless search.
A decision in the case is expected by summer.
