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SUBJ: Procedures for DWI Sentences Previously Stayed by State v. Chun Order
DATE: March 31, 2008
On March 17, 2008, the Supreme Court issued its opinion in State v. Chun, ____ N.J. ____ (2008), holding that the Alcotest breath testing device (Alcotest) is scientifically reliable to measure blood alcohol content (BAC), subject to certain conditions. At the same time, the Court issued an Order which, among other things, vacated the stay it had previously imposed on the execution of sentences of certain driving while intoxicated (DWI) convictions. This memorandum will provide the municipal courts with guidance on how to proceed with the DWI cases in which the stay of execution of sentence has now been vacated.
Identifying the Affected Cases
In courts in which the police have been using the Alcotest to measure BAC, court staff shall develop a list of all DWI cases in which the sentence had been stayed under Chun. In order to do this, the staff should access, in RMDS, the report entitled “Cases on Appeal” (TFC1740), a monthly cumulative report. The staff should review the cases on that report that show the violation number as N.J.S.A. 39:4-50 (DWI), and the appeal status of “ST” (stayed), to determine whether the sentences of those cases had been stayed under Chun. The most recent version of the “Cases on Appeal” report will be available on April 7, 2008. The court staff shall then provide a list of those cases to the municipal prosecutor and the municipal court judge no later than April 12, 2008.
March 31, 2008
Page -2-
Hearing
For those identified cases, the municipal court judge shall schedule court dates as promptly as possible. The court staff shall send notice of the hearing by ordinary mail to defendant and to defense counsel, if any. The staff must also give notice of the hearing date to the municipal prosecutor. The municipal prosecutor, defendant, and defense counsel, if any, must appear at the hearing, which shall take place in open court. At the hearing, the “State shall . . . produce a calculation, in a form consistent with Worksheet A . . . [attached to the opinion in State v. Chun], that ensures that the two [breath] samples meet the acceptable range of tolerance . . . . “ March 17, 2008 Supreme Court Order, State v. Chun, par. 1A(1)(a). Further, “the court shall verify the accuracy of the State’s calculations and . . . make the calculation a part of the record to facilitate further review.” March 17, 2008 Supreme Court Order, State v.Chun, par. 1A(1)(b).
The judge, after verifying the worksheet, must, at the hearing, again inform defendant of the sentence that had been imposed, collect defendant’s driver’s license or licenses, and inform defendant, orally and in writing, of the enhanced penalties for subsequent DWI violations, the penalties for driving while suspended, and the penalties for failing to satisfy the requirements of the Intoxicated Driving Program Unit, even if this information was previously given to defendant at the initial sentencing hearing. N.J.S.A. 39:4-50(b) and (c). However, if defendant or defense counsel raises facially meritorious issues calling into question the admissibility of defendant’s Alcotest reading under Chun, the judge may ask the parties to brief the issues, so that the judge may give the issues thoughtful and deliberate consideration.
Recording Sentence and Notifying the Motor Vehicle Commission
and the Intoxicated Driving Program Unit
Once the sentence has been executed, the court staff must update the ATS system with return appeal (RA). If the sentence imposed is different than the sentence originally imposed and stayed, the court staff must modify the disposition in ATS accordingly. All sentences executed at these hearings, whether modified or not, must be sent to the Motor Vehicle Commission. Instead of sending out a manual MF1 card, the staff should screen print the ATS disposition screen and mail it to:
The Motor Vehicle Commission
225 East State Street
PO BOX 134
Driver Management: Authorization Unit
Trenton, NJ 08666
Attention: Dennis Maddalena
This address is dedicated solely to this purpose.
March 31, 2008
Page -3-
For every affected case, the court must forward an “Order and Certification, Intoxicated Driving and Related Offenses,” detailing the sentence and signed by the defendant, to the Intoxicated Driving Program Unit, even if the court had previously sent one.
Defendant’s Failure to Appear
If defendant fails to appear at the scheduled hearing date, the court may proceed under R. 7:2-2(c) and R. 7:8-9 with suspending defendant’s driver’s license or issuing a warrant. Judges should keep in mind, however, before taking such actions, that some of the affected cases are, by now, over two years old, and defendant thus may have changed address since the last hearing date.
Training for Judges
Judges are reminded that the Administrative Office of the Courts has scheduled three trainings on “Alcotest and State v. Chun Update” on April 22, May 13 and June 27, 2008. All municipal court judges are required to attend one of these three sessions. These trainings will include a comprehensive discussion of the State v. Chun opinion.
If you have questions regarding this policy, please feel free to contact Robert W. Smith, Assistant Director, at (609) 984-8241.
c: Chief Justice Stuart Rabner
Attorney General Anne M. Milgram
Sharon A. Harrington, Chief Administrator, MVC
Ann Wanamaker, Acting Chief, IDP
Assignment Judges
Trial Court Administrators
AOC Directors and Assistant Directors
Presiding Judges—Municipal Court
Municipal Division Managers
John Dell’Aquilo, D.A.G.
Dennis Maddalena
John P. McCarthy, Jr., Director
Steven D. Bonville, Special Assistant
Robert W. Smith, Assistant Director
Lawrence E. Walton, Chief
John Podeszwa, Chief
Debra Jenkins, Chief
Carol A. Welsch, Esq.
DATE: March 31, 2008
On March 17, 2008, the Supreme Court issued its opinion in State v. Chun, ____ N.J. ____ (2008), holding that the Alcotest breath testing device (Alcotest) is scientifically reliable to measure blood alcohol content (BAC), subject to certain conditions. At the same time, the Court issued an Order which, among other things, vacated the stay it had previously imposed on the execution of sentences of certain driving while intoxicated (DWI) convictions. This memorandum will provide the municipal courts with guidance on how to proceed with the DWI cases in which the stay of execution of sentence has now been vacated.
Identifying the Affected Cases
In courts in which the police have been using the Alcotest to measure BAC, court staff shall develop a list of all DWI cases in which the sentence had been stayed under Chun. In order to do this, the staff should access, in RMDS, the report entitled “Cases on Appeal” (TFC1740), a monthly cumulative report. The staff should review the cases on that report that show the violation number as N.J.S.A. 39:4-50 (DWI), and the appeal status of “ST” (stayed), to determine whether the sentences of those cases had been stayed under Chun. The most recent version of the “Cases on Appeal” report will be available on April 7, 2008. The court staff shall then provide a list of those cases to the municipal prosecutor and the municipal court judge no later than April 12, 2008.
March 31, 2008
Page -2-
Hearing
For those identified cases, the municipal court judge shall schedule court dates as promptly as possible. The court staff shall send notice of the hearing by ordinary mail to defendant and to defense counsel, if any. The staff must also give notice of the hearing date to the municipal prosecutor. The municipal prosecutor, defendant, and defense counsel, if any, must appear at the hearing, which shall take place in open court. At the hearing, the “State shall . . . produce a calculation, in a form consistent with Worksheet A . . . [attached to the opinion in State v. Chun], that ensures that the two [breath] samples meet the acceptable range of tolerance . . . . “ March 17, 2008 Supreme Court Order, State v. Chun, par. 1A(1)(a). Further, “the court shall verify the accuracy of the State’s calculations and . . . make the calculation a part of the record to facilitate further review.” March 17, 2008 Supreme Court Order, State v.Chun, par. 1A(1)(b).
The judge, after verifying the worksheet, must, at the hearing, again inform defendant of the sentence that had been imposed, collect defendant’s driver’s license or licenses, and inform defendant, orally and in writing, of the enhanced penalties for subsequent DWI violations, the penalties for driving while suspended, and the penalties for failing to satisfy the requirements of the Intoxicated Driving Program Unit, even if this information was previously given to defendant at the initial sentencing hearing. N.J.S.A. 39:4-50(b) and (c). However, if defendant or defense counsel raises facially meritorious issues calling into question the admissibility of defendant’s Alcotest reading under Chun, the judge may ask the parties to brief the issues, so that the judge may give the issues thoughtful and deliberate consideration.
Recording Sentence and Notifying the Motor Vehicle Commission
and the Intoxicated Driving Program Unit
Once the sentence has been executed, the court staff must update the ATS system with return appeal (RA). If the sentence imposed is different than the sentence originally imposed and stayed, the court staff must modify the disposition in ATS accordingly. All sentences executed at these hearings, whether modified or not, must be sent to the Motor Vehicle Commission. Instead of sending out a manual MF1 card, the staff should screen print the ATS disposition screen and mail it to:
The Motor Vehicle Commission
225 East State Street
PO BOX 134
Driver Management: Authorization Unit
Trenton, NJ 08666
Attention: Dennis Maddalena
This address is dedicated solely to this purpose.
March 31, 2008
Page -3-
For every affected case, the court must forward an “Order and Certification, Intoxicated Driving and Related Offenses,” detailing the sentence and signed by the defendant, to the Intoxicated Driving Program Unit, even if the court had previously sent one.
Defendant’s Failure to Appear
If defendant fails to appear at the scheduled hearing date, the court may proceed under R. 7:2-2(c) and R. 7:8-9 with suspending defendant’s driver’s license or issuing a warrant. Judges should keep in mind, however, before taking such actions, that some of the affected cases are, by now, over two years old, and defendant thus may have changed address since the last hearing date.
Training for Judges
Judges are reminded that the Administrative Office of the Courts has scheduled three trainings on “Alcotest and State v. Chun Update” on April 22, May 13 and June 27, 2008. All municipal court judges are required to attend one of these three sessions. These trainings will include a comprehensive discussion of the State v. Chun opinion.
If you have questions regarding this policy, please feel free to contact Robert W. Smith, Assistant Director, at (609) 984-8241.
c: Chief Justice Stuart Rabner
Attorney General Anne M. Milgram
Sharon A. Harrington, Chief Administrator, MVC
Ann Wanamaker, Acting Chief, IDP
Assignment Judges
Trial Court Administrators
AOC Directors and Assistant Directors
Presiding Judges—Municipal Court
Municipal Division Managers
John Dell’Aquilo, D.A.G.
Dennis Maddalena
John P. McCarthy, Jr., Director
Steven D. Bonville, Special Assistant
Robert W. Smith, Assistant Director
Lawrence E. Walton, Chief
John Podeszwa, Chief
Debra Jenkins, Chief
Carol A. Welsch, Esq.
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