Wednesday, October 10, 2018

A4292 is Protection for Car Dealers at Your Expense

Assembly Bill A-4292 came to my attention today. Although it is not one of the topics I typically write about, I feel it is important for people to understand this harmful legislation. Introduced in June 2018, this bill requires auto dealerships to notify buyers of recalls on used motor vehicles for sale. That part is ok but what comes next is not palatable for consumers. The second main feature of this Bill is the limitation on attorneys’ fees in consumer fraud actions against car dealers. My first thought was that the person pointing this out to me was an attorney who makes a good living representing consumers against car dealerships under the current statute which allows for treble damages and counsel fees. My second thought was of the individuals I have represented in consumer fraud actions against car dealers. Car dealers have attorneys representing them and it is just part of the cost of doing business. Car manufacturers also have big corporate attorneys who come in to represent them. First they bring the local “big guns” and then they bring in the real “big guns” from Detroit if they lose the summary judgment motion to get out of the case. Without the car manufacturer pressuring the dealership to settle, the dealership will fight to the end to protect their reputation in their territory at great expense to the defrauded consumer. Whether it is on a contingency fee basis or through the recovery of attorneys’ fees to pay back their litigation expenses, the provision for attorneys’ fees to the consumer under the Consumer Fraud Act is often the only way a consumer can afford to fight a car dealership when a car is not sound or when they are defrauded by a dishonest dealer. I have represented individuals who would have been left with a non-working vehicle and no way to fight if they did not have a reasonable degree of certainty they would recover counsel fees at the end of the case. A-4292 still provides for compensatory damages and does permit treble damages in certain instances but it limits attorney fees to “up to $1,000 or up to one third of the amount of damages awarded to the person in interest, at the discretion of the court…” What this could mean to a consumer is that if they purchased a vehicle that suddenly became inoperable and the dealership refused to repair it based on some limited liability theory, they could sue the dealership, and sometimes the car manufacturer, and the court may award them a replacement vehicle to make them whole after litigation. After fighting summary judgment motions against the dealership and the manufacturer’s “big guns” and then going through negotiations or trial, they can find themselves with a legal bill exceeding the value of the car that was replaced. If the consumer knows that they will get only $1,000 or even one third of the amount of damages awarded, that means that, unless they received a replacement vehicle and additional punitive damages award from the court, they may have a bill for legal fees that exceeds the value of the vehicle. In summary, A-4292 serves to limit the opportunity for the consumer to sue a car dealership or manufacturer and offers a layer of protection for dealerships exercising bad practices. There are other certain presumptions created under A-4292 that are favorable to the dealerships and adverse to consumers. The Consumer Fraud Act was created to protect you from bad practices of car dealers and others. To limit its scope is to diminish the bargaining power of the consumer. For more information about legal issues, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Friday, September 28, 2018

Strong Push for Municipal Court Reform

Municipal court reform in New Jersey has been a topic for some time as the municipal court system funnels large sums of money into towns from residents and often those passing through. Now Chief Justice Stuart Rabner is pushing hard to change the way business is done in municipal courts. The push includes the issue of municipal judge appointments as well, due to the belief that municipal court judges are often appointed based on political contributions they have made to the mayor's campaign. Some long-discussed matters have included consolidation of municipal courts, changing the appointment process for judges and separating the imposition of penalties from the collection of fines. One proposal is the creation of qualification committees in each county for the vetting of candidates for municipal judge. One proposal includes an evaluation by the vicinage judge presiding over municipal courts, a representative of the municipality where the judge would be seated and two members of the county bar association who practice in municipal court. the League of Municipalities has been outspoken about the loss of local perspective in court appointments. Those seeking reform have posed that towns submitting qualified candidates have nothing to fear from the reform. The Asbury Park Press and USA Today undertook and investigation into local court abuses, the report was a major catalyst for the reform movement. A panel has been assembled including prosecutors, public defenders and private defense counsel, judges, state agencies, public interest groups and members of each branch and layer of government. State Attorney General, Gubir Grewal hopes to improve the uniformity in municipal courts. If you are facing loss of license or significant fines in municipal court, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving, driving while suspended or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Monday, September 24, 2018

Anti-Bullying and Free Speech Separated By Unclear Line

A Hackettstown student used a derogatory comment for a police officer during a class discussion and under the State's Harassment, Intimidation and Bullying (HIB) policy, was suspended for one day after a hearing. The student then sued the school for violating her right to free speech. Additionally, in the suit, the practices of the school administration were called into question as, when discussing the matter with the student, school officials allegedly likened the student's comments to epithets regarding race and sexual orientation. The comments by the student were made during a discussion in school relating to police interactions with minorities. The HIB statues are broadly construed to include characteristics such as height, physical fitness and other characteristics not typically encompassed in workplaces and other settings where similar statutes are applied. The remark was made about a fictional officer and did not pertain to anyone present. One student present is the child of a police officer and found the comment offensive. The question at hand is whether a student may express their views when other students may find those views hurtful or insensitive to the degree that they would violate the HIB statutes. Although an argument could be made that HIB statutes may be misused to punish political speech by students, such an argument could be made only after the speech, political or otherwise, was found offensive by another student or the administration. The within matter, a hostile education environment claim under Title VI of the Council Rights Act of 1964, claiming violations of the First Amendment and ther Law Against Discrimination remains pending in federal court. This is not the first time that New Jersey's Anti-Bullying Bill of Rights Act has conflicted with freedom of speech rights. Courts have found mixed results in these cases including throwing out a suit by a teacher who was reprimanded for a violation and upholding the schools right to suspend a student who posted on social media about school related matters. In denying a motion to dismiss, filed by Hackettstown School District, U.S. District Court Judge found merit in the student's claims of infringement of her rights and claims against the administration for creating a hostile environment. Others find the statute to be much more clear and believe that if the harassment, intimidation and bullying statutes apply, then the First Amendment protections claimed by the student must yield to the statute. A significant prong in the analysis is whether the behavior in question actually touches the school. Due to claims of vagueness, new regulations relating to the HIB statute were adopted by the NJ State Department of Education which afforded greater discretion to principals but some believe greater clarification is required regarding the intersection of anti-bullying laws and the First Amendment. If your child has been bullied and it is not being taken seriously or your child is accused of violating anti-bullying statutes, visit DarlingFirm.com or contact us for assistance.

Thursday, September 20, 2018

Judge Charged With DUI is Censured

Municipal Court Judge Wilfredo Benitez attempted to talk his way out of a driving under the influence arrest by wielding the power of his office. Now Benitez is barred from presiding over DUI matters until September 7, 2019, although he remains a municipal court judge in East Orange and Belleville. Benitez was arrested in November 2016 when found by New Jersey State Troopers asleep in the driver’s seat of his vehicle on Route 80 West in Teaneck. Upon investigation, Benitez was found to possess bloodshot and watery eyes and the odor of an alcoholic beverage on his breath. After field sobriety tests, the Judge was placed in handcuffs and became belligerent, telling officers that he is a Judge and they were wasting their time. The Advisory Council on Judicial Conduct (“ACJC”) filed a complaint due to Benitez representation that he was a Judge to win favor with the police. The ACJC found mitigating factors in that there was no prior history of such behavior in a lengthy career and aggravating factors in Benitez’ insulting language and efforts to degrade the Troopers. The result was the censure of Wilfreo Benitez and a temporary bar from presiding over DWI matters. DUI Charges in NJ will have a serious impact on your life no matter who you are and they can have significant implications in related matters. If you are charged with Driving Under the Influence in NJ, you should seek an experienced attorney immediately to protect your rights. For more information about DUI, reckless driving or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Tuesday, September 18, 2018

Prosecutorial Discretion vs. Decriminilization of Marijuana

N.J. Attorney General Gurbir Grewal issued a directive permitting prosecutorial discretion in “minor” pot cases, but cautions against ideas of decriminalization. According to the Attorney General, prosecutors who find evidence lacking or special circumstances which would make sentencing too harsh have discretion to dismiss cases involving use or possession of small quantities of marijuana. Grewal has been meeting with civil rights groups, prosecutors, members of law enforcement, attorneys and multiple community organizations, presumably to determine what the best middle ground is to satisfy the outspoken. At the same time, the Legislature continues to move toward legalization of marijuana for recreational use. Not knowing when the Legislature will take action, the Attorney General determined that pending matters could not be stayed indefinitely. Grewal’s directive will yield to the decision of the Legislature once action is taken. As it stands, he has battled against prosecutors ceasing marijuana prosecution no matter the circumstances. The Attorney General does not support vesting individual prosecutors with Legislative powers but he does support prosecutorial discretion. Factors cited by Gurbir Grewal as requiring consideration in the decision of whether to prosecute or dismiss marijuana charges include the Defendant’s criminal record, impact on future employment and professional licensing, age, impact on immigration status, whether future educational opportunities would be impacted and adverse consequences with regard to the defendant’s family or public benefits including housing. The criteria set forth would permit discretion in nearly every matter. Following Grewal’s directive, the American Civil Liberties Union issued a statement calling for legalization based on the apparent limitations of the directive and likelihood for disparity. Drug Charges in NJ will have a serious impact on your life and can have significant implications in related matters. If you are charged with a drug crime in NJ you should seek an experienced attorney immediately to protect your rights. For more information on CDS in a motor vehicle, reckless driving or possession matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Friday, July 20, 2018

One and One Make Two in DUI

James Dougherty was charged with violating N.J.S.A. 2C:40-26(b) for driving while suspended for a second or subsequent conviction or plea to driving while intoxicated (N.J.S.A. 39:4-50) or refusal to submit to chemical breath testing (N.J.S.A. 39:4-50.4(a)). Dougherty, seeking to avoid mandatory jail time, took the position that 2C:40-26(b) required conviction for two charges of refusing to submit to chemical breath testing or convictions for two charges of driving under the influence while Dougherty had only one conviction of each. In August 2015, the Defendant was convicted of DWI for a charge stemming from a February 23, 2009 arrest and was convicted of a refusal in November 2015, for a charge stemming from and arrest on February 4, 2009. While serving the seven month sentence for the refusal charge, the Defendant was stopped by the police while operating a motor vehicle. Dougherty was sentenced to a mandatory term of 180 days in jail, which term was stayed pending appeal. Defendant, relying on State v. Ciancaglini, 204 N.J. 597 (2011), argued that a "second or subsequent violation" under N.J.S.A. 2C:40-26(b) requires two convictions of the same predicate offense, rather than one of each. The Appellate Division found that State v. Ciancaglini does not address the issue head on. However, State v. Frye, 217 N.J. 566 (2014), reaffirms In re Bergwall, 85 N.J. 382 (1981), holding that a prior DUI does enhance a sentence for a refusal conviction. Additionally, the legislative history of the DUI statutes is centered upon the premise of discouraging driving under the influence by including ever increasing penalties for successive offenses. The Defendant's basic premise, from State v. Olivero, 221 N.J. 632, 639 (2015) and In re Estate of Fisher, 443 N.J. Super. 180, 190-195 (App. Div. 2015), that the word "or" should be interpreted as "or" rather than "either/or" is incorrect. When considered in the framework of the history and evolution of DWI laws, becoming ever stricter, there is no question as to the interpretation of the statute to include the word "either". The Appellate Division affirmed the defendant's conviction. If you are facing charges of DUI, whether for alcohol or drugs, you should obtain experienced criminal defense counsel immediately. For more information about DWI, refusal to submit to chemical breath testing, controlled dangerous substances (CDS) in a motor vehicle, reckless driving or other serious motor vehicle charges in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Friday, March 3, 2017

Juvenile's Waiver of Miranda Rights Upheld

D.N., was a 16 year old juvenile when charged with offenses that, if committed by an adult would include second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)); possession of under 50 grams of marijuana (N.J.S.A. 2C:35-10(a)(4)); defiant trespass (N.J.S.A. 2C:18-3(b)) and obstructing the administration of law (N.J.S.A. 2C:29-1(a)). Police responded to a caller saying that D.N. entered a grocery store after being notified he was not permitted to do so and, during a search, located and seized suspected marijuana from D.N.’s person. In the presence of his mother, at the police station, D.N. was read his Miranda rights and invoked his right to remain silent. Weeks later, D.N.’s mother contacted police and advised them that she had found a handgun in a backpack in her residence and, upon their arrival, consented to a search of the backpack. D.N. was taken for questioning upon returning home. The “Juvenile Miranda Warning” form was used to advise D.N. and his mother of D.N.’s rights under Miranda and D.N. and D.N. agreed to speak to the police. D.N. ultimately confessed to that he had made a deal with a gang member wherein he would be paid to deliver the gun to a third party. D.N. moved to suppress the confession and the judge held that D.N. knowingly and voluntarily waived his rights as he had exercised those rights only weeks earlier. In State of New Jersey in the interest of D.N., D.N. pled guilty to second-degree unlawful possession of a handgun, possession of under 50 grams of marijuana, defiant trespass, and obstructing the administration of law and, pursuant to a plea agreement, the State dismissed the weapons charges. D.N. was sentenced to 2 years probation, community service, drug evaluation and participation in a residential treatment program among other conditions. D.N. appealed the denial of his suppression motion. The New Jersey Appellate Division held that the “suspect’s will was not overborne by police conduct” as is the test under State v. Presha, 163 N.J. 304, 313 (2000). Pursuant to State in the Interest of A.S., 203 N.J. 131, 147 (2010), the presence of D.N.’s mother was given considerable weight in favor of voluntariness of the confession as well. In light of prior opinions and the fact that D.N. had knowingly invoked his right to remain silent only weeks prior, the Appellate Division affirmed the decision of the trial judge. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, weapons offenses, possession of marijuana, trespass or other criminal charges in NJ, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.