Ken Vercammen's NJ Laws email newsletter January 24, 2004 #145 In this issue: 1. New DWI law reduces Alcohol level to .08 and increases some penalties 2. Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks 3 CONDITIONAL DISCHARGE OF FIRST TIME OFFENDER DRUG CHARGES 4 Prepare Power of Attorney to Permit Access to Family Medical Information _______________________ 1. New DWI law reduces Alcohol level to .08 and increases some penalties On January 20, 2004, the governor signed into law two significant amendments to the New Jersey drunk driving statutes, each of which significantly affects sentencing. The first of these, Assembly Bill A682 amends N.J.S.A. 39:4-50(a) to provide that a person who operates a motor vehicle or permits another to do so with a blood alcohol concentration (BAC) of at least 0.08% is guilty of drunk driving. The amendment will be commonly referred to as Florence's Law. It was enacted by the Legislature largely in response to federal legislation that conditions the receipt of highway safety funds based upon a voluntary adoption by the states of a minimum 0.08% BAC level to establish the offense of drunk driving. As will be seen below, the new law will primarily affect the sentencing of first offenders. The second amendment was contained in Assembly Bill A3342. This bill, known as Michael's Law is intended to provide for mandatory jail terms for third or subsequent offenders. [above received from Atty2starz] ____________________ 2. Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon. The law imposes upon the owner of commercial or business property the duty to use reasonable care to see to it that the sidewalks abutting the property are reasonably safe for members of the public who are using them. In other words, the law says that the owner of commercial property must exercise reasonable care to see to it that the condition of the abutting sidewalk is reasonably safe and does not subject pedestrians to an unreasonable risk of harm. The concept of reasonable care requires the owner of commercial property to take action with regard to conditions within a reasonable period of time after the owner becomes aware of the dangerous condition or, in the exercise of reasonable care, should have become aware of it. If there was a condition of this sidewalk that was dangerous in that it created an unreasonable risk of harm for pedestrians, and if the owner knew of that condition or should have known of it but failed to take such reasonable action to correct or remedy the situation within a reasonable period of time thereafter as a reasonably prudent commercial or business owner would have done under the circumstances, then the owner is negligent. If you are injured, after seeking medical treatment and advising the store/ mall, CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 For an Appointment __________________ 3 CONDITIONAL DISCHARGE OF FIRST TIME OFFENDER DRUG CHARGES By Kenneth Vercammen, Trial Attorney The defense of a person charged with possession of drugs or drug paraphernalia is not impossible. Attorneys should not merely suggest that their client plead guilty to save a few dollars. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with controlled dangerous substances (CDS). The Municipal Courts in New Jersey have jurisdiction to hear the following drugrelated offenses: NJSA 2C:510(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:3510(b), using or being under the influence of CDS; NJSA 2C:3510(c), failure to deliver CDS to police; NJSA 2C:362, possession of drug paraphernalia. N.J.S.A. 2C: 36A1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:2127 (Old Drug Law CD), 2C:4312 (PTI) or 2C:36Al (conditional discharge) may apply for a conditional discharge. The defense attorney can make a Motion, upon notice to the prosecutor and subject to 2C:36Al(c) for first offenders to suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). This is Motion For Conditional Discharge. Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. The court further has the option to suspend a defendant's driver's license for between six months and two years. The conditional discharge period is also between one year and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. CONCLUSION Narcotics and Drug related offenses carry substantial penalties which will effect your client for the rest of his life. The space limits of this article do not allow detailed explanation of the extensive caselaw on Narcotics. Drug law and other defenses are explained in greater details in other articles on www.njlaws.com. Good luck! ___________________________________ 4 Prepare Power of Attorney to Permit Access to Family Medical Information If you haven't yet updated your Living Will power of attorney to reflect current federal privacy rules, it's time to do so. If you don't have a POA, you should think about obtaining one, especially if you're getting up there in years. According to the Home News Tribune "Update Health Care POA" January 17, 2003, page 5, Health Care Powers of Attorney (Living Wills) are directives that appoint a relative, friend or some other party, known as an "agent", to make medical decisions on your behalf if you can't do so, for reasons ranging from injuries sustained in a car crash to incapacity resulting from dementia. Health care POAs can be written as stand-alone documents but typically are included along with a living trust, a more comprehensive estate-planning tool. It's best to have a lawyer write a POA for you, and it's wise to have an attorney insert any changes. The Federal Health Insurance Portability and Accountability Act (HIPAA), which took effect in 2001, makes it wise to prepare a Living Will and Power of Attorney. These Federal HIPAA regulations aim to safeguard patient medical records by imposing privacy rules on doctors, pharmacists, other medical staff, insurance companies and so on. HIPAA calls for fines - in some cases, stiff ones- and even prison terms for disclosure violations, thus making health care providers think twice about giving out a patient's information to others. "Powers of attorney need to be adjusted to allow our clients immediate and hassle-free access to the medical records of the parents and other loved ones on whose behalf they are acting", wrote Arizona attorney Thomas Murphy in this months issue of Arizona Attorney, a publication of the State Bar. We recommend new health care POA Living Wills that would cover the following points: A statement directing physicians, hospitals, pharmacies, insurers and others to release a patient's health records to the agent. Murphy emphasized these directives should be updated to include specific references to HIPAA. The biggest problem is that many insurers will not honor any pre-April POAs, yet agents often must confer with insurance companies before the firms will pay a patient's medical bills. _________________________ Thank you for reading our newsletter! God Bless America USA #1 Kenneth Vercammen, Esq. 2053 Woodbridge Ave. Edison, NJ 08817 NEW PHONE 732-572-0500 New (Fax) 732-572-0030 website: www.njlaws.com We are not a big, impersonal Essex County law firm. We offer the personal attention, dedication and responsiveness of a small local firm. In Personal Injury cases and Probate litigation, we will keep you informed, promptly answer your questions and help you obtain needed assistance. We handle accident cases where people have been injured because of the negligence of others. Put our experience to work for you. Editor's Note and Disclaimer: All materials Copyright 2003-2004. 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