New Jersey Criminal Defense Attorney Blog

In a hypothetical case, an NJ driver is observed operating their vehicle erratically near the border of Pennsylvania or New York. A NJ State Police Officer follows the vehicle, which turns onto the bridge and proceeds across the state line. The Trooper follows, pulling the vehicle over in the neighboring state and ultimately arresting the driver for an NJ DWI. Is this legal? Does the NJ municipal court have jurisdiction? The answer is not as clear as it may seem.

Because a municipal court has limited jurisdiction, it is obligated to assess whether or not it has the power to act in a particular matter before it; the authority of the court to adjudicate disputes must be found in legislative grants of jurisdiction. State v. Garcia, 297 N.J. Super. 108, (Ch. Div. 1996).

N.J.S.A. 2B:12-16(a), the basic grant of municipal court territorial jurisdiction, provides that the court has jurisdiction over cases arising within the territory of the municipality in which it sits; it defines that territory, however, as also including property or premises located partly in and partly outside the municipality. Garcia, supra, 297 N.J. Super. at 108.

The power to arrest and prosecute for offenses committed "on the bridges" has been set forth in pertinent legislation adopted by New Jersey and Pennsylvania. N.J.S.A. 32:4-6; Pa. Stat Ann. tit. 36 § 3504.1. Though there are obscurities in the statutory language, the legislative purpose to afford concurrent jurisdiction to New Jersey and Pennsylvania over all offenses committed anywhere on the "bridges" is clear. Garcia, supra, 297 N.J. Super. at 108.

In Garcia, where the defendant was involved in an accident on a bridge over the Delaware River that connected New Jersey and Pennsylvania, the initiation of prosecution of defendant in New Jersey for careless driving and leaving the scene of an accident vested the municipal court "nearest the site of the offenses with jurisdiction over the matter." Ibid.

Calhoun Street Bridge is owned and operated by the Delaware River Joint Toll Bridge Commission. N.J.S.A. 32:4-6 provides, in part, (1) that the Delaware River Port Authority's police force may "make arrests for crimes, misdemeanors, and the offenses of any character committed upon said bridges" and (2) that upon an arrest, the offender may be taken to a proper judicial officer of Pennsylvania or New Jersey "without respect to the portion of the bridge" where the offense may have been committed or the offender may have been arrested. See also State v. Holden, 46 N.J. 361, 363 (1966).

N.J.S.A. 53:2-1 sets forth the powers and jurisdiction of the New Jersey State Police. It provides:

The members of the State Police shall be subject to the call of the Governor. They shall be peace officers of the State, shall primarily be employed in furnishing adequate police protection to the inhabitants of rural sections, shall give first aid to the injured and succor the helpless, and shall have in general the same powers and authority as are conferred by law upon police officers and constables.

They shall have power to prevent crime, to pursue and apprehend offenders and to obtain legal evidence necessary to insure the conviction of such offenders in the courts. They shall have power to execute any lawful warrant or order of arrest issued against any person, and to make arrests without warrant for violations of the law committed in their presence, and for felonies committed the same as are or may be authorized by law for other peace officers.

They may co-operate with any other State department, or any State or local authority in detecting crime, apprehending criminals and preserving law and order; but the State Police shall not be used as a posse in any municipality except upon order of the Governor when requested by the governing body of such municipality; provided, however, that the Superintendent of State Police, or the person in charge thereof, shall, upon request made to him by the superintendent of elections of any county of this State, assign for use on any election day officers and troopers, not to exceed fifteen in number in any one county, to aid such superintendents of elections in the enforcement of the election laws of this State.

They may act as inspectors of motor vehicles and as wardens in the protection of the forests, and the fish and game of the State. With respect to enforcement of the provisions of the "New Jersey Alcoholic Beverage Control Act," Title 33 of the Revised Statutes, they shall have all the powers conferred upon "officers" pursuant to that title. They shall have the authority to investigate any offenses or violations occurring on the waters of this State, as defined in section 1 of P.L. 1986, c. 150 (C. 53:1-11.10), and to stop and board a vessel in the waters of the State to determine whether the vessel complies with State and federal boating safety laws and shall have the power to order a vessel that does not comply with these laws to return immediately to shore. They shall have the authority, in accordance with applicable State and federal laws, rules and regulations, to take appropriate action as authorized by the United States Coast Guard to assist the United States Coast Guard in the enforcement of any safety and security zone established by the United States Coast Guard Captain of the Port for the Port of New York and New Jersey or the Port of Philadelphia. They shall have the authority to perform all of the duties of members of the State Capitol Police Force as defined in section 2 of P.L. 1977, c. 135 (C. 52:17B-9.2).

Nowhere in the State Police's jurisdictional grant is there any authority whatsoever for a member of that force to make an arrest inside the State of Pennsylvania. In that, there does not appear to be any statutory authority of any kind for an officer of the New Jersey State Police to follow and subsequently arrest a defendant outside the State of New Jersey, whether in Pennsylvania or any other state. Simply put, State Police Officers of the State of New Jersey become mere private citizens after crossing into Pennsylvania. An NJ officer would therefore be without probable cause to arrest a defendant in the State of Pennsylvania.

While N.J.S.A. 32:4-6 provides authority to members of the Delaware River Port Authority to make such arrest, the statute is completely inapplicable to the case at bar. The statute does not mention the Delaware Joint River Toll Bridge Commission, of which the Calhoun Street Bridge is owned and operated by. Moreover the statute gives absolutely no authority to members of the New Jersey State Police to make such arrests.

In order for our hypothetical Court to hear the instant matter, two elements must be satisfied: 1) The arresting officer must have been authorized to make an arrest inside the State of Pennsylvania; and 2) The court must have jurisdiction. Neither element is satisfied in our case. This court should therefore dismiss the summons against defendant.

Actress Amy Locane, best known for her role on Melrose Place, is facing charges of DWI, vehicular homicide and assault by auto in Somerset County, New Jersey. This follows her arrest last week after allegedly colliding with another vehicle carrying a husband and wife while drunk driving. The driver of the vehicle was critically injured and the passenger was killed.

Police say that Locane was driving while intoxicated on July 4th when she drover her SUV into the passenger side of a sedan. The accident occurred in Montgomery Township.

Officers who arrived and noticed that Locane's breath smelled like alcohol and her eyes were red and watery. Her speech was apparently slurred. Police then arrested Locane and transported her to a nearby hospital for a blood test. Police say she later admitted to drinking wine before driving. She faces up to 10 years in New Jersey State Prison if convicted of all the charges she faces.

Recently, the Law Division in Monmouth and Mercer Counties have issued divergent rulings regarding the use of Control Corp. software to calibrate the temperature probe used in the Alcotest breath testing machine. In Mercer, a judge ruled that substituting the accepted Ertco Hart unit with a less expensive unit was permissible. Most defense attorneys in NJ believe this to have been a very bad decision. More recently, a Judge sitting in Monmouth Superior ruled to the contrary.

In municipal court prosecutions, the defendant initiates discovery simply by making demand of the prosecutor. Rule 7:7-7(c). Both the Rules of Court and case law make it clear that it is the prosecutor's unique function to be responsible for providing discovery when a request is made. Rule 7:7-7(a); State v. Polansky, 216 N.J. Super. 549 (Law Div. 1986); State v. Holup, 253 N.J.Super. 320 (App. Div. 1992).

The New Jersey Supreme Court specifically mentions the Ertco-Hart digital thermometer system, manufactured by Fluke Company, four distinct times in its opinion in Chun. First, under a point heading titled "Requirements Prior to the Admissibility of Alcotest Evidence," the Court states:

Our analysis of the general scientific reliability of the Alcotest is grounded, in part, on our expectation that there will be proof that the particular device that has generated an AIR being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test. This requirement that the test results be supported by foundational proofs for admissibility has been part of our jurisprudence since we decided Romano. There we demanded that, as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure. Romano, supra, 96 N.J. at 81, 474 A.2d 1.

In matters relating to the Alcotest, the same general considerations that gave rise to these requirements must, of course, apply. In an effort to address these concerns, the Special Master recommended that certain documents, which he referred to as the "foundational documents," be produced during discovery and that they be admitted into evidence as part of the State's case-in-chief. The documents in question can be described as follows (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

[(Chun, 194 N.J. at 134-135).]

Accordingly, in the Order issued by the New Jersey Supreme Court in Chun, the Court mandates that the State provide 12 specific foundational documents into evidence in DWI prosecutions based on Alcotest readings. These include:

(1) New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change;
(2) Certificate of Analysis for the 0.10 percent solution used in that New Solution Report;
(3) Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;
(6) Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;
(7) Certificate of Analysis for the 0.10 percent solution used in the calibration control test;
(8) Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test;
(9) New Standard Solution Report, following the most recent calibration;
(10) Draeger Safety Certificates of Accuracy for the Simulators used in calibration;
(11) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe used in calibration; and
(12) Draeger Safety Ertco-Hart Calibration Report

Moreover, the Court states:
The parties agree, as well, about certain of the Special Master's recommendations for future revisions in the firmware that will provide additional information on the reported results that the device generates. For example, the parties agree that the firmware should be rewritten so that the AIR, solution change report, and calibration documents include the temperature probe serial number and probe value (Special Master's Finding 2(a)); that if the particular test subject has not received a reportable result, the AIR must include a statement identifying why that occurred (Special Master's Finding 2(e)); and that future calibration, certification and linearity reports should include the serial number of the Ertco-Hart digital temperature measuring system utilized in performing those testing and maintenance operations (Special Master's Finding 2(i)).

[Id. at 89.]
Accordingly, the Court Ordered: "that the State shall arrange forthwith with Draeger for revisions to the New Jersey Firmware utilized in Alcotest 7110 MKIII-C, as needed to accomplish the directives set forth in the Court's opinion regarding the admissibility into evidence of results of Alcotest breath testing, currently New Jersey Firmware version 3.11, as follows ... G. The firmware shall be programmed to include the serial number of the Ertco-Hart digital temperature measuring system utilized as a part of each calibration, certification and linearity report...." Id. at 152.
In State v. Holland, Monmouth County Law Div. 09-069, April 16, 2010, defendant sought to suppress her Alcotest blood-alcohol content readings, citing the use of a Control Corp. thermometer, rather than an Ertco-Hart. The motion was denied in the Municipal Court. However, on appeal to the Law Division, Judge English, granted it and remanded the case for a new hearing without the Alcotest readings.
Judge English reportedly said of the substitution from Ertco Hart to Control Corp., "I don't see how the Attorney General takes that step without ... going back to the Supreme Court if that's what they have to do. Going back to the Master and saying we need to make a change here." Special Master Michael King said in his report to the justices that "the Ertco-Hart temperature measuring system or other similar device" be used, but the Court's ruling in Chun mentioned no such substitution, English said. "I don't know why the Supreme Court wouldn't have added that language if that's what they wanted to do," he added.
It is undisputed in this case that the Alcotest machine used to take defendant's breath samples was last calibrated using Control Corp. software, rather than Ertco Hart. This is impermissible under the clear mandate in the New Jersey Supreme Court's Order issued in Chun. There is a reason why the Court mandated a specific calibration unit to be used on the Drager Tempature Probe - because this was the unit recommended by the Special Master after painstaking research whose findings were adopted by the Court. It is obvious that such calibration units can be made with deviant quality and reliability standards such as any other piece of machinery, equipment, or software. The Alcotest is used to convict defendants of a most serious motor vehicle infraction that carries severe penalties. The temperature probe is an apparatus vital to the proper function of the Alcotest machine. It is therefore crucial that the software used in calibrating such an important instrument be rigorously tested and known to be reliable. The Ertco-Hart calibration unit has passed this test. Control Corp., known as the "cheaper" of the two units, has not.
The State cannot provide the defendant with one of the 12 mandatory foundational documents. The Supreme Court has made no exceptions to this strict requirement. Further, the State cannot be allowed to substitute calibrating units, contrary to the direction of the Supreme Court, simply in the interest of economy. This completely undermines the level of reliability the results of the Alcotest readings in question should be given.

State v. Delia Pape-White, unpublished opinion, App. Div. Docket No. A-0840-08T4 (April 28, 2010) - "[W]e affirm the Law Division's conviction for DWI and reverse the conviction for reckless driving. Based on these determinations, we dismiss the State's cross-appeal....

Since a BAC reading can only be shown by admissible breath or blood tests, not by observation, defendant correctly observes that if the State is successful in appealing the admissibility of the Alcotest results, the .11 percent BAC readings would subject her to higher penalties than if she had not appealed....

The Law Division's ruling suppressing the Alcotest results precluded the State from proving that defendant's BAC was at least .10. Whether correct or not, that decision is not subject to appeal after a judgment of conviction has been entered, because appeal and reversal would 'subject defendant to ... the possibility of conviction of ... an offense carrying a higher penalty.'...

Such an appeal would violate defendant's right against double jeopardy.... [W]e reject the State's contention that the sentence imposed by the Law Division was illegal. The Law Division's factual determinations regarding defendant's guilt resulted in the State securing a DWI conviction. The sentence thereafter imposed was a proper disposition under N.J.S.A. 39:4-50(a)(1)(i)."

Manasquan Municipal Court

Location: 201 East Main Street
Manasquan, NJ 08736

Phone: (732) 223-0600

The judge in Manasquan Court is the Honorable Mark T. Apostolou. The prosecutor is James Carton, IV. The court administrator is Marie Higgins. Manasquan is a beach town, with many visitors frequenting the town during the summer months. This results in a spike in traffic tickets, DWI and criminal arrests.

West Long Branch Municipal Court

Location: 399 Monmouth Road
(corner of Deal and Monmouth Roads)
Oakhurst, NJ 07755

Phone: (732) 531-0291
Fax: (732) 531-0302

Court sessions are on Thursdays. The judge in West Long Branch Court is Louis Garippo, Jr., J.M.C. The court administrator is Kathleen McCann. West Long Branch Police issue a fair number of traffic and speeding tickets. A lot of underage drinking, DWI and drug possession arrests are also made in West Long Branch.

Interlaken Borough Municipal Court

Location: 100 Grasmere Avenue
Interlaken, NJ 07712

Phone: (732) 531-7405
Fax: (732) 531-7099

The judge in Interlaken court is the Honorable George Cieri, J.M.C. Court sessions are held on the last Tuesday of every month. Interlaken is a low-volume court. Mostly traffic and speeding tickets. Few DWI or criminal arrests are made in Interlaken Borough.

Lakehurst Municipal Court

Location: Lakehurst Municipal Court
Five Union Avenue
Lakehurst, NJ 08733

Phone: (732) 657-4151

The judge in Lakehurst is the Honorable Damian Murray, J.M.C. The prosecutor is Joseph Coronato, Esq. Lakehurst Police issue a fair share of traffic tickets, particularly for speeding, driving while license suspended and DWI.

New Hanover Municipal Court

Location: New Hanover Municipal Court
PO Box 142, Two Hockamick Road

Phone: (609) 758-7172

The judge in New Hanover Court is the Honorable Dennis McInerney. The prosecutor is Mark Tarantino, Esq. New Hanover and New Jersey State Police issue a fair amount of traffic and speeding tickets. Some DWI and criminal/drug arrests are also made in New Hanover.

Seaside Heights Municipal Court

Location:
116 Sheridan Ave
Seaside Heights, NJ 08751

Phone: (732) 830-2202

The judge in Seaside Heights Municipal Court is the Honorable Damian Murray. Seaside Heights make a substantial amount of criminal, drug and DWI arrests, particularly in the summer months. A fair share of traffic and speeding tickets are also issued in Seaside Heights.

Point Pleasant Borough Municipal Court

Location: 2233 Bridge Avenue
Point Pleasant Beach, NJ 08742

Mailing Address: P.O. Box 25
Point Pleasant, NJ 08742

Phone: (732) 899-1636
Fax: (732) 295-3521

The judge in Point Pleasant Borough Court is The Honorable James Ligouri, J.M.C. The prosecutor is Joseph Coronato, Esq. Point Pleasant police make a substantial amount of criminal and DWI arrests. A fair amount of traffic and speeding tickets are also issues in Point Pleasant.

Belmar Municipal Court

Location: 601 Main St
Belmar, NJ 07719

Phone: (732) 681-3700

The judge in Belmar Court is the Honorable Dennis Lavender. The prosecutor is Stephen G. Schueler. Belmar police make a lot of DWI and criminal arrests. A heavy amount of traffic and speeding tickets are also issued in Belmar.

Avon By The Sea Municipal Court

Location: 301 Main St.
Avon By The Sea, NJ 07717

Phone: (732) 502-4515

The judge in Avon court is the Hon. Alfred J. D'Auria, P.J.M.C. The prosecutor is Benjamin B. Choi, Esq. Avon Police issue a fair amount of speeding and other traffic tickets. Some DWI and criminal/drug possession arrests are also made in Avon by the Sea.

Toms River Municipal Court

Location: 255 Oak Ave
Toms River, NJ 08753

Phone: (732) 797-3914

The judges in Toms River Court are James A. Ligouri, J.M.C. and Damian Murray, J.M.C. There are several prosecutors in Toms River. Toms River Police issue a heavy amount of traffic and speeding tickets. A lot of DWI and criminal arrests / drug possession arrests are also made in Toms River.

Bradley Beach Municipal Court

Location: 701 Main St.
Bradley Beach, NJ 07720

Phone: (732) 776-2979

The judge in Bradley Beach Court is the Honorable Mark Apostolou, J.M.C. The prosecutor is James Shamy, Esq. Bradley Beach Police issue a fair share of traffic and speeding tickets. Some DWI and minor criminal / drug arrests are also made in Bradley Beach.