NJ Civil Reservation for a DUI-DWI case does not allow for NJ Personal Injury lawsuit…
Sep 29th, 2008 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving), New Jersey Injury InformationNew Jersey personal injury law states that if you are convicted of DUI (driving under the influence) you are prohibited from recovering in an NJ personal injury lawsuit for third party, underinsured motorist, or uninsured motorist claims.
While in NJ Municipal Court for a DWI-DUI (drunk driving) charge, a defendant can request a Civil Reservation under NJ Court Rules. A Civil Reservation usually prevents any admissions of guilt in the NJ Municipal Court to be later used against the person in a civil case.
This is not true when you have been convicted of drunk driving and then sue the other driver who caused the NJ car accident for personal injuries.
Last week, the NJ Appellate Division upheld this NJ personal injury law and ruled that a Civil Reservation cannot be used to circumvent the NJ personal injury law.
Do you think a driver, who did not cause an NJ car accident, but was found to be intoxicated, should be able to sue the negligent driver in a civil court in NJ for personal injuries?
That is a real tuff one. oh boy,…..
I thought there was some kind of rule of thumb , that the person who was dui shouldnt have been driving, thus wouldnt have been at that place at that time. However, there are thoses cases where a person may be borderline, and not sure if they are dui or not, and may not be thinking about whether their bac is 0.079 or 0,08…..
If eye witnesses and pollice investigation , and the resulting police report, clearly show the other driver, the sober driver, to have caused the accident, and the driver that was found to have a bac of 0,08%, but suffered catostrophic injuries,…. I THINK THE INJURED PARTY SHOULD STILL BE ALLOWED TO SUE ANY PARTY THEY CAN,,,,,
This is why it is extremely important , one, not to drink then drive, two, always drive safely,… and three, if charged with DUI, to fight like hell for an aquittal.
No one wants to see people with catostrophic injuries, especially when the cause was not thier own fault, but the negligent act of another driver,……
i think the law is wrong, the rthe in jured party should be able to collect on whatever he or she can, ….. they ji8ght be paralyzed, amputated,… brain damaged,…. they should be able to sue anbyone they casn…….. and damm a 0.08 bac, if the accident was not their fault,…..cause how would the person know they were 0,08,…. do people walk around with alcotests in their pocketrs?
another point here is the nj meadowlands comission, who is sweeping through giants stadium parking lost 6 hours before a game, forcing tailgators to leave the parking area and come back 5 hours prior,… even though the lot was not closed.
if a person had been drinking for 2 hours, to a bac of 0,081%, forced to drive out of that parking lot, dui, and another car crashes into them, and its the other cxars fault, and the person that was forced to leave the parking lot and drive dui, suffered catostrophic injuruies…. what this law is saying is that the person can not sue the third part- the nj meadowland comission, for forcing them to drive dui,……
this is a bad law, it is not right,….
people shgould fight this new law
certainly, it may take longer to prosecute a dui than it does to file a law suit for personal injury,……
i know in my case, i have made 17 court appearances over almost 38 months now, for a first offense dui, low level, no accident….
38 months,….
if i was in an accident, and was hurt to catostrophic conditions, certainly, my attorney would start with law suit within 10 days of the accident,…. and probably have it wrapped up within 38 months,….. well prior to the State getting around to initiating a dui trial in municipal court.
so, after the settlement,….. of 15 million dollars, for my catostrophic injuries, i collect and bank the money in a swiss account,…..then the state finally gets around to prosecuting me 25 appearances and 52 months later for the dui, what can they do?
this is also another reason for the nj supreme court order of jan 10, 2006, ordering the PROSECUTION TO PROCEED TO TRIAL,…
NOTHING WILL EVER CONVINCE ME THAT ORDER DID NOT PROTECT EVERYONES RIGHTS…
especially when we apply it to personal injury cases in the scnerio i put forth…
that being said, local copurts and local prosecutors can not have the right to pick and choose when a nj supreme court order should be obeyed or applied.
When the ORDER was made, it needed to be obeyed and applied across the board in every case,.. as set forth in the order— all 39-4 -50 prosecutions involving the alcotest.
see, as long as I stand with the NJ Supreme Court, ….. there is so much law on my side that makes it imperitive for the State and Municipal Court to have obeyed the NJ Supreme Court.
Two NJ statutes should be applied in my case, contempt of court, and obstruction of justice.
And we are going to find out if local courts and local prosecutors have the legal right to pick and choose which nj supreme courts orders they want to obey, and which ones they do not, arbitraily, at their own discretion, without going to the nj supreme court asking for a recondideration of the ORDER.
do you see my point?, it comes more into focus if the injuries are catostrophic and the injured person’s BAC was 0.08%, and the accident was not their fault.
Now, the dui defendant may certainly well be aquitted of the charge,…. or get a plea deal with a civil reservation on reckless, although the courts dont like this, it does happen in nj because of local logisital politics between local defense attorneys and local courts and prosecutors….
now, in looking at the nj supreme court ORDER of jan 10, 2006, you can see the high court did not mention accidents, or try to differentiate between severity of circumstances in regards to accidents,…..what the high court did do was issue an ORDER that protected everyone’s rights with regards to curent law, including the personal injury law in this article posted, nj and us constitutions, state and us supreme court opinions, caselaw, and statutes, and everything basic and fundamental to protect everyone’s rights, the State’s, defendants, the injured, people who caused accidents and hitr a person dui as under the law can not be sued if the dui person is convicted,…..
See, the nj supreme court thought this through, they are experts on the law, and they decided to write an ORDER, ordering the prosecution to proceed to trial, on jan 10, 2006, across the board, in all 39 4 50 prosecutions involving the alcotest.
it really comes down to whether or not this ORDER CAN BE ARBITRAILY APPLIED BY LOCAL COURTS AND PROSECUTORS, AS THEY SEE FIT, PICKING AND CHOOSING WHEN TO FOLLOW IT, .. OR IN MY CASE CHOOSING TO NOT FOLLOW IT IN ONE CASE BEFORE THEM OVER THE 26 MONTH LIFE OF THE ORDER.
we will find out,…….
with my mom’s catostrophic injury from a car accident, which i am now asked not to detail, … but you can take my word for it, that the injuries are CATOTROSPHIC,…..
I find myself in a position , now 38 months after my dui arrest, 17 appearances in municipal court,… to even be more outraged this dui is not behind me, .. because I will have to care for my mom.
Aside from all the other ways this delay has negatively affected my life,…. and it is many ways,…..the question becomes this….
How long can the State hold this over my head,???….. there are laws and rules and rights,… beside the nj supreme court ORDER, THAT ORDERED THE STATE TO PROCEED TO TRIAL YEARS AGO,.. the case should have proceeded to trial long ago without a COURT ORDER, BUT THE FACT THEIR WAS A COURT ORDER, makes the entire situation more outrageous.
I am not mentioning my mom’s accident looking for sympathy, .. it is a question of LAW, under Barker V WINGO, …..
people must be allowed to live their lives, …. circumstances occur,… and for one alleged traffic offense, there is no legitimate reason to have every law and right thrown out, and have a nj supreme court order thrown out by local prosecutor and local court….
,…
The arguement is that the personal injury law that was upheld by the appellate division in nj applies to the nj supreme court order of Jan 10, 2006 in first a general way,… then if circumstances apply to the personal injury law itself, it applies specifically.
However, in the Order itself, the NJ Supreme Court did not try to differentiate betweeN personal injury cases or not. The municipal court may hear a motion for a civil reservation, or they may not,…… it has no bearing on the facts of a DUI.
laegally, oficially, until hearings are held in a municipal court, and a trial is held, and both the State and the defense put motions and testimony on record,…. the municipal court legally only has the summons information to go on, the court does not have the State’s police report, because until it is submitted to the court, the court has no legal standing to consider it.
Now, because , by law, the municipal court can not officially know the circumstances of my case, except through the fact I was charged with dui,….. there is not even the ability to differentiate , if that is what they will argue, ….. and that remains to be seen what their excuse is going to be for not oneying the ORDER….
The fact is the ORDER protected everyones rights across the board, mine, yours, everyones,…… and the municipal court and municipal prosecutor failed to obey it.
So, the court continued and continues to order me to appear, now 17 times over 38 months, through the entire 26 month life of the ORDER,… and by law, could not have known one way or the other is a civil matter was pen ding regarding a personal injury, simply because nothing was ever put on record,…… but that really doesnt matter IN THIS SENSE ,…
PROCEEDINGS NEEDED TO BE STARTED TO FIND OUT……AS ORDERED BY THE NJ SUPREME COURT ON JANUARY 10, 2006.
This is just a narrow point of law, in a case where there are hundreds of points of law on my side, .. but it becomes clear that even in this narrow point, that the law and the ORDER, NEEDED TO BE OBEYED.
YOU MAY BE THINKING, WELL, IF YOU WERE INJURED IN A CAR CRASH, CHARGED WITH DUI, BUT THE ACCIDENT WAS NOT YOUR FAULT, you were 0,08% bac , lets say,….. and as a defendant you thought you could win an aquittal, why not fight like hell for a trial, to get this past, so the civil case can be settled,?….. well, the law does not agree with this thinking… actual true law…
The law says the burden is on the State to initiate a trial,… and although my rights to a speedy trial have been communicated to the court 3 seperate times…… there was no need for me to do that,.. as THE NJ SUPREME COURT ISSUED AN ORDER ON JANUARY 10 2006 ORDERING THE PROSECUITION TO PROCEED TO TRIAL.
No burden is on the defense except to appear when ordered. This is the law. The real law.
As you may or may not know, in reading my 500 plus posts on this blog site,…. this prosecutor never initiated a trial in my case, nor in any alcotest dui case during the 26 month life of the ORDER.
nOR DID THE PROSECUTOR EVER HAVE ANY INTENTION OF DOING SO, as each of my appearances occured at a 6pm session, with about 100 defendants each time there,…. all plea bargaining speeding tickets and what not, with the session going to nearly 10pm each time,…… with no time to conduct a trial, unless they planned to stay all night, maybe until 6 or 7 am, holding a lengthy dui trial,…. and we all know they never intended to do that,… as they never have in the history of this particularmunicipal court…
so why all the appearances? my arguement is that the court and the State conspired , entered into a conspiracy, to disobey the ORDER, and cause me severe emotional distress.
In other words, exparte communications did occur, the police report was read by the judge off the record, and pressure came to bear, to put me through this agonizing legth of time, that is still ongoing, to take away my life, my livlihood, my freedom, my prosperity,. …. and when this happens to one person, it happens to all people, all us citizens,….
all legalities are on my side,
and i am glad this post by mr. saile has prompted me to explore this further in writtings,…. because it just a great example of why legally the ORDER needed to be obeyed.
you should also know, in reading the police report, and looking over the discovery materials, which of course the State has, and i am arguing the court illegally has,…. it becomes clear there is a probable cause issue, albiet a 0,08% bac.
so, what they did was, order me to appear 17 times over 38 months, and ongoing,…. with the court knowing full well the circumstances through exparte communications with the State,….in order the break me,….
and there was no need for this morally,…. let alone legally,… as this is a first offense low level case , with no accident,…. so then…. what is the motive,…
at this point, pending investigation as to motive ,…. the first thing that is obvious is that neither the court nor the state had the willingness or time to hold a dui trial in protection of everyone’s rights.
but there could be more motives in this case, there could be personal motives, of some kind, or conflict of interest motives,…. as the case was now transfered to another municipal court, where no official reason is on record for the transfer, only the unofficial reason by phone that a conflict of interest has come to light.
do i know what that conflict is, …? no i do not.
does the new court know, no it does not, not legally,… maybe again, through exparte communications,….
regardless of any of this bull,…… appearantly there was no conflict for 33 months and 14 appearances,……all the time the 26 month ORDER TO PROCEED TO TRIAL WS IN PLACE, AND I MADE ALL THE APPEARANCES,….
do you understand my arguements?
everything was thrown out the window, … fundamental fairness, the court ORDER, nj and us constitutions,. case law,. statutes, court rules, code of professiuonal conduct, …. the whole thing, everything, gone, … as if i was a citizen of north korea,…..
this can not be morally or legally right.
just as the man the was in a one car accident took his case to the nj supreme court pro se and won,… i know in my heart i am right.
However I do have an attorney, i have had 2, and have paid 8000 dollars for representation in my defense thus far.
Rehardless of my defense, the BURDEN WAS AND IS ON THE STATE OF NJ first, and the Court 2ND, AND AS LONG as i have appearaed each time, .. present for roll call, and did not leave the court until adjourned, there can be no burden on me further.
I really do not understand why people in general and people in the legal profession, refuse to recognize this for what it is.
i am hesitant to go into more details regarding this matter, but there are thousands of more details….
including my first, former attorney, telling me the first judge was prepared to write a plea deal,….
of course, being an educated man, with some legal knowledge, i know that judges do not write plea deals ,… so i asked my attorney again,…. ” the judge is going to put a plea deal in writting” he saiud yes, in front of witnesses,…. so i responded, ” well , when the judge writes a plea deal in my case, we should take it tot the ethics committee” .,,
see, i knew i was being feed a line of crap,….. judges have no legal standing to write a plea deal, …. the Statye doe, but not a judge, … the judge can rule on it, but not write it…
‘
but that is , again, just another one of the 1000 plus legal points i am going to make,…
so when they say to write a brief and be brief, ….. how brief can it be?
if i was at princeton, harvard, or penn, in law school, and had to do this for an assignment, it would be 100 pages required mininum,….
i have written over 4000 pages,. but did write a 38 page brief, and quite frankly, it was probably too short,… and as that was in march, and it is now october, it needs to be extended to include all the new things that have occured.
unfortunatley, i once again boxed myself into a corner, as i am at the mercy of those who are willing to read everything i wrote.
the argument can only become clear if every post is read from the begining of post 3 to the end.
i heard a great line once from a blogger on a sports site, he said the only relevant post is the last post,…..
well, one can not make an entire legal arguement in one post,…..
it is my hope that every post i have made today is read , together at the same time,….. and that my arguement is known, identified, and brought to light…
listen, i was forced into this, by the prosecution’s failure to uphold everyone’s rights and obey a nj supreme court order….
that aspect in of itself is a point of barker v wingo, … as it has overwelemed and taken control of my life,….
now, with my mom’s catostrophic injuries,….. it is another circumstance the people and i have to bear through the course of life,…… and this is why we have a us and nj constitution, statutes. court rules, ethics, codes of professional conduct, a judicial system, case law, and nj supreme court ORDERS.
SO PEOPLE can live in FREEDOM.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America
IF YOU WOULD LIKE TO HEAR THE PREAMBLE SET TO MUSIC, TRY THIS LINK, IT IS SCHOOL HOUSE ROCK, MAYBE YOU REMEMBER THESE FEDERALLY SUBSIDIZED TELECASTS ON ABC NETWORK FROM THE 70′S
http://www.youtube.com/watch?v=Q_TXJRZ4CFc
THE PROBLEM IS THIS,…. i just re read everything i wrote today,… and to me it is 2nd nature, all of it, i can write and rewrite it a billion times over, the wortds may change, but the facts and arguements will never change.
to me, it was extremely limited…. what i wrote…
however, i do know, just these words should be sound enough for anyone to understand—-
1)17 municipal court appearances over 38 months, for a first offense dui, lowest level, no accident.
2)the nj supreme court ORDERED the prosecution to proceed to trial on jan 10, 2006,– this order lived for 26 months, but was never changed, or found to be unjust
3)state v farrell tells us a first offense dui can last only 13 appearances and 23 months
4) barker v wingo is clear as to the 4 elements
5) if they want details of my delema, they may wind up getting 10,000 pages or more to read.
It hurt my head just to re read everything i wrote today,…. and while it said everything, it also said nothing,….
imagaine , if you are a judge on the law division, apellate court, or nj supreme court, having to read 10,000 pages which i would be obligated to submitt to the court…
i c an go on and on and on, and cover point after point,….
my motion brief that i wrote i think does it best,….
because it contains the docket record for each apearance and my comments as to what occured during each appearace….up to the point the case was recently transfered, …. then it just contains my points on what occured in the 2 appearances in the new municipal court..
i really do not know what more i can do in my case, …. i have representation,…. my attorney fully understands my arguements and was able to orally restat them in my presecence in detail, as we together read through the nj supreme court ORDER OF JAN 10, 2006…
“PROCEEED TO TRIAL” , as ordered by the nj supreme court, in this ORDER, are words that have dominated my mind since they were written and issued,….
this is a barker v wingo issue, and an issue which the judge refused to let me speak on….
again, one of 1000 issues in my case…
fundamental fairness was obliterated, along will everything law,…..
it is simply unbelievable, yet true,…..
i can not cave in, ever, ……… and even if an unjust municipal court trial now somehow takes place,….. then i at least can give the law division every arguement, 10,000 pages of arguement….
even the prosecutor thretening to have defendants shot in court if the approached the bench with regards to their case, on 2 ocassions,
again, another 1 or 1000 issues to be brought up that i would write in detail about to the apellatte court and the nj supreme court,….
can not anyone see that these circumstances are morally and legally wrong?
i dont even know what the following means…. i aint whistling dixie…. whatever that means
i take it to mean that i am not just going along, non chalant, taking things easy, … and thinking everything will be ok…
i think that phrase means that i am not taking this situation lightly, nor have i, for years now,….
so no, in my definition, i am not just whistling dixie….
i am going to fight this out to the end, and ill probably get crushed, at first, and ill probably get crushed in the end,… and i’ll probably get crushed in the middle,…. but i have to fight it out, on principal and law,……
nj municipal courts operate so far out of the law it really is unbelievable, …. but at least i will follow the law all the way home, whereever home may be ….
NOTHING CAN BE MORE DIS-HEARTENING TO A NJ MUNICIPAL COURT JUDGE OR A NJ MUNICIPAL COURT PROSECUTOR, THAN FOR A DEFENDANT WHO IS A US CITIZEN TO BE CRYING FOUL FOR YEARS ABOUT OBSTRUCTION OF THE CONSTITUTION,…
YET IS IS WHAT IS IS.
do these people have no knowledge of the battle of trenton, princeton, brandywine creek, valley forge, saratoga, freeman’s farm, battle of monmouth, cowpens, …….
sometimes i have to sit and wonder about the education our municipal court judges and prosecutors have…..
do they know there is a united states constitution and people lined up in lines to give their life for it?
what the heck are they thinking?
when the nj supreme court says jump, they need to ask how high, and be dammed them for not …
you understand me clearly enough?
Joel Osteen had a great sermon last night on tv. He was talking about bad things that happen to people, that if you were wronged, lied to, cheated on, stolen from, or made mistakes, and brought bad things upon yourself,….. that one should not look at these things as having happened to them….. they should look at those things as having happened FOR THEM. Steeping stones, that God is giving us, to get closer to him. .. to use these things to prepare ourselves for what God wants us to do.
So I say to the local judge and prosecutor, who disobeyed a NJ Supreme Court ORDER, during the entire 26 month life of the order, in the middle of the 38 months and 17 appearances of my first offense DUI case, for which the ORDER was written,…. that when they are sanctioned, fired, and dissbarred, that this did not happen to them, it happened for them!
and i my position, this very bad thing happened to me because God wants me to use it as a steeping stone as well,…. to follow the law all the way out,….. to work hard in this case, not only to set forth in motion action against the judge and prosecutor, for which their own steeping stones will be created, but for my own steeping stones to be used to help myself and others, in some way, not yet clear to me.
now, you may be thinking, God, what does God have to do with court,….
Well, just from a practical standpoint, our government is based on God’s foundation,.. we see it in every flag in every court room,… one nation under God,….
Frome a more esoteric standpoint, I know, as many millions others do, that God is in everyone’s life, and in everything we do.
i think now i am wrong about the municipal court not being allowed to read through the discovery materials and police report,…. certainly they need that on file, and judges do read through it to see if they can shepherd a plea bargain….. however no plea bargains are allowed in nj on dui, as directed by both the attorney general and nj supreme court , in memos and directives,
however, to use the material that the judge can read, submitted to the court, by the state, to deetermine if a nj supreme court order should be followed at their discretion, is wrong, especially considering the marerial in the report and state’s discovery can certainly well be contested, but not only that,.. that the ORDER, needed to be obeyed across the board, regardless of case to case circumstances…
the State can not argue their was a stay on prosecutions, because the nj supreme court ordered the prosecurtions to proceed to trial, and if there was a stay, the municipal court judge would not have ordered me to appear 13 times during the life of the order, 17 times overall, over now 38 months. this point is the burden is on the State, and the judge would have been clear of wrongdoing, however, when the judge articulated in the motion to dismiss hearing, he stated everyone had to wait, then he hung himself on the court order, because if everyone had to wait, which isnt actually true, but if that is what he believes, wrongly, then why did he order me to appear 13 times during the life of the order?
you see my point here? the law and case are straight forward, no real problems,. the State has what it has to discovery and evidence, they needed to present it at hearings and a trial, and let the law fall where it may,….for the municipal court to not shepherd this, and for the State to not initiate it, clearly makes the conspiracy tangible.
.i just know that i am right,…… belive me, i have requested to both my first attorney and 2nd attorney we file a suit or motion or something in a higher court, to get this case over with, i have all this documented in emails,… and even times emails opened by the current attorney,…. and printouts of the 106 emails i sent my first attorney , begging him to do something,… however , i must stand on 2 notions, the burden is on the State, not the defense, and the nj supreme court ordered the prosecution to proceed to trial,…. although i have spent 8000 dollars so far on a defense, i really must focus on the the State and the municipal court for not doing their jobs, rather than defense attorneys,……because if the State had done its job, and the court shephereded the case to trial, then the defense attorneys would have been enabled to do their job. this is clear law here, no burden is on the defense, and the fact the defense of my case have not made any waves to discovery or anything, but basic cookie cutter initial motions way back 38 months ago, no roadblocks were put up to prevent the State from going to trial with a free ride on the bac.
i am aware that 75% of the 50 attorneys i called over the course of the last 2 years do not accept the fact the nj supreme court order said proceed to trial, simply because they did not want to go to trial with the state having a free ride on the bac, … however, as i stand with the nj supreme court,….and with my probable cause issues on the stop,…. and law regarding personal injury as related to dui,…. the simple fact is, everyone’s rights were violated by not following the nj supreme court order of jan 10, 2006, to proceed to trial. well, it is a fact that i know the nj supreme court will articulate. now matter how much everyone wants to promote the lie their was a stay on prosecutions, there simply was no stay, and the nj supreme court knows it, cause they wrote the order themselves, and even reconsidered it after mr levow asked for reconsideration, and theysaid the order will stand,…. and it did stand for 26 months, until the final decision in state vf chun… as far as making motions in court and this and that, if both the municipal court and the state refuse to let a defense appear before the judge in 14 of the 17 appearances, well, what can the defense do, but file a law suit,… but this is somerthing where the conspiracy goes deeper, because it is not something defense attorneys do, because of politics,… in the end, unless i get lucky, and make a perfect pro se case, i am going to be nailed to the wall, hav ing already lost 38 months of my life, with extreme unecessary emotion distress.
i know that the nj supreme court order of jan 10, 2006 protected everyone’s rights, and when it was not followed in this municipal court in any case, not only not followed in mine, that every citizens rights were violated. one can even argue that their were cases where a defendant needed help, through the irdc, and their evaluation and reccomendations, that withholding a trial, where most likely guilt would be determined, was in essence the State withholding treatment services… this is just one aspect of a million or a billion legal aspects,…
now , maybe, maybe, some courts will argue that some first offense cases needed a delay, i do not agree with that, because of the language in the nj supreme court order of jan 10, 2006, but for 2nd or 3rd offense prosecutions to be stayed, was also a violation of everyones rights,.. mine , yours everyones, ……and one can argue presented a saftey issue to all nj drivers. the arguments are vast in what i have to say, and if i were in harvard, or princeton , or penn, in law school, the motion brief would be at least 300 pages long, because every law , case law, court order, court rule, rule of professional conduct, directive, fundamental fairness, basic bill of rights to a trial, nj constitution, …. were all violated, everything thrown out the window, by a local municipal court judge, and a local prosecutor, that simply had no need or time to hold trials in their court room, or ensure public saftey…..