For a person to create a valid advance health care directive, a person must be 18 years old, and of sound mind and capacity. Two qualified adult witnesses or a notary public is needed to sign and validate an advance health care directive. Their signature proves that they acknowledge the person creating the document is competent and acting out of their own will. A qualified witness cannot be a health care agent, alternate health care agent, supervising health care provider, or an employee of a health care facility.

Family members, by blood, marriage, or adoption cannot witness an advance health care directive, either. Advance health care directives can be revoked or changed at any point. In order to revoke an advance health care directive, a person must inform their health care provider in person or via writing. The creation of a new advance health care directive will revoke any prior advance health care directive.

Conditional Dismissal is a much welcomed diversionary program which was signed into law by Governor Chris Christie (R) as P.L. 2013 c. 158 on September 6, 2013, and went into effective January 4, 2014. It allows those who qualify, charged with disorderly persons or petty disorderly persons offenses in municipal court, an opportunity to keep a clean record provided they successfully complete a 1 year period of probation without any additional criminal convictions. This is a perfect compliment to the Conditional Discharge Program, under N.J.S.A. 2C:36A-1, which works similarly, but applies only to drug offenses, and the Pre-Trial Intervention Program under N.J.S.A. 2C:43-12 which applies to indictable offenses. In a time when the Administrative Office of the Courts, and the New Jersey Attorney General strongly discourage municipal prosecutors from downgrading disorderly persons offenses to non-criminal municipal ordinances, this is a valuable option for prosecutors and defense attorneys resolving cases.

Over the course of my career as a New Jersey criminal defense attorney, I have seen trends in how laws are implemented, and I have seen these trends come and go. There was a time, years ago, when I could walk into municipal court with a client charged with a disorderly persons offense, and if there were no aggravating facts, I stood a better than average chance of getting the offense downgraded to a non-criminal ordinance just for the sake of resolving the case quickly. If my client also had no prior record, it was practically a guarantee I would be able to get the charge dismissed or downgraded. Several years ago, that changed. Presently, even representing a defendant with no prior record, unless I can establish a strong factual or legal argument which genuinely calls into question whether a prosecutor can sustain a conviction, the chances of resolving a criminal matter in municipal court with a downgrade are extremely slim. As a result, prior to the adoption of the Conditional Dismissal, defendants and their attorneys were left between a rock and a hard place. Even prosecutors didn’t like the idea of convicting a first time offender who they felt maybe deserved a break. Attorneys often commiserated about the inequity of drug offenders getting a break with Conditional Discharge, and those charged with even more serious indictable offenses finding a path to a clean record with PTI, but those charged with minor disorderly persons or petty disorderly persons offenses having to take it on the chin. But what to do? There were few options, and I had to either roll the dice in trial for cases that had less than a strong defense and hope for the best, or become very creative. One time, I actually argued that my client’s charge was more serious than originally contemplated, and asked the municipal prosecutor to send the case up to the county prosecutor’s office for review. It was my hope that the county prosecutor would agree that it was actually an indictable offense, which would allow my client to then qualify for Pre-Trial Intervention. A risky strategy to be sure, but one that actually worked. Going through contortions such as those was simply not a viable solution to handle an entire case load, and not even an option for most cases. Now, thanks to some common sense and a practical approach to what was universally perceived as a problem, we have a solution, making such extraordinary efforts as described above unnecessary.

On February 25, 2015, the Department of Labor issued a “Final Rule” that amends the definition of “Spouse” in the Family Medical Leave Act. Previously, an employee seeking leave under the act would be eligible if the state law they lived in covered the dependent under the State’s definition of “spouse”.

The new rule requires that all legally married couples, whether same-sex, opposite sex, or married at common law be recognized as spouses for purposes of the FMLA so long as (a) their marriage was legal when, and in, the place in which it occurred; and (b) such a marriage is recognized as valid in at least one U.S. State. This replaces the former rule based on the laws of the “State of Residence” with the new rule based on the laws of the “Place of Celebration.”

This new definition includes same-sex and common law marriages or other forms of legal marriage that are entered into in foreign countries as long as that marriage can be or could legally have been entered into in at least one state.

All features of the FMLA law apply, including time allowed for birth of a child, bonding with a newborn, placement for adoption, bonding with an adopted child, and care for the spouse themselves. Military Caregiver Leave and Qualifying Exigency Leaves are also included. Certain individuals who previously had been determined as eligible to take leave under the FMLA as a result of standing in loco parentis, would no longer have to meet that requirement to obtain leave and instead of needing to show that they provide day-to-day care or financial support are now eligible based on the spousal relationship.

The new rule is scheduled to take effect on March 27, 2015 and follows the executive direction to cabinet to review and implement the 2013 Supreme Court decision in United States v. Windsor that struck down portions of the Defense of Marriage Act.

Employers should be certain to ensure that their FMLA policies are updated to reflect the new approach to defining “spouses” based on the location and laws of the place the marriage was entered into if such marriage is legal in any U.S. State. It also means that some employees previously not recognized as spouses, and not eligible to be recognized by way of registration as “domestic partners” will become covered under the FMLA. This will provide coverage even if they are not recognized in California under the California Family Rights Act (such as unmarried opposite-sex couples who are both below the age of 62 but became married by common-law in a foreign location or state that allows common law marriage.)

As indicated on our website, there are numerous charges that are heard in the Municipal Courts in the State of New Jersey. These range from low level motor vehicle violations such as going through a stop sign, careless driving, failure to maintain your lane and other charges that generally carry very low fines and two or less motor vehicle points. If you have been charged with any motor vehicle violation that carriesmore than two motor vehicle points upon a conviction, we suggest that you obtain the advice of counsel before going to court. The purpose of this blog post is to provide the reader with some information as to whether or not they need legal representation in Municipal Court on a low-level motor vehicle violation that carries two or less motor vehicle points.

As most citizens of New Jersey know, municipal prosecutors will, generally, as a matter of course offer a “no point” or “zero point” violation as part of a plea bargain if you are charged with one of these low-level motor vehicle violations. As most citizens of New Jersey also know, the monetary cost of these “no point” or “zero point” violations are rather excessive in that you are required to pay a $250.00 surcharge for this “privilege.” The statute which provides this “no point” plea is called the unsafe driving statute. The basic theory in accepting a “no point” or “zero point” plea bargain is to potentially avoid motor vehicle points on your license in order to keep your auto insurance premiums lower and, potentially, to avoid the suspension of your driving privileges where you are in danger of accumulating 12 motor vehicle points which will result in a temporary suspension of driving privileges. Because most municipal prosecutors offer this unsafe driving type plea as a matter of course on traffic violations that carry a punishment of two or less motor vehicle points, you generally do not require the services of a lawyer to negotiate this plea bargain on your own behalf.

However, it should be pointed out that there are a number of situations in which your acceptance of such a “no point” or “zero point” plea bargain may adversely affect your rights without your knowledge. One such situation is where you have already previously pled guilty to unsafe driving on more than one occasion. Your third guilty plea to unsafe driving within a certain period of time will subject you to four motor vehicle points when you may be under the mistaken belief that you will not be receiving any motor vehicle points. Another such situation where you potentially will need legal representation is where the low-level motor vehicle violation is the result of a motor vehicle accident. Under these circumstances, a guilty plea in Municipal Court may be utilized against you in the event you are sued civilly by the other driver. Finally, if you are a “provisional” license holder you are not entitled to enter into a plea bargain for a “zero point” unsafe driving violation and, as such, other arrangements will need to be negotiated on your behalf.