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Lawyers who practice in New Jersey municipal court say Gov. James McGreevey’s proposed $200 surcharge on every unsafe-driving conviction is a crafty attempt to capitalize on motorists’ fear of high insurance rates and would turn municipal courts into tax collection agencies. McGreevey included the surcharge in Tuesday’s proposals for $625 million in tax and fee increases he says he needs to balance the 2005 budget without raising levies on incomes and sales. The surcharge alone would raise $44 million if guilty pleas to unsafe driving continue at the 2003 rate of 223,000. The proposal is ingenious because the unsafe-driving statute, N.J.S.A. 39:4-97.2, appears to be something that New Jersey residents can’t do without and are willing to pay extra for. Every day in courts across the state, motorists slapped with summonses for speeding and who have relatively clean driving records are permitted to plead guilty to unsafe driving under bargains freely granted by prosecutors. The deals are wildly popular among first-time offenders and their lawyers because a plea to unsafe driving carries a fine of $50 to $150 and no points. A motorist who pleads guilty by mail to the speeding charge pays only $81. But that results in two points on the license — and the dreaded notification to insurance companies and the possibility of higher premiums. No wonder defendants have embraced unsafe-driving pleas. And without them, courts would be clogged with trials that take police officers off the streets. Indeed, the statute was created in 2000 as a calendar-clearing tool for courts bogged down with speeding ticket cases. Municipal court practitioners interviewed last week say the tax gurus in the McGreevey administration were right when they calculated that the vast majority of defendants with speeding tickets would pay an extra $200 rather than go to trial. As a practical matter, the typical first-time speeder with a clean driving record would pay more than $350 in fines, costs and surcharges. The maximum penalty for a third offense could be $700 plus costs. “My feeling is that people will pay it,” said Alan Marain, who has a firm in New Brunswick. “Even with the $200 extra, it would be a net saving compared to what they would pay if their insurance rates went up.” A two-point speeding ticket given for driving 14 miles per hour or less over the speed limit doesn’t trigger state surcharges or automatically affect insurance rates. But it puts the driver further along the road to adverse consequences caused by a second or third speeding offense, said Marain and Red Bank solo practitioner Randolph Wolf. They suggested it’s hard to imagine a scenario in which a lawyer would advise a client to risk a trial on the speeding charge or accept points that stay on a license for three years rather than accept an unsafe-driving plea requiring a one-time payment that includes the additional $200. Nor will the surcharge affect the average defendant’s decision on whether to hire a lawyer, they said. The proposal is troublesome to lawyers like Marain and Wolf because they believe it would add to a perception that municipal courts are not so much temples of justice but countinghouses for governments short of revenue. That impression was enhanced last year when the Legislature raised the fine for failure to present licenses, registrations and insurance cards. The ticket for that offense is now in the $170 range with costs, more than triple the previous sum. Many judges will waive the fine if the defendant finds the papers and takes them to court to show they were merely mislaid when the police officer asked to see them. Still, Wolf said, the higher fine seems to have no purpose but to raise revenue. State surcharges aren’t waivable. “If the state spent more time trying to find waste instead of trying to nickel-dime people, we would be a lot better off,” said Elliot Wiesner, a solo practitioner in New Brunswick. Wiesner is legislative coordinator of the New Jersey State Bar Association’s municipal Court practice section. He and the chairman, Kenneth Vercammen, who has a firm in Edison, said that the issue is likely to come up at the section’s meeting this month but that there’s no telling whether the association as a whole might take a position. Vercammen and David Bunevich, the prosecutor in the regional North Hunterdon Municipal Court, said they can envision cases in which a defendant who would now take a plea worth, say, $183, might be willing to go to trial if the penalty were $383. “I’m not afraid of having a trial,” Vercammen said. He also said pleas to other, lesser offenses that do not carry a surcharge might also be available. But given directives on the subject by the Administrative Office of the Courts, that’s not likely, other lawyers said. In a directive in 2000, the AOC told judges and prosecutors to stop allowing defendants to plead guilty to lesser offenses that did not seem to have any relation to speeding, such as N.J.S.A. 39:4-67, obstructing traffic. The directive caused immediate concern among municipal court lawyers and judges because it threatened to bring plea-bargaining to a halt. To cure the problem, Assemblymen Christopher Bateman, R-Somerset, and Neil Cohen, D-Union, proposed the addition of unsafe driving to the list of offenses, and their bills were adopted within three months. Bateman said on Friday that he is so upset about the proposed surcharge that he is working on a bill to create another statute — free of any surcharges — to replace unsafe driving as the lesser offense of choice in speeding cases. “The purpose of the unsafe-driving statute was to give people a break — people who had good records,” he said. “Now you’re going to end up paying nearly $400. I think it’s outrageous. “Unfortunately, municipal courts have become real revenue raisers for the state,” said Bateman, a partner in DiFrancesco Bateman Coley Yospin Kunzman Davis & Lehrer. AOC spokeswoman Winnie Comfort declined to comment on the surcharge proposal. Bunevich said it looks to him as if the Treasury Department found an easy target in unsafe-driving pleas. “What they’ve done is look in their computers and see how frequent it is,” he said. He said the proposal seems to conflict with the goals of justice and the tasks of prosecutors. “The AOC preaches to judges that they’re there to do justice, not collect fines,” he said. “I’m not there to collect money for the state. That’s antithetical to the mission. “Don’t you think there’s a sense of money grabbing?” Like all the budget proposals, the surcharge is far from a done deal. Treasury spokesman Thomas Vincz said the entire package of tax and fee increases is necessary to balance the budget and avoid hikes in income and sales taxes, but it’s too early in the budget process to know the details of the surcharge proposal. He said internal discussions will continue and hearings around the state will be held before a final budget proposal is sent to the legislators, who can tinker as much as they want. This article originally appeared in the New Jersey Law Journal , a publication of American Lawyer Media.

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