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A law that requires a driver to remain at the scene of a fatal accident, and give information to police, does not violate the right against self-incrimination, a New Jersey appeals court has held. Concerns about self-incrimination are generally not justified because one’s name, address and license information are “regulatory type information, which does not implicate the provider in criminal conduct,” the Appellate Division held Tuesday. The law in question, N.J.S.A. 2C:11-5.1, makes it a crime for a driver in an accident that leads to a death to leave without complying with the so-called hit-and-run statute, N.J.S.A. 39:4-129. That statute requires the driver to stay on the scene, assist any injured person and identify himself to any injured person, the occupants of the other car and police. If police are not present, the driver must report the accident to the nearest department and provide his name, address and license information. Jay Fisher, who struck and killed a man in Upper Pittsgrove Township in Salem County on July 27, 2005, pleaded guilty to violating N.J.S.A. 2C:11-5.1, while reserving the right to challenge its constitutionality. Since Fisher did not appear to be at fault for the death, he had no reasonable basis to fear prosecution by speaking to police and the privilege against self-incrimination was not implicated, according to Appellate Division Judge Rudy Coleman, joined by Francine Axelrad and William Gilroy. Under different facts raising a legitimate risk of self-incrimination, it might be necessary to provide the driver some form of immunity, the panel added. Fisher claims he was driving his truck on Richwood Road in the early morning hours when he swerved to avoid an object in the road and felt it hit his tires. He did not stop or report it and said he thought he had run over a deer carcass. When he noticed a dent in his bumper, a missing fog light and blood on the truck bed and the lower cab area, he washed the vehicle and ordered replacement parts. He did not go to police even after learning the next day of a hit-and-run accident on Richwood Road. When police located him by tracking down his GMC Sierra pickup truck based on evidence at the scene and a telephoned tip, Fisher initially said he had hit a deer on State Highway 77. Later, he gave a formal statement admitting he struck something on Richwood Road. The police found tissue samples on the truck that matched the DNA of the man who was killed. The police determined that the victim, who had apparently been sitting or crouching in the road when struck, was chiefly to blame. Fisher was charged with knowingly leaving the scene under 2C:11-5.1, and two counts of hindering the investigation under 2C:29-3b(1) and (4). He entered his conditional guilty plea and the hindering charges were dropped, but Salem County Superior Court Judge William Forester denied his motion to declare the law unconstitutional and sentenced him to five years’ probation and a $5,000 fine. Forester rejected the argument by Fisher’s lawyer, Carl Poplar, who said the law presented his client with a Hobson’s choice: exercise his Fifth Amendment right to silence and face prosecution under 2C:11-5.1 or comply and report the accident, exposing himself to prosecution under other laws. Forester held that the triggering act for liability under the law is the physical act of leaving the scene, and that Fisher would have had a defense if he had stopped and made a timely report. Though the appeals court affirmed the result, it disagreed with Forester that leaving the scene rather than failing to identify oneself to the police was the punishable act. Where it is impractical to remain at the scene, or the driver does not realize there had been an accident, leaving might be excusable, but there is still an obligation to report to the police as soon as possible, stated the court. Poplar, of Cherry Hill, says he will seek an appeal. The Fifth Amendment does not merely protect against compelled confessions, but against any coerced statement that might tend to incriminate, he says. Though a violation of 2C:11-5.1 was a third-degree offense at the time of Fisher’s accident, it was elevated to a second-degree offense earlier this year and now carries a presumption of incarceration, Poplar points out. He also thinks it might be subject to the No Early Release Act, which requires those convicted of violent felonies to serve at least 85 recent of their sentences. Deputy Attorney General Frank Muroski handled the appeal. David Wald, a spokesman for the attorney general, says the office got involved because of the constitutional issue. “We think the court properly recognized that the requirement of supplying information to the police that identifies yourself – i.e., your name & address – is not incriminating,” adds Wald. The case is State v. Fisher , A-3026-05.

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