On certification to the Superior Court, Law Division, Burlington County.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J.
[114 NJ Page 594] This appeal is from a judgment declaring invalid the current procedure employed by law enforcement personnel in issuing tickets for traffic violations. The Law Division held that for a ticket to be valid a judge, judicial clerk, or deputy clerk must, after the officer has given the driver a ticket, make an independent determination of probable cause. We hold that no such probable cause finding is required for a complaint charging the commission of a traffic offense.
Although we hold that the conviction under review is not subject to any attack based on the absence of this procedure, and vacate the order below dismissing the complaint, we nonetheless, remand the matter to the municipal court for a new trial, as it is undisputed that defendant received inadequate advice of his right to counsel.
Defendant, Manuel Gonzalez, was stopped on March 25, 1988, by Patrolman Dale Baranoski of the Westampton Township Police Department for speeding. After asking defendant to step out of his vehicle and patting him down, Officer Baranoski discovered marijuana in the defendant's pocket. The officer issued defendant a summons, which was part of a uniform traffic ticket, citing defendant for the possession of a controlled dangerous substance in a motor vehicle contrary to N.J.S.A. 39:4-49.1, speeding, and also for driving without insurance, since the defendant had failed to produce the proper documentation. The complaint, also part of the uniform traffic ticket, was completed and signed by Officer Baranoski, and routinely filed with the Westampton Municipal Court. No hearing on probable cause was held.
The defendant, appearing pro se, pled guilty to the speeding and insurance charges, but pled not guilty to the marijuana charge. He was tried in municipal court and found guilty of the possession of .06 grams of marijuana in a motor vehicle. As provided under N.J.S.A. 39:4-49.1, the municipal court imposed a fine of $50 and suspended the defendant's driver's license for two years.
Having retained an attorney, Mr. Gonzalez appealed to the Superior Court where he was entitled to a trial de novo on the record. R. 3:23-8. The trial court, in an opinion issued March 7, 1989, determined that the complaint should be dismissed, because of the absence of a "neutral, impartial" determination of probable cause. It further held that because the defendant
had not been represented by counsel below, and because of the potential magnitude of the issue, the defendant's failure to raise the issue at his initial trial did not preclude him from raising it on appeal.
On March 14, 1989, the trial court issued an order staying all Burlington County appeals, either of traffic offense convictions or from interlocutory orders, in which the defendants raised the probable cause issue, and further staying those pending proceedings in municipal courts in which defendants sought dismissal based on that issue. In light of the potential disruption that decision could create in the processing of traffic violations, we certified the case for direct appeal on our own motion, and issued a further order staying the judgment and order below. Under our order, all traffic and other municipal cases were to be prosecuted and appealed under the procedures in place prior to the trial court's decision, with the exception that license revocations and jail sentences imposed in cases covered by the initial order would remain stayed.
When a police officer stops a motorist for a traffic offense, the officer may immediately issue a summons, which is part of a uniform traffic ticket, and subsequently file the complaint. This procedure is authorized under Rule 7:3-1, which governs process in the municipal courts:
If the Administrative Director of the Courts has . . . prescribed the form of complaint and summons for non-indictable offenses, a law enforcement officer may make, sign and issue such complaint and summons, serving the summons upon the defendant and thereafter, without unnecessary delay, filing the complaint with the court named therein. . . . [ R. 7:3-1(b).]
Rule 7:6-1 specifically applies these procedures to traffic violations:
The complaint may be made and signed by a law enforcement officer, or by any other person, but the summons shall be signed and issued only by such officer, or the judge, clerk or deputy clerk of the court in which the complaint is, or is to be filed. R. 7:3 relating to warrants and summons in respect of nonindictable offenses generally, shall be applicable to cases involving a traffic offense, except as otherwise herein provided. [ R. 7:6-1(b), see also N.J.S.A. 39:5-25
(allowing law enforcement personnel to issue summons instead of making arrest for ...