Reported and written by Sergio Bichao and David Matthau

TRENTON — A state law that required towns to use a new $25 DWI fine to pay for installing video recording devices in police cars was overturned earlier this year.

But months later, municipal court judges across the state don’t appear to have gotten the memo.

Thousands of defendants convicted of drunk driving every month are still being fined the $25 special surcharge that was tied to the now-defunct law, New Jersey 101.5 has learned.

The state appears to be ignoring or not recognizing the state Council on Local Mandates’ edict that invalidated the surcharge. As a result, officials have now collected close to a million dollars in money that is not being used for the purpose that the Legislature intended it to be used.

Assistant Deputy Attorney General Stephan Finkel, the office's legislative affairs director, said Wednesday that only the police video portion of the law had been ruled an unfunded mandate.

“The surcharge provision, which was a different part of the law intending to fund the purchase of the mobile video recorders, that was not declared to be an unfunded mandate, so it remains on the books and is still being enforced, and it’s providing revenue that municipalities can used to purchase video recorders, even though they’re not mandated to do that anymore.”

But that’s not what the council’s April 20 decision says.

In the six-page decision, “the Council declares” the law “to be unconstitutional.”

“That determination,” the decision continues, “renders nugatory the $25 surcharge described” in the law and regulations.

Story continues below. Read the full decision: Click here if document doesn't display below.

The Council on Local Mandates is a nonpartisan and independent panel created in 1996 in order to protect local governments from state regulations that burden property-tax payers.

Peter H. Lederman, a Freehold attorney who has handled more than 4,500 DWI cases, says the council’s decisions are supposed to be final and the state’s continued collecting of the surcharge is an “invasive, ongoing abuse of power.”

“I think it's outrageous ... it’s not responsible," Lederman said Wednesday. "I want to see the system work but something like this, it makes you shake your head.”

Lederman said in a recent case, he convinced a municipal court judge that the $25 surcharge had been declared unconstitutional. But the court clerk told the judge that the state's computers wouldn’t allow them to process a DWI conviction without including the $25 special surcharge. The judge got around that by reducing a different fine against his client by $25, Lederman said.

The $25 special surcharge is tacked onto the other surcharges, fees and fines that a DWI defendant is ordered to pay.

“It’s a problem," he said. "I don’t know why it’s still happening. Maybe because the state is glad to receive any funding it can get from whatever source, and for whatever reason.”

Finkel, however, argued that the surcharge can't be considered an unfunded mandate because it's only a "funding mechanism" and it "doesn’t impose any additional cost on municipalities."

“If the Legislature wishes to redirect those funds or do away with the surcharge, that would be its own prerogative. So in the meantime, the money would be available for municipalities to use for that purpose of equipping their patrol cars if they so choose, but they don’t have to.”

It's unclear exactly how much money the state has collected with this surcharge, or how much of it has been sent back to the municipalities where the DWI summonses were issued.

A spokesman for the state Treasury Department referred detailed questions about the funding to the Administrative Office of the Courts, which referred our questions to the Attorney General’s Office, which did not know how much money the state had collected.

When New Jersey 101.5 requested a public report detailing the number of DWI convictions this year in every municipal court in the state, the state judiciary (which is not subject to the Open Public Records Act and its rules against charging citizens excessive service fees) demanded a payment of $5,537.50 — an amount that New Jersey 101.5 declined to pay.

Attorneys in New Jersey, however, estimate that 20,000 DWI offenses are heard every year in New Jersey's municipal courts. That means the $25 surcharge could render as much as $500,000 a year. The law had been in effect since March 2015.

Another aspect of the state's DWI laws are coming under legal challenge.

The state is being sued in federal court in a complaint that seeks to potentially throw out thousands of DWI convictions after a State Police sergeant was accused of botching the calibration of breathalyzers police use on suspected drunk drivers.

Last week, a grand jury indicted Sgt. Marc Dennis on charges of second-degree official misconduct, third-degree tampering with public records and fourth-degree falsifying records.

Sergio Bichao is deputy digital editor at New Jersey 101.5. Send him news tips: Call 609-438-1015 or email sergio.bichao@townsquaremedia.com.

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