That Overlooked Footnote May Be a Masterpiece

Footnotes, like bazaar emporiums, can contain hidden treasures. The best part about both is that you never know when you’re going to stumble on something precious. It’s the innocuous-seeming footnote, similar to the unassuming and faded painting, that turns out to be a priceless find. Recently, I stumbled upon an inconspicuous footnote, in an unpublished appellate division decision, that made me vow to read every single footnote I would ever come across. Little did I suspect when reading this footnote that I was going to uncover a mother lode.

In State v. Lesser, A-4162-13T4 (App. Div. 2015), the defendant was arrested for DWI and subsequently charged with a refusal. In footnote two of the Lesser decision, the court wrote that the defendant was erroneously charged with a refusal under N.J.S.A. 39:4-50.2; and clarified that “the correct citation is N.J.S.A. 39:4-50.4(a).” Upon reading this footnote, I simultaneously experienced jubilation and frustration. Elated for having discovered a gold mine, I was equally flustered for not having discovered it earlier. I have seen countless tickets for 39:4-50.2 (charging my client with a refusal) and never thought twice about it.