3rd offender DWI defendant not entitled to jail credit for house arrest State v Haas

3rd offender DWI defendant not entitled to jail credit for house arrest State v Haas

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM HAAS,

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Defendant-Respondent.

__________________________________

March 13, 2015

Submitted January 26, 2015 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 34-2013.

Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Robin A. Hamett, Assistant Prosecutor, of counsel and on the briefs).

Helmer, Conley & Kasselman, P.A., attorneys for respondent (Patricia B. Quelch, of counsel and on the brief).

PER CURIAM

The question posed before us is whether defendant in this third-time driving while intoxicated ("DWI") case is entitled to jail credits for the 149-day period he spent under what was characterized in the Law Division as the functional equivalent of a "house arrest." The municipal court imposed the restriction, without any objection by defendant, as a condition of a stay of the 180-day custodial sentence mandated by the statute, pending de novo review of his DWI conviction in the Law Division. For the reasons that follow, we conclude that such credits are not authorized under the law, and reverse the Law Division's contrary determination. 

N.J.S.A. 39:4-50(a)(3) provides that for a third or subsequent conviction of DWI: 

[A] person shall be subject to a fine of $1,000.00, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term per each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center[.]

As we held in State v. Luthe, 383 N.J. Super. 512, 514 (App. Div. 2006), "[t]here is no allowance for noncustodial alternatives." 

The pertinent chronology implicating this statute is as follows. Defendant was convicted of his third DWI offense in the municipal court, after losing a motion to dismiss for alleged non-receipt of evidence obtained by the police. The municipal court ordered defendant placed in custody. 

Defense counsel requested a stay pending appeal de novo to the Law Division. The municipal court denied a stay. Defense counsel clarified that he only wished to stay the incarceration portion of the sentence under Rule7:13-2, which permits a stay "on such terms as the court deems appropriate." The municipal court asked what terms counsel would propose. After defense counsel advised that the appeal would take ninety days and that defendant was retired, the court stated the term that defendant be confined to his home except to consult with counsel and to see his doctors. Defense counsel asked for "one amendment," namely three, three-hour visits per week to his adult daughter to replicate the visits he represented he made to care for her due to her severe brain injury. The court agreed, and defense counsel replied, "that should be fine." Defendant appealed that DWI conviction, de novo, to the Law Division. 

After the Law Division judge denied his de novo appeal of the merits of his conviction and the related motion to dismiss, the lawyer now representing defendant argued that for 149 days defendant had been on "house arrest" imposed "in conjunction with this charge." The Law Division felt it had no choice but to give credit for "an improper sentence." When the prosecutor brought out that the "house arrest" was a condition of a stay defendant had sought, defense counsel questioned the municipal court's ability to set that condition, and asked the Law Division to sentence him to 31 days. The Law Division sentenced him to 180 days, but gave "the defendant the benefit of the doubt" and treated the 149 days defendant spent in house arrest as a jail credit. Defendant served the putative 31-day remainder of his jail sentence immediately at the county jail and waived double jeopardy arguments. 

The State now appeals, arguing that the house arrest is unauthorized by statute to be treated as a jail credit. We agree.

The statute could not be plainer about the sanction: a defendant found guilty of DWI for a third or successive time must be sentenced to imprisonment for a term of "not less than 180 days," and that time must be served "in a county jail or workhouse." N.J.S.A. 39:4-50(a)(3). The only enumerated potential exception is that the court, in its discretion, may reduce the custodial term by up to ninety days for each day the defendant served in an approved drug or alcohol inpatient rehabilitation program. N.J.S.A. 39:4-50(a)(3). See State v. French, 437 N.J. Super. 333, 338 (App. Div. 2014) (stating that "no discretion exists in Title 2C to replace half of the mandatory 180 days of incarceration with a non-jail rehabilitation program"); see also State v. Harris, __ N.J. Super. __, __ (App. Div. 2015) (slip op. at 4) (reaffirming French and concluding that a sentence to a home detention program, a community service program, or any other non-custodial alternative program is illegal under the analogous 180-day mandatory minimum provisions in N.J.S.A. 2C:40-26(a) or N.J.S.A. 2C:40-26(b)). 

The time that defendant spent in his consensual, so-called house arrest was not time served "in custody in jail or in a state hospital." R. 3:21-8. Not only did defendant have the freedom to leave his residence to visit with his doctors, his daughter, and his lawyers, there was no on-site supervision or monitoring device to assure his compliance with the terms of the court's order. Jail under N.J.S.A. 39:4-50(a)(3) means jail in a governmental facility, not the comforts of one's home.

Defendant did receive a modest benefit from the stay of his jail sentence while it was conditioned on the house arrest, as that stay postponed his immediate incarceration while he attempted to have the municipal court's motion ruling set aside and his conviction overturned in the Law Division. The grant of a stay was by no means guaranteed.  See State v. Robertson, 438 N.J. Super. 47, 74 (App. Div. 2014) (noting that the factors of Crowe v DeGioia, 90 N.J. 126 (1982), must guide courts in deciding whether to stay DWI sanctions pending appeal). Although we appreciate defendant's claim of redundancy arising out of his period of "house arrest" and the remaining portion of his mandatory jail term that he has yet to serve, that perceived redundancy was not caused by the State. The mandatory jail consequence prescribed by the Legislature must be carried out in full.

The Law Division's order granting defendant jail credits for the time he spent in house arrest is reversed. The matter is remanded to the Law Division for correction of the judgment of conviction to remove the 149-day credit that had been mistakenly awarded. 

To preserve the status quo and minimize disruption, we issue an interim stay of defendant's incarceration for twenty days after this opinion; if defendant files an application for Supreme Court review and for a stay by that time, the interim stay will remain in effect until such time as the Court can act on that application.

Reversed and remanded. We do not retain jurisdiction.

Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report State v. Kuropchak (A-41-13 )

 Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report  State v. Kuropchak (A-41-13 )

The municipal court’s admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court’s credibility findings, the matter is remanded for a new trial.

State of New Jersey v. Julie Kuropchak (A-41-13) (072718)

Argued October 21, 2014 -- Decided April 28, 2015

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, the Court considered the admissibility of evidence in the prosecution of driving while intoxicated (DWI) cases.

On January 25, 2010, at approximately 2:00 p.m., defendant had a sip of a margarita. Later, feeling ill, defendant took Nyquil and a homemade remedy of apple cider vinegar and water. At 8:30 p.m., defendant met with her doctor who prescribed an antibiotic and two pain relievers. Defendant immediately picked up the prescriptions, but did not take either. Driving home from the pharmacy, defendant turned onto a two-lane, two-way road that sloped uphill. When she reached the top of the hill, she saw an approaching vehicle straddling the center line. Defendant hit her brakes, swerved, collided with the oncoming vehicle, and lost consciousness.  

When she woke up, the car was filled with smoke and she tasted blood in her mouth. Officer Dennis Serritella responded to the scene and performed three sobriety tests, two of which defendant failed. He observed that she looked down multiple times, spaced out her steps, slurred her speech, and had bloodshot and watery eyes. Concluding that she was intoxicated, he arrested her.

       Defendant agreed to take an Alocotest (breathalyzer), which certified operator Officer Jose Brito performed. First, he observed her for twenty minutes. At 10:08 p.m., the machine performed a control test. He then administered the first set of tests at 10:11 (tests one through four). On tests two and three, defendant failed to produce the minimum volume of air for the Alcotest to generate a blood-alcohol level. The first and fourth tests yielded results, but they were not within an acceptable tolerance range. At 10:35 p.m., the Alcotest machine self-performed another control test. Officer Brito administered a second set of tests at 10:37 (tests five and six). Both tests yielded results, but they were also not within an acceptable tolerance range. The machine performed a control test at 10:53 p.m., after which Officer Brito administered a third set of tests at 10:54 (tests seven through nine). Defendant failed to produce a minimum volume of air on test seven. Tests eight and nine, however, both generated results of .10% BAC, which were within an acceptable tolerance range.

        At trial, Gary Aramini, an Alcotest expert, and Officer Serritella testified. Aramini said that the tests were done improperly and that the State had failed to enter the right simulator solution Certificate of Analysis and the most recent Calibrating Unit New Standard Solution Report into evidence. He also testified that Officer Brito failed to wait the required twenty minutes between the second and third set of tests and that lip balm, blood in defendant’s mouth, and a cell phone in the testing room may have tainted the results. The court admitted the Drinking Driving Questionnaire (DDQ) and Drinking Driving Report (DDR) into evidence as business records. The court also admitted Officer Brito’s Alcotest Operator Certification, the Alcotest Calibration Certificate, Part I -- Control Tests, the Alcotest Calibration Certificate, Part II -- Linearity Tests, the Calibrating Unit New Standard Solution Report for solution control lot number 08J060, and a Certificate of Analysis 0.10 Percent Breath Alcohol Simulator Solution. This Certificate was admitted without objection; however, the State concedes that it was for lot 09D065 rather than 08J060, which was the simulator solution used in defendant’s control test.

        On August 10, 2010, the municipal court found defendant guilty of DWI. On de novo review, giving due deference to the municipal court’s credibility determinations, the Law Division found defendant guilty of DWI.

The Appellate Division affirmed defendant’s conviction. This Court granted defendant’s petition for certification, limited to the admissibility of the documentary evidence, the Alcotest results, and the sufficiency of the observational evidence.   

      HELD: The municipal court’s admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court’s credibility findings, the matter is remanded for a new trial.

        1. If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division. The Law Division reviews the municipal court’s decision de novo, but defers to credibility findings of the municipal court.   

Appellate courts should defer to trial courts’ credibility findings. Occasionally, however, a trial court’s findings may be so clearly mistaken that the interests of justice demand intervention and correction.   

        2. A court may convict a defendant of DWI if she registers a blood alcohol level of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest’s reliability. The operator must observe the subject for twenty minutes. After twenty minutes, the Alcotest machine automatically conducts a blank air test to determine if there are any chemical interferents in the room. Additionally, a control test is conducted; if the Alcotest is working properly, that control test will generate a result between 0.095 and 0.105. The State must also admit certain foundational documents: (1) the most recent calibration report prior to a defendant’s test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant’s test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests to prove that the Alcotest was in working order.   

        3. Here, the last semi-annual calibration was completed on January 12, 2010, with simulator solution control lot 09D065. The solution control lot for the control test performed prior to and following the three rounds of breath tests performed on defendant was solution control lot 08J060. Under Chun, the State was required to provide the Certificate of Analysis of the 0.10 Simulator Solution used in defendant’s control test. The State, however, mistakenly admitted the Certificate of Analysis for the semi-annual simulator solution control lot 09D065 instead. Additionally, the most recent Calibrating Unit New Standards Solution Report was not admitted into evidence during the State’s case. Given that the foundational documents were not admitted into evidence, the State presented no evidence as to the reliability or accuracy of the Alcotest results and, therefore, defendant’s conviction of per se intoxication was improper.   

        4. Defendant contends that the DDR and the DDQ were admitted into evidence in violation of the Confrontation Clause. A person charged with a criminal offense has the right to confront his accusers. Officer Serritella’s documentation of the incident must be considered the recordation of testimonial statements because his observations were made to establish that defendant was driving while intoxicated. Since the officer testified at trial and was extensively cross-examined, the Confrontation Clause was not violated by the admission of the DDR and DDQ.   

        5. As for defendant’s contention that the DDR and DDQ are hearsay not subject to any exception, the Court observes that hearsay is inadmissible unless it fall into one of certain recognized exceptions. To qualify as a business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events described in it, and (3) under circumstances that indicate its trustworthiness. Foundational reports for breath testing, with certain qualifications, are admissible under the business record exception to the hearsay rule. Here, however, the DDR contains a narrative account of what the officer saw at the scene and includes factual statements, observations, and the officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the “remarks” section and the DWI report, in turn, contains several inadmissible opinions. The DDQ’s content thus also rises to the level of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside the scope of the business records exception.   

        6. Here, the municipal court heard defendant’s testimony concerning the events on the day of the incident, as well as the testimony of Officer Serritella. The court found the Officer’s testimony more credible than defendant’s and therefore found defendant guilty. The court’s credibility determinations, however, were made after the DDR and the DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after the Alcotest results were admitted into evidence despite the lack of requisite foundational documents.  

      The cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal court’s credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of events in this case – the inappropriate admission of the Alcotest results as well as the DDR and DDQ – that the Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained hearsay, Officer Serritella’s testimony would have alleviated much of that problem. Here, however, the cumulative effect of the errors may have tilted the municipal court’s credibility findings.   

      The judgment of the Appellate Division was REVERSED. The matter was REMANDED for a new trial.

sample discovery demand in an alcotest case

sample discovery demand in an alcotest case. More contained in the NJ ICLE book by Ken Vercammen & John Menzel

        Since this is an Alcotest case, demand is made that the Prosecutor and Police provide us with paper discovery, not electronic discovery, on attached Schedule A pursuant to Rule 3:13-3, Rule 7:7-7(b), the Open Public Records Act (OPRA) 47:1A-1 et seq. and the common law right to know under Shuttleworth v. City of Camden, 258 N.J. Super. 573 (App. Div. 1992).   Included is demand for dispatcher time records and all CAD REPORTS/ COMPUTER ASSISTED DISPATCH REPORTS.   

        Please preserve any video and advise if there is a video of the stop or arrest. If so, fax us the cost for the video and who the check is payable to. Please forward to me all documents which you have in your possession or which  are in the possession of any law enforcement agency or the complainant  involved in this case. Since there is a DWI moving violation, you must provide us with a driver's license abstract. The Court Rules require the Prosecutor and Court to review the abstract. Please advise immediately of the cost for discovery.

        In addition, each request is specifically sought under the rule of Brady v Maryland, 373 U.S. 83 (1963) and its progeny, and State v Polasky 216 N.J. Super. 549 (Law Div. 1986). Unless all requested discovery is received and Evid. Rule 807 is complied with, the defense will make a motion to dismiss all charges and will object to any attempt by the State to introduce evidence at trial. Demand is made for a speedy trial.

        I serve as Public Defender in Metuchen on Wednesday nights at 6:30 so I request no Wednesday night trials, if possible.  If the Court or the Prosecutor has any questions I would be glad to speak with you.

                                                     Respectfully submitted,

                                                     KENNETH   VERCAMMEN

                                                     Certified Municipal Court Law Attorney

KAV/

cc: client

        SCHEDULE A

DISCOVERY SCHEDULE- [Discovery List: DWI Alcotest 7110 Cases]

                                   ALCOTEST

        The following items are requested by defendant and defendant's expert if an Alcotest machine was used. Since my client does not have ready access to the internet, we request hard copy of documents, not a website link:

I. Documents explicitly set forth in the Order accompanying State v. Chun (following each item is a reference to which section of the Order provides for that item):

1. "All Dräeger Certificates of Accuracy" for the Alcotest(r) used to test Defendant's breath [3(C)(5)]

2. "Certification of Analysis" for the .10% simulator solution lot used during the Defendant's breath tests [6(B)(3)]

3. "Calibration Record" for the last calibration (must be within the last six months) of the Alcotest(r) used to test Defendant's breath, prior to the test [3(C)(6)]

4. "Certification of Analysis" for the .10% simulator solution lot identified on the "Calibration Record" document [3(C)(7)]

5. "Certificate of Accuracy" for the CU-34 identified on the "Calibration Record" document [3(C)(10)]

6. If the "Calibration Record" has a "Black Key Temperature Probe" identified by serial number, then we need the "Certificate of Accuracy" for it [3(C)(11)]

7. "Part I - Control Tests" from the last calibration [3(C)(6)]

8. "Certification of Analysis" for the .10% simulator solution lot identified on the "Part I - Control Tests" document [3(C)(7)]

9. "Certificate of Accuracy" for the CU-34 identified on the "Part I - Control Tests" document [3(C)(10)]

10. "Part II - Linearity Tests" from the last calibration [3(C)(6)]

11. "Certification of Analysis" for the .04% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)]

12. "Certification of Analysis" for the .08% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)]

13. "Certification of Analysis" for the .16% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)]

14.  "Certificate of Accuracy" for the CU-34 using  .04% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)]

15. "Certificate of Accuracy" for the CU-34 using  .08% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)] 

16. "Certificate of Accuracy" for the CU-34 using  .16% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)]

17. "Ertco-Hart (or other NIST traceable thermometer) Report of Calibration" [3(C)(12)]

18. "New Standard Solution Report" from the simulator solution change performed immediately after the last calibration [3(C)(9)]

19. "New Standard Solution Report" from the last simulator solution change performed on the Alcotest(r) used to test defendant's breath, prior to the test [3(C)(1)]

20. "Certification of Analysis" for the .10% simulator solution lot identified on the "New Standard Solution Report" [3(C)(2)]

21. "Certificate of Accuracy" for the CU-34 identified on the "New Standard Solution Report" [3(C)(3)]

22. All Alcotest(r) Certification Cards for any officials named on either the "Alcohol Influence Report", the "Calibration Record / Control Tests / Linearity Tests", or the "New Standard Solution Reports." [3(C)(1); 3(C)(6); 6(A); 6(B)(1)]

II. Documents the Supreme Court did not specifically state in the Chun Order, but which are inferred by the Order and are requested and are customarily provided without objection by the State:

23.               "Alcohol Influence Report" (A.I.R.)

24.               "Certificate of Accuracy" for the CU-34 calibrating unit used during the Defendant's breath tests 

25.               "Certification of Analysis" for the .10% simulator solution lot identified on the "New Standard Solution Report" (see #18 from Part I)

26.               "Certificate of Accuracy" for the CU-34 identified on the "New Standard Solution Report" (see #18 from Part I)

27.               "Certificate of Accuracy" for the "Temperature Probe," identified by serial number, for each "New Standard Solution Report" (see #18-21 from Part I)

III. Documents the Supreme Court did not specifically state but are requested and which are requested by our experts:

28.             At least one, but preferably five redacted A.I.R.s immediately preceding that of the Defendant.

29.             All available Alcotest(r) Data Downloads from the Alcotest(r) on which the Defendant was tested. These were performed yearly or after approximately 500 tests, whichever came first, prior to State v Chun.  They are now performed every six months or after approximately 500 tests, whichever comes first.

30.             Verification of the date in which the Alcotest(r) used to test the Defendant's breath was first placed into service.

31.             Date of fuel cell (EC) replacement, if any.

32.             Complete service and repair record from the Department and Dräger for the Alcotest(r) instrument used to test the Defendant's breath.

Other documents:

33.          video tapes

34.          audio tapes

35.          state's expert reports or statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion

36.          resume, curriculum vitae, or other summary of the expert's qualifications

        37 Our expert also wishes to inspect the area in which the Alcotest(s) is installed and the area immediately surrounding the installation, for purposes of observing, photographing and testing for the presence of RFI interference and EMI (electro motive interference).

Our expert also  requests:

38.        All alcohol influence report test data for air blank, simulator, subject, linearity, and any and all other tests conducted by the National Draeger Alcotest Model 7110 MKIII-C ["7110"] relevant to Defendant's breath tests both printed and/or stored in the instruments random access memory and/or downloaded to read only memory.

39.        Any breath testing logs maintained by the station or department in connection with the 7110 used to test Defendant's breath.

40.        State and manufacturer's assay, analysis, quality assurance, or similar documents and documents on each and every analysis, standard, and control run in the series of runs involving analysis of the following simulator solutions, including chemist's notes, gas chromatograph ("GC"] printouts, GC service records (if any), quality control manual, and testing procedures and custody documents for the simulator solutions:

        (i) 0.040 simulator solution let used in 7110 Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after Defendant's breath tests

        (ii) 0.080 simulator solution lot used in 7110 Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after Defendant's breath tests

        (iii) 0.160 simulator solution lot used in 7110- Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after Defendant's breath tests

        (iv) 0.100 simulator solution lot used in breath tests with the model CU-34 simulator used in Defendant's breath tests

41.  Records showing that the following simulators and the simulator temperature probes were and are in proper operating condition:

        a. The simulators  used in the Linearity Tests on the 7110 in Defendant's breath tests both before and after those tests

        b The simulator used in defendant's breath tests

42.         Records (i.e., appointment letter from the Attorney General and  operator certification replica card, front and back, showing that the Breath Test Coordinator Instructors (who inspected the 7110 and changed 7110 simulator solutions used in defendant's breath tests) was properly certified as such pursuant to the Administrative Code

43.         7110 New Jersey State Police Operator Manuals   State v Young 242 NJ Super. 467 (App. Div. 1990): STATE v. JOHN GREEN A-6199-08T4  11-09-10

44.         7110 Any other Operator Manuals

45.         7110 New Jersey State Police Service Manuals

46.         7110 Manufacturer's Service Manuals

47.         7110 Firmware instructions [to establish, among other things, minimum volume and duration requirements for acceptance of breath samples, prompts which induce an operator to charge or not to charge a subject with a breath test refusal, the degree of accuracy which the 7110 will accept, and the degree of precision within which the 7110 will deem multiple results reliable] for version 3.11 and previous versions 3.8, 3.9, and 3.10

48.         Calibrating Unit CU-34 New Jersey State Police Operator Manuals

49.        Calibrating Unit CU-34 Manufacturer Operating Manuals

50.         Calibrating Unit CU-34 New Jersey State Police Service Manuals

51.        Calibrating Unit CU-34 Manufacturers Service Manuals

52.        Initial certification course for certifying Alcotest operators

53.         One day conversion course for certifying Alcotest operators

54.         All interoffice communications, standard operating procedures, operational orders, memoranda, and other documents re the 7110

55.         All letters, memoranda, and other correspondence between New Jersey state agencies and the National Draeger re evaluation and modification of the 7110

        (1) BALANCE TESTS:

        If Defendant was told to do certain "tests" -- e.g.,  recite ABC's, count backwards, one-leg-stand, heel-to-toe stand, heel-to-toe walk, sway test, head tilt, waist bend, elephant hang, finger-to-nose, coin pick up, etc. --

        1.  documents describing how, under what conditions, and by whom each "test" was given

        2.  documents describing "test" results

        3.  training materials for each "test", including manuals, lesson plans, texts, tests, and article reprints

        At a time to be set by the Court, Defendant will make the following Motions and move for Orders pursuant to R. 3:10-5, 3:13-1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6-2(d) to preserve all of defendant's rights and defenses:

1. Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5-7 and 7:5-2, because evidence--ie defendant's person, breath, blood, and/or other things--was seized unlawfully, without a warrant  and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges.

2. Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny.

3. Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35-19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.