DWI Refusal notice withstands challenge State v Quintero

DWI Refusal notice withstands challenge

State v Quintero __ NJ Super __(App. Div. 2016)

The court affirms defendant's de novo conviction for refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. Defendant argues that the Attorney General's current standard statement under N.J.S.A. 39:4-50.2(e) is fundamentally deficient for not specifying the mandatory minimum penalties for refusal. In State v. O'Driscoll, 215 N.J. 461, 479-480 (2013), the Supreme Court noted, but declined to address, the sufficiency of the standard statement.

The court hold that the current standard statement satisfies the statutory mandate — that is, informing motorists and impelling compliance — by adequately informing drivers of the maximum potential license revocation and fine, and the possibility of ignition interlock, that they face for refusal. In so ruling, The court note that adding other details, including the differing mandatory minimum and maximum penalties for first offenders, second offenders, and certain third offenders, may run the risk of submerging the most significant penalties in those details.

Conditional discharge and dismissal of first time drug offense

Conditional discharge and dismissal of first time drug offense

Conditional discharge and dismissal of first time drug offense

Consequences of a Criminal Guilty Plea in Municipal Court

Consequences of a Criminal Guilty Plea in Municipal Court

1. If you plead guilty you will have a criminal record.

2. Before the judge can accept your guilty plea, you will have to stand up in open court and tell the judge what you did that makes you guilty of the particular offense in front of all persons in the courtroom.

3. You can go to jail, pay thousands of dollars in fines, and may be barred from future employment

4. You may not be able to get a job as a teacher, public employee, banking industry, real estate or other state regulated field.

5. On employment applications, the answer to a question was you convicted of a criminal offense would be yes.

6. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty.

7. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation.

8. In all drug cases, the statute requires mandatory driver’s license suspension. New Jersey does not have a special license to go to work or school.

9. In certain matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and you pay for the cost of testing.

10. You must pay restitution if the court finds there is a victim who has suffered a loss.

11. Future employers may not hire you because you have a criminal record. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty.

12. If you are not a United States citizen or national, you may be deported/removed by virtue of your plea of guilty or denied the opportunity to become a citizen.

13. You must wait 3-5 years to expunge a first offense.  2C:52-3

14. You lose the presumption against incarceration in certain cases. 2C:44-1

Copyright 2016 Vercammen Law

KENNETH VERCAMMEN & ASSOCIATES, PC

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 (Fax)    732-572-0030

www.BeNotGuilty.com

Cases to object to lab reports in DWI blood and urine cases Middlesex County East Brunswick Edison Highland Park Jamesburg Metuchen Middlesex Boro Milltown Monroe New Brunswick North Brunswick Old Bridge Perth Amboy Piscataway Plainsboro South Brunswick South Plainfield South River Spotswood Woodbridge Carteret Cranbury Dunellen

Cases to object to lab reports in DWI blood and urine cases

In criminal cases, the State routinely retains scientists and analysts to perform tests on a suspect’s blood to detect the presence of drugs or alcohol.

The Sixth Amendment’s Confrontation Clause generally bars the admission of an absent witness’s out-of-court testimonial hearsay as a substitute for live in-court testimony when the accused has not had the opportunity to cross-examine the absent witness. Crawford v. Washington, 541 U.S. 36, 50-62, 124 S. Ct. 1354, 1363-71, 158 L. Ed. 2d 177, 192-99 (2004).

The purpose of the Confrontation Clause is not to foster expedient trial procedures, but to ensure that testimonial evidence is tested in the crucible of cross-examination -- however time consuming or difficult that process may be. See Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. Thus, chemical analysts who provide out-of-court “testimony” through laboratory reports must be made available for cross-examination. Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2716, 180 L. Ed. 2d at 622.

Curtailing confrontation rights is not the answer to the uncertainty in federal jurisprudence.

The admission of testimonial statements from witnesses absent from trial violates the Sixth Amendment’s Confrontation Clause unless the witnesses are “unavailable,” and “the defendant has had a prior opportunity to cross-examine” them. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. A statement is “testimonial” if the primary purpose of making the statement is to establish a fact as evidence in a later criminal prosecution. Bullcoming, supra, 564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d at 620 n.6 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).

Applying that test in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321 (2009), the Court held that a laboratory report identifying a substance as cocaine was testimonial evidence and therefore its admission at trial, without the testimony of the analyst who prepared it, violated the Sixth Amendment’s Confrontation Clause. The report in Melendez-Diaz was created for the specific purpose of serving “as evidence in a criminal proceeding.” Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 615.

Bullcoming presented a variation of the theme in Melendez-Diaz. In Bullcoming, the Court held that the in-court testimony of a scientist who did not conduct or participate in any laboratory tests relevant to the case, but who read into evidence the actual analyst’s test results contained in a certified report, violated the Confrontation Clause. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619.

In Bullcoming, the defendant was arrested for driving while intoxicated (DWI). Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. A blood sample was taken from him at a hospital and submitted for testing at a state laboratory. Ibid. A forensic analyst operated a gas chromatograph machine to test Bullcoming’s blood sample and determined his blood alcohol content (BAC). Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617. The Supreme Court made the following observations about the operation of the gas chromatograph machine: “‘[T]he analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.’” Id. at ___ n.1, 131 S. Ct. at 2711 n.1, 180 L. Ed. 2d at 617 n.1 (quoting David T. Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine ed., 2d ed. 2006)). Although the gas chromatograph machine produces a printed graph, securing “an accurate BAC measurement . . . is not so simple or certain.” Ibid.

The forensic analyst determined that Bullcoming’s BAC was 0.21, a level sufficient to support a conviction for aggravated DWI. Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617–18. The analyst was not called as a witness at Bullcoming’s trial. Id. at ___, 131 S. Ct. at 2711–12, 180 L. Ed. 2d at 618. Instead, the State called Gerasimos Razatos, a scientist also qualified as an expert in the gas chromatograph machine but who did not participate in testing Bullcoming’s blood. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live, in-court testimony” about laboratory procedures, the machine’s operation, and the results of the BAC test. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. In addition, the analyst’s report was admitted as a business record. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618.

The United States Supreme Court held that Razatos’s surrogate testimony violated the Confrontation Clause because Bullcoming did not have the opportunity to cross-examine the forensic analyst who tested his blood. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. According to the Court, the surrogate expert’s testimony “could not convey what [the forensic analyst] knew or observed about the events his [laboratory report] concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part.” Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Indeed, at trial, Razatos admitted that “‘you don’t know unless you actually observe the analysis that someone else conducts, whether they followed the protocol in every instance.’” Id. at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L. Ed. 2d at 622 n.8 (alteration in original). Razatos, moreover, was unable to testify why the forensic analyst was on unpaid leave. Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Thus, the defense could not ask “questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for [the forensic analyst’s] removal from his work station.” Ibid.

The Supreme Court reached conclusions relevant to the facts before the court. First, “the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar.” Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 621. Second, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess “‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’” Ibid. (quoting Melendez-Diaz, supra, 557 U.S. at 319 n.6, 129 S. Ct. at 2537 n.6, 174 L. Ed. 2d at 327 n.6).

In her concurring opinion, Justice Sotomayor noted that Bullcoming would have been “a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results.” Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629. Razatos did not observe the testing of the forensic analyst. Ibid.

B.

In Williams v. Illinois, supra, the Court divided over the question of whether a DNA profile, prepared by a specialist who did not testify, was offered for the truth of its contents. 567 U.S. at ___, ___, 132 S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99, 108 (plurality opinion).  No justice in Williams suggested that passing testimonial statements offered for their truth through a surrogate witness would be acceptable under the Confrontation Clause.

See State v. O’Neill, 193 N.J. 148, 175 (2007) (affording protections to accused under state law when “[t]he shifting sands of federal jurisprudence provide no certainty concerning the standard that might apply to the next set of slightly different facts”). Cautious prosecutors can still place on the stand the chemist or analyst who actually conducted the test and will not have to worry about a United States Supreme Court decision upending a conviction.

10 Tips on Defending the DWI blood & urine case Middlesex County East Brunswick Edison Highland Park Jamesburg Metuchen Middlesex Boro Milltown Monroe New Brunswick North Brunswick Old Bridge Perth Amboy Piscataway Plainsboro South Brunswick South Plainfield South River Spotswood Woodbridge Carteret Cranbury Dunellen

10 Tips on Defending the DWI blood & urine case

By Kenneth Vercammen, Co-chair, ABA Criminal Law Committee Solo Division

1.       Make a detailed request for blood records discovery, not sending a short lazy letter “Please provide discovery…”  The following is a portion of our form discovery demands from the NJ ICLE seminar book “Handling Drug, DWI and Serious Motor Vehicle Offenses” by Ken Vercammen and John Menzel, JD.

Ex: My client is charged with DWI, which has Consequences of Magnitude.

     Additional Discovery demanded by defense and expert:

1 all gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div.1986).   

2. All results and notes of any tests performed.

3. The operator's manual for all instruments used to test the substances, pursuant to State v Green 417 NJ Super. 190 (App. Div. 2010) and State v Ford 240 N.J. Super. 44 (App. Div. 1990). Defense requests all operating procedures, instruction manuals, test protocols, maintenance logs of the gas chromatograph or equipment used, performance evaluations, and test result printouts.

4. resume and personnel file of scientist

5. all the 911 and police calls for date of violation.

6. All video for police vehicles or other video available.

7. names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by the state as to which of those persons the state may call as witnesses; and their dates of birth

     2. Make a formal Demand for documents regarding Field Sobriety testing. Also make a separate request for Public records under the Open Public Records OPRA law to township clerk and police chief.

1.   training materials for each any "test" usually given to individuals under suspicion of DWI including manuals, lesson plans, texts, tests, and article reprints kept by Police department.

2.   Many departments rely on the NHTSA Manuals dealing with field sobriety. If your department relies on these manuals, please provide a copy of the specific manual relied on by Police department

3.   Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of walk and turn

4.   Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of finger to nose.

5.   Documents which set forth, Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform other field sobriety tests, such as the one legged stand.

6.   The most recent training manual for Field Sobriety Testing by Police department

7.   The NHTSA Manuals dealing with field sobriety in Police department.

8.   Documents from NHTSA dealing with field sobriety tests in Police department

9.   Documents from NJ Division of Highway Traffic Safety dealing with field sobriety tests in Police department.

10. Documents used by Police department involving HGN testing

11. Documents showing Defendant's informed consent to taking of samples.

3. File applicable Motions without lengthy briefs. Examples:

1.   Suppress Evidence  [must be in writing]

2.   Miranda/Privilege

3.    Exclude Lab Tests

4.    Demand for Specific Discovery

5.   Notice of Objection to Lab Reports

6.   Speedy Trial

It is a good idea to be detailed in your objection to lab report. For example:

“Pursuant to ­­N.J.S.A. 2C: 35-19, the defendant through attorney, Kenneth A. Vercammen, does hereby object to the entry of proffered laboratory certificate as evidence at the time of trial in this matter, pursuant to Bullcoming v New Mexico 131 S. Ct. 2705 (2011), Crawford v. Washington 541 U.S. 36 (2004), State v. Berezansky 386 NJ Super. 84 (App. Div. 2006), State v. Kent 391 NJ Super. 352 (App. Div. 2007) State v. Renshaw 390 NJ Super. 456 (App. Div. 2007), State v. Simbara 175 NJ 37 (2002) and State of New Jersey in the Interest of C.D. and P.G. 354 NJ Super. 457 (App. Div. 2002). The certificate is not clear, and has not been fully certified in accordance with N.J.S.A. 2C: 35-19 (b).  The certificate fails to detail the analysis performed, the subscriber's full training and experience, the nature and condition of the equipment used, or the full conclusions reached by the subscriber. Defendant also 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.

         The State has failed to provide all results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986) and State v Green 417 NJ Super. 190 (App. Div. 2010). The defense requests these results and notes.

         PLEASE TAKE FURTHER NOTICE that at the time of trial, the defendant shall contest the chain of custody with respect to the sample, and subsequent tests performed thereon.”

4. Copy and mail discovery to your client to review and comment

    ex Letter to client: Please read the enclosed police records, which are called Discovery from the Prosecutor. Please write down any inaccurate statements or comments and mail them back to the law office. Please reference the page and paragraph of the inaccurate details. Do not call to indicate the inaccurate details. Keep the portions of Discovery that are correct.

5. Watch the video, then have client watch the video either in your office or at home

    ex: Please find enclosed a copy of the DVD video of your police stop. Please carefully type up or hand print detailed notes indicating what happened and what was said plus write the exact time of each occurrence.  When you have completed your review please return the video along with your notes and observations to our office. It is important to write down everything the police said, and everything you said. Watch the video more than once.

Ex  write down:

1:01:33am  officer said……

1:01:43 am   driver said

1:02: 09 am   officer did….

         If you hand write, your print must be legible. Return the video and your notes within 5 days.

6. If no response to discovery within 15 days, send reminder letters to prosecutor and call whoever handles discovery, then file a discovery motion

Prior to filing a discovery motion, under Court Rule 7:7-7h, you must confer with, or attempt to confer with the prosecutor. Typically I try not to bother the prosecutor in their private law office, but this revised court rule requiring conferring prior to filing a Motion of Motion to compel discovery or dismiss for failure to provide discovery. If complete discovery not provided, file a Motion under State v Holup 253 NJ Super. 320 (App. Div. 1992).

7. File your brief to challenge the stop of any vehicle       

The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches.  Delaware v. Prouse 99 S.Ct. 1391, 1401 (1979); State  v.  Patino, 83 N.J. 1 (1980).  If there was no indication that motor vehicle laws were violated or that any other laws were violated, police officers will have violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches. To help prepare for the Suppression motion, your Clients may wish to take photos of stop/accident location.  Clients may also wish to prepare a diagram of the stop/ accident location.

8. If no warrant, after discovery received file brief in opposition to the blood taken without a warrant.

As a criminal defense attorney, the US Supreme Court McNeely case will help you defend your clients. The US Supreme Court indicates a warrant should be obtained before the routine taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013). McNeely involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. 

9.  Bring a proposed Order to court on discovery

       Prepare a proposed Discovery Order.  Forward to the prosecutor and court to avoid unfair surprise. At the status conference, insist that that Prosecutor review the proposed Order for the State and Lab to provide discovery.  Often the defense attorney and prosecutor can agree on items to be provided and items no longer needed. Have the Judge sign the discovery order. If there is no agreement, the court can rule on the record which items are to be provided and which items not to be provided.

10. Prepare a written objection to Chain of Custody

    Some judges claim that if there is no written objection to chain of custody, the state does not have to bring in witnesses.

       "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. "A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993). ) (detective identified samples tested and testified to "usual police procedure for identifying, safeguarding, and processing) This foundation should include a showing of an uninterrupted chain of custody. Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27, (App. Div.), certif. denied, 51 N.J. 468 (1968)).

Where an incriminating object has passed out of the possession of the original receiver and into the possession of others, the “chain of possession” must be established to avoid any inference that there has been substitution or tampering. State v. Brown, 99 N.J.Super. 22, 27 (App. Div.), certif.den. 51 N.J. 468 (1968); State v. Johnson, 90 N.J.Super. 105, 113 (App. Div. 1965), aff'd 46 N.J. 289 (1966).

         Prepare for cross-examination using the procedures and manuals of the Attorney General’s office, many of which are online.

CONCLUSION

         The defense of a person in a DWI blood case is not impossible. There are a number of viable defense and arguments which can be pursued to achieve a successful result.  Advocacy, commitment and persistence are essential to defending a client in any municipal court matter.

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he  handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of  the Municipal Court Section he has served on its board for 10 years. 

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

         For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

         Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500