DWI defenses in NJ 20-minute issue

DWI defenses in NJ

20-minute issue

The Supreme Court of New Jersey directed that breath testing take place after a period of 20 minutes of observation. This was the same 20-minute period that the Alcotest device was designed to lock out to prevent the possibility of contamination of breath test sample with mouth alcohol. 

 In the transcript from the state's summation, represented in State v. Chun, Supreme Court of New Jersey, Docket No. 58, 879. The Deputy Attorney General  represents to the court that the State feels that a  20 minutes observation is one of the most important safeguards for the Alcotest 7110 MKIII-C. The State has the obligation to prove every element of this case by proof beyond a reasonable doubt.

 More specifically with regard to breath testing, the Supreme Court of our State in Romano v. Kimmelman, 96 N.J. 66 (1984) has directed that the State be required to establish proper operation of the breath test device by clear and convincing evidence. Consequently, the breath test results should not be allowed into evidence to establish a per se violation unless the state proves a 20 minute continuous observation.

    If the Alcotest results are thrown out, the defendant can plead to a dwi with only a three-month suspension and no interlock.

   The defense attorney can also file a motion for additional Alcotest discovery, such as:

OPRA- foundational documents and Alcotest

Regarding Alcotest machine ARWD-0107

 (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator’s [109] credentials of the officer who performed that change;

 (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;

(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;

 (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;

(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records  (including both Parts I and II are offered));

 (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);

(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);

(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity)

(9) Calibrating Unit, New Standard Solution Report, following Calibration;

(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and

12 (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability. 

13 Operator manual and instruction manual for Alcotest® machine ARWD-0107

14 Verification of the date in which this Alcotest® machine ARWD-0107 was first placed into service.

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

16 Complete service and repair record from the Department and Dräger for this Alcotest® instrument  

17 Service, Repair and replacement records for Alcotest machine ARWD-0107

18

    

1.  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 __ breath tests both printed and/or stored in the instruments random access memory and/or downloaded to read only memory.

2.  Any breath testing logs maintained by the station or department in connection with the 7110 used to test __ breath.

3.  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 __ 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 __ 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 __ breath tests

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

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Avenue, Edison NJ 08817

732-572-0500

Pre trial motions in drug cases

1. No discovery Send a discovery letter/letter of representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges.

2. Suppression A timely Motion to Suppress Evidence must be made. Do it immediately; do not wait to receive discovery.

3. Subpoena witnesses defense counsel should subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting officer to compel him to bring to court the object allegedly observed in plain view. Credibility will be tested when the object that was claimed to be in plain view inside a car is actually only one half inch long. Cross examination is pivotal in determining credibility. Failure to subpoena a witness may be malpractice if your necessary witness is not present.

4. First Offender programs Many states provide that a person not previously convicted of a drug offense and who has not previously been granted "supervisory treatment" may apply for a conditional discharge/dismissal of charges. The court, upon notice to the prosecutor, may suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).

5. No lab tests The State must prove the substance seized was a controlled dangerous substance (CDS). To prove the substance is CDS, either the lab technician who examined the substance must be called testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendant's objection to the admission into evidence of the certificate, plus set forth the grounds for objection. Failure by defense counsel to timely object shall constitute a waiver of any objection to the certificate, thus, the certificate will be submitted into evidence. If the state can't introduce lab results, the state can't use.

6. Chain of Custody The State must then establish a chain of custody. The prosecutor's witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody.

7. Confession excluded If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request an Evidence rule hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966) have been violated. 8. Constructive possession not proven The burden of primary possession/constructive possession remains on the State.

The State must prove it was defendant's conscious intention to obtain or possess the item while being aware it was cocaine. Defendant's constructive possession may sometimes be shown by proof that the narcotics were subject to dominion and control. If two or more persons share actual or constructive possession, then their possession is joint. However, mere presence on premises where CDS is found is not sufficient, in itself, to justify an inference that a particular defendant was in sole or joint possession of the substance.
See http://www.njlaws.com/defense_to_possession_of_drugs.html

Driving under the influence not a violation of DWI law in NJ. See [State v. Machuzak

Driving under the influence not a violation of DWI law in NJ. See [State v. Machuzak, 227 N.J. Super. 279 (1988); State v. Johnson, 203 N.J. Super. 436 (1985)]

227 N.J. Super. 279 (1988)

546 A.2d 1099

STATE OF NEW JERSEY, PLAINTIFF, v. DANIEL MACHUZAK, DEFENDANT.

Superior Court of New Jersey, Law Division Somerset County.

Decided April 18, 1988.

PAUL T. MURPHY, J.S.C.

The defendant, Daniel Machuzak, was convicted in the Municipal Court, Montgomery Township, for driving while intoxicated in violation of N.J.S.A. 39:4-50. The statute under which defendant was convicted, N.J.S.A. 39:4-50, provides that a person who operates a motor vehicle while intoxicated shall be subject to penalty, including fines, community service, imprisonment and revocation of license. At the time of his arrest, defendant was operating a nonmotorized, pedal-type bicycle. Defendant appeals his conviction.

*281 A trial de novo was held on April 8, 1988. This Court reserved decision. Defendant does not deny his intoxication, rather the issue before this Court is whether the operator of a pedal bicycle falls within the purview of N.J.S.A. 39:4-50. For authority on this issue, the Court is faced with two conflicting Law Division cases which have not been resolved by any Appellate authority. Those cases are State v. Tehan, 190 N.J. Super. 348 (Law Div. 1982) and State v. Johnson, 203 N.J. Super. 436 (Law Div. 1985). Each of these decisions comes to a different conclusion.

Absent an appellate court's determination on point, a trial court is not bound to follow the holding of another trial court. Lackovic v. New England Paper Tube Co. 127 N.J. Super. 394 (App.Div. 1974). The State takes the position that State v. Tehan, supra, should be the controlling case for this Court's determination. In Tehan the trial court found that a person who operates a bicycle while intoxicated could be properly convicted under the motor vehicle drunk driving statute, N.J.S.A. 39:4-50, by virtue of the statute defining rights and duties of persons on bicycles. N.J.S.A. 39:4-14.1. The Tehan Court further held that although the penalty of license revocation was inapplicable since bicycling was not a licensed activity, other penalties such as fines, community service and incarceration, set out in the drunk driving statute, could be imposed.

The defendant, on the other hand, relies on State v. Johnson, supra. In that case the trial court refused to follow the Tehan decision, absent legislative authority. The Court in Johnson held that a defendant could not be convicted of operating a motor vehicle while under the influence of alcohol for operating a non-motorized pedal-type bicycle while intoxicated. In coming to this conclusion, the Court "scrutinized the detailed and technical definitions applicable to vehicles of all classes and found it to be clearly apparent from the plain language of the statute that muscular powered bicycles were not to be included" within the purview of N.J.S.A. 39:4-50. Id. at 439.

*282 The Court went on to note that "it is not the role of the judiciary to extend the language of a statute beyond that which has been legislated." Id. at 441; State v. Leonardo, 109 N.J. Super. 442 (App.Div. 1970); Newark Firemen's Mutual Benevolent Assoc. v. City of Newark, 90 N.J. 44 (1982). The Court concluded by stating that "If it is the intention of the Legislature that a bicycle be included as a motor vehicle and its operator subject to penalties for driving while intoxicated, then it is also the responsibility of the Legislature to make that clear." Id. 109 N.J. Super. at 442.

This Court is mindful of the inherent dangers that are posed when a person operates a motor vehicle or a bicycle on a public roadway while intoxicated. However, this Court concurs with the decision in State v. Johnson, supra, in finding that there is no statutory authority to convict the defendant for violation of N.J.S.A. 39:4-50. That statute specifically and unambiguously applies to motorized vehicles only. This is evidenced by the definitions set forth under N.J.S.A. 39:1-1. For example, the term "motor vehicle" is defined as "all vehicles propelled otherwise than by muscular power ..." Likewise, the term "vehicle" is defined to mean "every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power ..." Other definitions which support this Court's conclusion that non-motorized bicycles were not intended by the Legislature to fall within the ambit of N.J.S.A. 39:4-50 include the term "motorcycle" defined to include "motorcycles, motor bikes, bicycles with motors attached and all motor-operated vehicles of the bicycle or tricycle type ..." and "motorized bicycle" defined as a pedal bicycle having a motor.

It is abundantly clear to this court that the pertinent definitions found within N.J.S.A. 39:1-1 and used in the drunken driving statute were not intended to apply to non-motorized pedal-type bicycles. This court has no statutory authority to give greater effect to a statute than that which its language *283 requires. Belfer v. Borrella, 9 N.J. Super. 287 (App.Div. 1950). Nor should a court extend a statute to include persons not intended. Belfer, supra at 293.

This Court further concurs with the decision in State v. Johnson, supra, in finding that the defendant cannot be convicted under the drunk driving statute by virtue of N.J.S.A. 39:4-14.1. The condemned act must be plainly and unmistakably within the statute and any doubt as to the meaning of the statute must be resolved in favor of the defendant. State v. Wean, 86 N.J. Super. 283 (App.Div. 1965). It is the Legislature's function, not the Court's, to expand the scope of the Statute beyond the plainly expressed legislative intent. The legislative intent is to be discerned from the language of the Statute and Courts "cannot arbitrarily expand its scope beyond the plainly expressed legislative intent." State v. Wean, supra at 289, citing Dacunzo v. Edgye, 19 N.J. 443, 451 (1955).

Since it is the opinion of this court that N.J.S.A. 39:4-50 is inapplicable to bicyclists, defendant's conviction must be reversed.

DWI in NJ and trying to reduce license suspension from 7 months to three months

The Supreme Court of New Jersey directed that breath testing take place after a period of 20 minutes of observation. This was the same 20-minute period that the Alcotest device was designed to lock out to prevent the possibility of contamination of breath test sample with mouth alcohol.
 In the transcript from the state's summation, represented in State v. Chun, Supreme Court of New Jersey, Docket No. 58, 879. The Deputy Attorney General  represents to the court that the State feels that a  20 minutes observation is one of the most important safeguards for the Alcotest 7110 MKIII-C. The State has the obligation to prove every element of this case by proof beyond a reasonable doubt.
 More specifically with regard to breath testing, the Supreme Court of our State in Romano v. Kimmelman, 96 N.J. 66 (1984) has directed that the State be required to establish proper operation of the breath test device by clear and convincing evidence. Consequently, the breath test results should not be allowed into evidence to establish a per se violation unless the state proves a 20 minute continuous observation.
    If the Alcotest results are thrown out, the defendant can plead to a dwi with only a three-month suspension and no interlock.
   The defense attorney can also file a motion for additional alcotest discovery, such as:
Opra- foundational documents and alcotest

Regarding Alcotest machine ARWD-0107
 (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator’s [109] credentials of the officer who performed that change;
 (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;
(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;
 (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records  (including both Parts I and II are offered));
 (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);
(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);
(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity)
(9) Calibrating Unit, New Standard Solution Report, following Calibration;
(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and
12 (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.
13 Operator manual and instruction manual for Alcotest® machine ARWD-0107
14 Verification of the date in which this Alcotest® machine ARWD-0107 was first placed into service.
15 Date of fuel cell (EC) replacement, if any.
16 Complete service and repair record from the Department and Dräger for this Alcotest® instrument  
17 Service, Repair and replacement records for Alcotest machine ARWD-0107
18

   
1.  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 __ breath tests both printed and/or stored in the instruments random access memory and/or downloaded to read only memory.

2.  Any breath testing logs maintained by the station or department in connection with the 7110 used to test __ breath.

3.  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 __ 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 __ 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 __ breath tests
(iv) 0.100 simulator solution lot used in breath tests with the model CU-34 simulator used in __ breath tests



KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Avenue, Edison NJ 08817
732-572-0500

Search suppressed where illegal stop State v Zitter

STATE OF NEW JERSEY,

                        Plaintiff-Respondent,

            v.

JASON C. ZITTER,

                      NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

                                                                                    SUPERIOR COURT OF NEW JERSEY

                                                                                    APPELLATE DIVISION

                                                                                    DOCKET NO. A-4806-14T2

 

Submitted June 28, 2016 – Decided

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 09-03-15.

Law Office of John M. Walsh, PC, attorneys for appellant (John M. Walsh, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

            After unsuccessfully seeking the suppression of evidence obtained as a result of a motor vehicle stop, defendant entered a conditional guilty plea to driving while under the influence, N.J.S.A. 39:4-50, and pursued, by way of an appeal to the Law Division, his contention that the arresting officer lacked reasonable suspicion to stop his vehicle.  The Law Division judge rejected defendant's argument, and defendant appeals, reprising his contention that the officer lacked reasonable suspicion.  We agree with that argument and reverse.

            At a hearing in municipal court, the officer testified the sole ground for the stop arose from his belief that defendant made a right turn without signaling as prohibited by N.J.S.A. 39:4-126, which declares: "[n]o person shall [turn at an intersection or as otherwise defined] without giving an appropriate signal . . . provided in the event any other traffic may be affected by such movement."  There being no dispute that defendant made a turn without signaling, we focus on whether there was evidence to support a finding that the un-signaled turn "affected" "any other traffic." Ibid.

            In municipal court, the arresting officer testified he observed defendant and his companions depart a pizza restaurant in Avalon at 2:34 a.m., on July 18, 2014.  Defendant's vehicle proceeded onto Dune Drive; while following, the officer observed the vehicle turn right onto 22nd Street. From a distance of approximately twenty to twenty-five feet, the officer next observed defendant's vehicle make a right turn onto Ocean Drive; the officer did not see defendant signal in advance of that turn.  A short distance later, defendant signaled for and made a left turn onto 21st Street, and the officer activated his overhead lights. Defendant turned left and then into the driveway of his Harbor Drive residence. In the events that followed, defendant was arrested for driving while under the influence.

            As mentioned, the sole rationale for the vehicle stop was defendant's un-signaled right turn onto Ocean Drive. We start with the premise that not every turn of a vehicle must be preceded by a signal. In State v. Williamson, 138 N.J. 302, 304 (1994), the Court interpreted N.J.S.A. 39:4-126 as prohibiting only un-signaled turns that "have an effect on traffic." The arresting officer, who observed defendant's vehicle travel from the pizzeria to his driveway, testified there was no other traffic on the streets in question. And the officer never testified the operation of his own vehicle was impacted by defendant's un-signaled right turn onto Ocean Drive.

            To be sure, to prove the officer possessed an articulable and reasonable suspicion for making the vehicle stop, State v. Locurto, 157 N.J. 463, 470 (1999), the prosecution was not required to prove a violation of N.J.S.A. 39:4-126 beyond a reasonable doubt.  And, in considering defendant's contentions we must accept — although he never said — that the municipal judge found the officer credible.[1]  But those circumstances only distract us from the rather simple set of facts before us.  There being no other vehicles in sight when the turn was made, the only "other traffic" that could have been affected, ibid., consisted of the arresting officer's vehicle, and he never testified the operation of his vehicle was impacted by defendant's actions. Consequently, the officer could not have possessed a reasonable suspicion that defendant had committed a motor vehicle violation. There being no other articulated ground for the motor vehicle stop, its fruits must be suppressed.

            We, thus, reverse the order denying suppression, vacate the judgment of conviction, and remand for further proceedings in conformity with this opinion.  We do not retain jurisdiction.

---

[1] The Law Division judge, who never saw the officer testify, found him credible.

DWI Penalties

A person who operates a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or above is considered to be driving under the influence. A person may also be found to be driving under the influence through officer observation or other evidence.
First Offense - BAC 0.08% but less than 0.10% or no reading
• 3 months driving privilege suspension
• $250-$400 fine
• 12-48 hours at intoxicated driver resource center (IDRC) • Maximum 30 days imprisonment
$230 IDRC fee
$100 to drunk driving fund
$100 to AERF
$75 to Neighborhood Services Fund
plus court costs
First Offense - BAC 0.10% or higher
• 7 months to 1 year driving privilege suspension • $300-$500 fine • 12-48 hours IDRC
• 30 days maximum imprisonment*
$230 IDRC fee
$100 to drunk driving fund
$100 to AERF
$75 to Neighborhood Services Fund
plus court costs
Car Interlock Machine: First Offense, DWI w/BAC level below 0.15% or no reading, Court may impose
• 6 months – 1-year installation of interlock device after restoration of driving privileges
First Offense, DUI w/BAC level 0.15% or above and 1st refusal convictions, Court shall impose
• installation of interlock device required during the term of suspension and
• 6 months - 1 year installation of interlock device after restoration of driving privileges

   In addition to the court imposed fines and penalties, anyone convicted of DUI or chemical test refusal is subject to:
• an insurance surcharge of $1,000 a year for three years ($3,000) for the first and second conviction within a three- year period.
Plus 9 points on your car insurance
http://www.njlaws.com/driving_under_influence_dui.htm