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Arrested for DUI? Pretrial motions to be filed
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Pretrial Motions
1. Notice of Objection to Lab Reports
2.
Punishment
3.
Vagueness
4.
Suppress Evidence
5.
Miranda/Privilege
6.
Test Ampoules
7.
Exclude Breath Tests
8.
Discovery
9. Reciprocal Discovery
10. Speedy Trial
PRE‑TRIAL
MOTIONS
At
a time to be set by the Court, Defendant will 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. 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.
2.
Punishment. Defendant will move to dismiss the 39:4‑50 complaint because
statutory punishments are cruel unusual in that they are disproportionate to a
motor vehicle violation and contrary to US Constitutional. (Amendments VIII and
XIV N.J. Const. Art. 1, para. 1'. See Gregg v. Georgia, 428 U.S. 96
S.Ct. 2909. 49 L.Ed.2d 859 (1976); State v. Smith, 58 N.J (1971).
3. Vagueness. Defendant will move to dismiss
the 39:4‑50 complaint because the statute, at least as to the so-called
"per se" violation, is vague and contrary to U.S. Amends. V, VI, IX, and XIV, and N.J.
Const. Art.1, paras.1, 5, See Kolender v. Lawson, 461 US. 352,
103 S.Ct. 18S 903 (1983).
4.
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.
5.
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.
6.
Exclude Breath Tests. If police used a breath testing instrument in this
case, Defendant will move to exclude evidence(‑ of breath test results because
(a) the Attorney General failed to exercise administrative authority and
prescribe methods and procedures for periodic inspection of breath testing
instruments as required by N.J.S. 39:4‑50.3, and (b) without such properly
prescribed methods and procedures, the State cannot lay the foundation needed
for admission of breath test results into evidence at trial. See Romano v.
Kimmelman, 96 N.J. 66, 81 (1984).
GENERAL
PROVISIONS
7.
Discovery Defendant requests that
the State either produce or permit Defendant's attorneys to inspect and copy or
photograph any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b)
(Effective February 1. 1998), the Right to Know Law NJSA 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). Including all relevant items specifically
listed on the DISCOVERY requests submitted. Defendant further requests that the
Court enter a DISCOVERY ORDER, provided the prosecutor neither sends notice of
specific objections in writing pursuant to R. 3:1‑4 nor moves timely for
a protective order pursuant to R. 3:13‑3(d).
7. If the State fails to provide discovery
as requested herein, Defendant may move either before or during trial pursuant
to R. 3:13‑3(f), R. 3:17‑4, and Evid.R. 807 (previously Evid.R 64), as
applicable, for an Order (a) permitting discovery or inspection of undisclosed
materials, (b) granting a continuance, (c) prohibiting introduction in evidence
of undisclosed material, (d) monetary sanctions, (e) dismissal of the charges,
and (f) such other order as the Court deems appropriate.
8.
Reciprocal Discovery. 9.1. Defendant may call certain fact witnesses to
testify, inter alia, that:
a) they have known Defendant, b) they saw
Defendant before or after police saw Defendant, c) Defendant was not under the
influence of alcohol and was to operate a motor vehicle, d) there was no
unexplained motor vehicle operation, and e) there was no articulable suspicion
that Defendant had violated the law. The witnesses will be named following/ after the state provides complete discovery as set
forth on Schedule A.
Defendant may call the following experts
to testify, inter alia, about each breath testing instrument ["BTI"]
or other analytical device ["AD"] used to test substances seized from
Defendant:
a) BTI/AD was not approved, b) analysis
method was not approved, c) BTI/AD used is scientifically unreliable, d)
analysis method was scientifically unreliable, e) BTI/AD components were not
properly inspected, f) BTI ampoules did not contain chemicals of proper quality
or quantity to give reliable readings, g) BTI/AD was not properly inspected, h)
BTI/AD operator was not properly qualified, i) test conditions, such as temperature
and atmospheric pressure, at time of analysis and inspection were not proper,
j) BTI/AD inspections were not properly periodic or blanked, k) BTI/AD was not
properly inspected for RFI, l) Defendant could not have given them m) BTI/AD
test records were not properly used, n) BTI ampoules were not properly gauged,
o) BTI/AD operation was not proper, and q) analytical tests were not done
within a reasonable time of Defendant's alleged motor vehicle operation.
Expert
Dr. Richard Saperstein, and/or Others
to be provided if and when retained following receipt of the state's expert.
9. Defendant may use demonstrative
and documentary evidence, which the State may inspect and copy or photograph
after paying reasonable expenses therefor: a) photographs c) video e) maps g)
pharmacy records h) films d) diagrams f) medical/hospital h) weather records
10. Speedy
Trial. Defendant demands a speedy trial pursuant to U.S. Const. Amend. VI
and N.J. Const. Art.1, para.10.
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Fighting a DWI DUI Driving Under Influence
Kenneth Vercammen's Law office represents
individuals charged with criminal and serious traffic violations throughout
New Jersey. Our office helps people with traffic/municipal court tickets
throughout New Jersey, including drivers charged with DUI/DWI and refusal.
Driving Under Influence and other Motor vehicle violations can cost you.
You will have to pay fines in court, or
receive points on your driver's license. A conviction will require you to pay
expensive surcharges to the N.J. MVC [Division of Motor Vehicles] and have
your license suspended. In New Jersey, the Judge does not have to rule that
you were drunk.
The prosecutor only needs to prove a driver
was under the influence of alcohol. Don't give up! The Law Office of Kenneth
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insurance companies increase rates or drop customers based on moving
violations.
In New Jersey Driving Under Influence (DUI)
and Driving While Intoxicated (DWI) are the same charge.
Due process requires the State disclose
evidence that is material to either guilt or punishment; indeed, the
prosecution has a constitutional duty to turn over exculpatory evidence that
would raise reasonable doubt about a defendant's guilt. See Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v.
Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of
materials in the State's possession could constitute exculpatory information
to which a defendant is entitled. Ford, supra at 52
A
demand for discovery has been served upon the prosecutor who has the
responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div.
1989). A defendant's right to discovery is not dependent upon an appraisal of
the beneficial value of the material sought to be discovered. State v.
Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a
prosecutor is expected to act reasonably when responding to a discovery
demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand
simply because the information or materials sought are not in the municipal
offices or within easy reach. Id. at 495. The municipal prosecutor cannot
refuse production on the ground that the requested information is not known
by the prosecutor personally to be in existence when its existence is either
common knowledge of the police department or when the knowledge could be
obtained by reasonable inquiry. Id. at 500.
The
municipal prosecutor must either object to what the prosecutor perceives to
be irrelevant discovery requests, or respond within 10 days of the receipt of
the defendant's request for discovery. Ford supra at 51; see Tull, supra at
500. The municipal prosecutor may be sanctioned for failing to provide
discovery. R.3:13_; see State v. Audette, 201 N.J. Super. 410 (App. Div.
1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who
believes the State has not supplied relevant materials reasonably required
for the defense may give notice to the State and the court prior to the date
set for commencement of trial where possible. Ford, supra at 52. Information
relating to prerequisite conditions establishing reliability is highly
relevant, Ford, supra at 52, and extremely material. Id. at 51. Thus,
information concerning conditions under which tests were held, the machine
operator's competence, the particular machine's state of repair and
identification, and documentation of the ampoule used for defendant's breath
tests are all relevant inquiries. Id.
Conclusion
If charged with Driving While Intoxicated,
immediately schedule an in-office appointment with a trial attorney. Don't
rely on a real estate attorney, public defender or a family member who simply
attended law school. When your driving privileges and ability to drive to
work is on the line, hire an experienced attorney.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500
(Fax) 732-572-0030
TRIAL AND LITIGATION EXPERIENCE In his
private practice, he has devoted a substantial portion of his professional
time to the preparation and trial of litigated matters. He appears in Courts
throughout New Jersey several times each week on many personal injury
matters, Criminal and Municipal/ traffic Court trials, Probate hearings, and
contested administrative law hearings.
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