Top NJ Cases in DWI drunk driving
BY KENNETH A. VERCAMMEN
1. Can Judge rely on suppression
motion testimony without defendant’s consent? No
Court cannot consider Sup Mt
testimony unless agreed by defendant
State v Gibson __ NJ __
A-11-13; 072257)
Due to the fundamental differences
between a pre-trial motion to suppress and a trial on the merits, the best
practice is to conduct two separate proceedings. However, the motion record may
be incorporated into the trial record if both parties’ consent and counsel are
given wide latitude in cross-examination. Where the evidence from a pre-trial
hearing is improperly admitted at the trial on the merits, the correct remedy
is remand for a new trial
2 Is Schmerber still good law
that permits police to take blood if they believe DWI? No
US Supreme Court
requires warrant before taking of blood in DWI
Missouri v McNeely 133 S. Ct. 1552
(2013)
Respondent McNeely was stopped by a Missouri police officer for speeding
and crossing the centerline. After declining to take a breath test to measure
his blood alcohol concentration (BAC), he was arrested and taken to a nearby
hospital for blood testing. The officer never attempted to secure a search
warrant. McNeely refused to consent to the blood test, but the officer directed
a lab technician to take a sample. McNeely’s BAC tested well above the legal
limit, and he was charged with driving while intoxicated (DWI). He moved to
suppress the blood test result, arguing that taking his blood without a warrant
violated his Fourth Amendment rights. The trial court agreed, concluding that
the exigency exception to the warrant requirement did not apply because, apart
from the fact that McNeely’s blood alcohol was dissipating, no circumstances
suggested that the officer faced an emergency. The State Supreme Court
affirmed, relying on Schmerber v. California, 384 U. S. 757, in
which this Court upheld a DWI suspect’s warrantless blood test where the
officer “might reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant, under the
circumstances, threatened ‘the destruction of evidence,’ ” id., at 770.
This case, the state court found, 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.
3
Sixteen-month delay for DWI inhibited defendant’s speedy trial
right. State v Cahill 213 N.J. 253 (2013)
Applying the four-factor
analysis set forth by the United States Supreme Court in Barker v. Wingo,
the sixteen-month delay between the remand of the driving-while-intoxicated
charge to the municipal court and the notice of trial deprived defendant
Michael Cahill of his right to a speedy trial and the charge must be dismissed.
4 When must a judge recuse? Where impartiality questioned
Judge can’t hear police cases in town where his son is a cop.
In the Matter of ADVISORY LETTER NO. 7–11 OF the SUPREME COURT
ADVISORY COMMITTEE ON EXTRAJUDICIAL ACTIVITIES,
5
Do police and investigators need
to turn over initial investigation notes?
yes
Investigator
violated rules by destroying notes. State v. Dabas
215 NJ 114 (2013)
The
prosecutor’s office violated its post-indictment discovery obligations under
Rule 3:13-3, when its investigator destroyed his notes of a two-hour
pre-interview of defendant. The trial court abused its discretion in denying
defendant’s request for a charge that would have allowed the jury to draw an
adverse inference from the destruction of the interview notes more than a year
after the return of the indictment
6 Can
court permit limited mid-trial discovery?
Sometimes
AIR
permitted mid trial where defense did not claim prejudice
State
v Wolfe
431 NJ Super. 356 (App. Div. 2013)
The Court affirmed a drunk driving
conviction where defendant unsuccessfully sought to block admission of his
Alcohol Influence Report (AIR), a report generated by an Alcotest breathalyzer
device, because the State did not provide complete discovery after it was
requested. During trial, the municipal court required defense counsel to
specify the grounds for his objection to the admissibility of the AIR, and the
State was then allowed to cure the deficiencies in the foundational evidence
pointed out by defense counsel. The Court interpreted Rule 7:7-7(h) to allow
this mid-trial discovery where defendant alleges no prejudice and the State did
not intend to mislead the defense.
7 Can
Prosecution block defense from talking to witness? no
Prosecution
should not interfere with defense ability to interview witnesses
State v Blazas 432 NJ Super. 326 (App. Div. 2013)
The "meaningful opportunity to
present a complete defense" guaranteed by the Federal and New Jersey
Constitutions is denied when the prosecution substantially interferes with a
defendant's ability to secure witness testimony. In this case, the government
conduct alleged did not result in the denial of witness testimony but, rather,
in the denial of access to the witness for interview by the defense. Because
such allegations, if true, would be proof of substantial interference with
defendant's constitutionally guaranteed right of access to witnesses, the court
held that the trial judge erred in failing to conduct an evidentiary hearing.
8
Is it a defense for refusal charge that warnings did not set forth complete
penalties? No
Police
Officer reading inaccurate refusal
warning is not a defense to refusal charge
State v. O’Driscoll 215 NJ 461
(2013)
The police officer’s errors in the
reading of the standard statement informing defendant of the consequences of
refusing to provide a breath sample were not material in light of the statutory
purpose to inform motorists and impel compliance. The officer’s misstatements could not have
reasonably affected defendant’s choice to refuse to provide a breath sample,
and do not require reversal of defendant’s conviction for refusal.
9
10 No suppression of blood result from
2008 based on 2013 new case
State v Adkins 433 NJ Super. 479 (App. Div. 2013)
Addressing the impact of Missouri v.
McNeely, 133 S. Ct. 1552, (2013), on pending cases involving warrantless blood
tests, the court reversed a trial court order suppressing blood evidence in a
DWI and assault-by-auto case. Consistent with long-standing rulings of the New
Jersey Supreme Court, the police obtained the blood sample from defendant
without a search warrant. Thereafter, the United States Supreme Court
unexpectedly changed the legal landscape by issuing a ruling that construed the
Fourth Amendment more broadly than our Court.
On these facts, under Davis
v. United States, 131 S. Ct. 2419,
suppression would not be the appropriate remedy under federal
constitutional law, because the New Jersey police were acting lawfully under
established New Jersey precedent at the time of the search. Further, had our
own Supreme Court issued the McNeely ruling as a construction of the New Jersey
Constitution, the ruling would not have been applied retroactively. Under these
unusual and very limited circumstances, the court held that suppression of the
evidence in this case was not required.
11. Is failure by State Police to create and maintain a
centralized statewide database violation of the State v Chun Order. No-
Ok for State police to ignore Supreme Court opinion State v Chun 2 215 NJ 489
(2013)
Court
having considered the papers filed in support of and in opposition to each of
the motions, and the Court having entertained the oral arguments of the parties
and on behalf of amicus concerning the motions,
And the Court having concluded that the
centralized statewide database is fully in compliance with this Court’s Order
of March 17, 2008, in all respects,
And the Court having further concluded
that defendants have failed to demonstrate that the State has “willfully
refused” to comply with this Court’s March 17, 2008, Order, see Pasqua v.
Council, 186 N.J. 127, 141 n.2 (2006), and that the State has demonstrated that
in spite of its best efforts to do so, it does not have the ability to comply
with Paragraph 2 of the Order, see Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J.366, 392 (1995), because of the unanticipated but
unavoidable adverse impact of compliance that the implementation of Firmware
version 3.13 would have upon the continued viability of the existing database,
And the Court having further concluded
that the Alcotest 7110, utilizing Firmware version 3.11, remains scientifically
reliable, and generates results that are admissible to prove a per se violation
of the statutory prohibitions on driving while under the influence of alcohol,
when those results are utilized in strict compliance with Paragraphs 1, 3, 4,
5, 6 and the associated worksheets attached to this Court’s March 17, 2008,
Order,
And the Court having further concluded
that although Paragraph 1(A)(3) of this Court’s March 17, 2008, Order directed
that certain AIR results be inadmissible in prosecutions of women over the age
of sixty for violations of the refusal statute, see N.J.S.A. 39:4-50.4a, a
further remedy is now necessary to protect the equal protection rights of women
falling into that category,
12 Defendant can be entitled to Adjournment to
Select Own Counsel. State v Kates 216 NJ 393 (2014)
The judgment of the Appellate Division was
affirmed substantially for the reasons expressed in Judge Ostrer’s opinion
below. Deprivation of a defendant’s right to counsel of choice is found where,
as here, a trial court denies an adjournment without properly considering the
relevant factors or abuses its discretion in doing so.
13 Are Municipal court judges permitted to deprive
defendants of right to counsel and prosecute defendants?
In the
Matter of Louis DiLeo
216 NJ
449 (2014)
The
Judge should have adjourned trial for defendants to have an attorney
The Judge should not have acted as prosecutor and
asked questions of defendants.
14 Suppression granted where stop based on driver high beams on. State
v. Witt 435 NJ Super. 608 (App. Div. 2014)
The court granted leave to
appeal an order granting defendant's motion to suppress evidence seized during
a warrantless search of his vehicle. The court affirmed not only because it is
bound by State v. Pena-Flores, 198 N.J. 6
(2009), and its many antecedents, and not only because no exigencies for the
search were revealed during the suppression hearing, but also because there was
no legitimate basis for the motor vehicle stop that preceded the search. In
this last regard, the record demonstrated that the police officer stopped
defendant's vehicle because defendant did not dim his high beams as he drove by
the officer's parked patrol vehicle. Because the patrol vehicle was not an
"oncoming vehicle," and because there were no other "oncoming
vehicles" on the road at the time, the police officer did not have
objectively reasonable grounds to believe defendant had violated the high-beam
statute, N.J.S.A. 39:3-60, in making the vehicle stop.
15 Prior DWI counts for enhanced refusal. State v. Frye 217 NJ. 566 (2014)
The court reaffirms it’s holding in In re Bergwall, 85 N.J.
382 (1981). A prior DWI conviction may
enhance the sentence for a subsequent refusal conviction under the refusal
statute. N.J.S.A. 39:4-50.4a.
16 Driving
While Suspended Conviction Upheld Although DWI Conviction Vacated. State v. Sylvester 437
N.J. Super. 1 (App. Div. 2014)
N.J.S.A. 2C:40-26b makes it a
fourth degree offense to drive while one's license is suspended or revoked for
a second or subsequent conviction for driving a car while under the influence
of alcohol (DWI). In a bench trial before the Law Division on this charge,
defendant argued that her second DWI conviction had been voided ab initio by
the municipal court when it granted her PCR petition two months after she was
indicted for one count of violating N.J.S.A. 2C:40-26b. Thus, defendant argues
the State cannot rely on this vacated second DWI conviction to meet its burden
of proof under N.J.S.A. 2C:40-26b. The trial court rejected this argument. The
court affirmed.
It is undisputed that at the
time defendant committed this offense, she was aware her driver's license had
been revoked by a presumptively valid second conviction for DWI. The court
relied on State v. Gandhi, 201 N.J. 161, 190 (2010) to hold that a second DWI
conviction vacated through PCR granted by a court after a defendant engages in
conduct prohibited in N.J.S.A. 2C:40-26b, cannot be applied retroactively to
bar a conviction under this statute.
17.
Warrantless DWI blood taking before 2013. allowed where multiple
vehicle accident and hospitalization State v
Jones 437 NJ Super. 68 (App. Div. 2014) The Court granted the State
leave to appeal from an order that suppressed the results of a blood sample
taken without a warrant prior to Missouri v. McNeely 133 S. Ct. 1552 (2013), and now reverses.
Defendant caused a multiple vehicle accident, resulting in personal injuries
that required hospitalization. Emergency personnel took approximately thirty
minutes to extricate the unconscious defendant from her vehicle and the police
investigation took several hours.
It is undisputed that the
blood sample was obtained consistent with New Jersey law that existed at the
time. The Court need not decide whether McNeely should be applied retroactively
because the facts support a warrantless blood sample even if McNeely applies.
Although McNeely rejected a per se exigency rule, it adhered to the totality of
the circumstances analysis set forth in Schmerber v. California, 86 S. Ct. 1826, 1836 (1966), stating the
metabolization of alcohol was an "essential" factor in the analysis.
Further, the Court noted that the facts in Schmerber which, like here, included
an accident, injuries requiring hospitalization, and an hours-long police
investigation, were sufficient to justify a warrantless blood sample for use in
an expert’s comparison of DNA samples, a defendant’s federal and state
confrontation rights are satisfied so long as the testifying witness is
qualified to perform, and did in fact perform, an independent review of testing
data and processes, rather than merely read from or vouch for another analyst’s
report or conclusions.
18. Supervising chemist can testify in vehicular homicide if they
independently verified correctness of blood test results State
v. Michaels 219 NJ 1 (2014) Defendant’s confrontation
rights were not violated by the admission of Dr. Barbieri’s report or his
testimony regarding the blood tests and his conclusions drawn therefrom. Dr.
Barbieri was knowledgeable about the testing process, independently verified
the correctness of the machine-tested processes and results, and formed an
independent conclusion about the results. Defendant’s opportunity to
cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic
evidence presented against her.
19 Supervising chemist can testify in rape
case if they independently verified correctness of DNA results State
v. Roach 219 NJ 58
(2014)
Defendant’s confrontation rights
were not violated by the testimony of the analyst who matched his DNA profile
to the profile left at the scene by the perpetrator. Defendant had the
opportunity to confront the analyst who personally reviewed and verified the
correctness of the two DNA profiles that resulted in a highly significant
statistical match inculpating him as the perpetrator. In the context of testing
for the purpose of establishing DNA profiles.
20 Defendant
has burden to timely to object to testimony by pathologist who did not perform
the victim’s autopsy State v. Williams 219 NJ 89
(2014)
Defendant’s failure to object to the admission of the testimony on
confrontation grounds and his decision to cross-examine the medical examiner
constitute a waiver of his right of confrontation.
21 Rule 7:7-7 (i) Discovery Fees
limited to OPRA rates
Rule 7:7-7 (h) Motions for Discovery. No motion for discovery shall be made
unless the prosecutor and defendant have conferred and attempted to reach
agreement on any discovery issues, including any issues pertaining to discovery
provided through the use of CD, DVD, e-mail, internet or other electronic
means.
(1) Standard Fees. The fee assessed for discovery embodied in the form of printed matter
shall be $0.05 per letter size page or smaller, and $0.07 per legal size page
or larger. From time to time, as necessary, these rates may be revised pursuant
to a schedule promulgated by the Administrative Director of the Courts. If the
prosecutor can demonstrate that the actual costs for copying discovery exceed
the foregoing rates, the prosecutor shall be permitted to charge a reasonable
amount equal to the actual costs of copying. The actual copying costs shall be
the costs of materials and supplies used to copy the discovery, but shall not
include the costs of labor or other overhead expenses associated with making
the copies, except as provided for in paragraph (i)(2) of this rule. Electronic
records and non-printed materials shall be provided free of charge, but the
prosecutor may charge for the actual costs of any needed supplies such as
computer discs.
Rule 7:7-7 g …….. If any
discoverable materials known to a party have not been supplied, the party
obligated with providing that discovery shall also provide the opposing party
with a listing of the materials that are missing and explain why they have not
been supplied. ……
