Arrested for dwi DUI? Pretrial Motions 1. Jury Trial 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 11. Notice of Objection

Arrested for DUI?

Pretrial Motions                

1. Jury Trial

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

11. Notice of Objection

Post Disposition motions

     12. Enhanced Penalties

     13. Protective Order

     14. Stay

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. Jury Trial. Defendant will move for trial by jury. Blanton v. North Las Vegas, 109 S.Ct. 1289, l03 L.Ed.2d 550 (1989).

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. Test Ampoule. If police used a breath testing instrument in this case, Defendant will move to either dismiss the N.J.S. 39:4‑50 complaint or exclude evidence of breath test results because the State destroyed material relevant evidence‑‑i.e., test ampoules used in Defendant's breath tests‑‑contrary to U.S. Const. Amends. V, VI, IX, and XIV, and N.J. Const. Art.l, paras.1, 10, and 21.

7. 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

8. Discovery. 8.1. 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).

8.2. 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.

9. 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.

9.2. 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.

11. 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.

POST‑DISPOSITION MOTIONS

12. Enhanced Penalties. If defendant is a subsequent offender under either N.J.S. 39:3‑40, 4‑50, 4‑50.2, 4‑96, 6B‑2, or other statute, Defendant may move to exclude use of prior convictions to enhance penalties pursuant to these statutes on grounds to be determined after further investigation.

13. Protective Order. If Defendant pleads guilty to any charge captioned above, Defendant will move that such plea shall not be evidential in any civil proceeding.

                         

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 Vercammen offers information and can provide experienced attorney representation for Driving Under Influence and other Motor vehicle violations. When your driver's license is in jeopardy, or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please schedule an appointment if you need experienced legal representation in a traffic/municipal court matter. Our website njlaws.com provides information on traffic offenses of which we can be retained to represent people. Our website also provides details on jail terms for Driving Under Influence and car insurance eligibility points. Car 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.