10
Tips on Defending the DWI blood & urine case in
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 4th degree black belt.
KENNETH VERCAMMEN
ATTORNEY
AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
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