2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Friday, February 20, 2015

Defense Motions to be filed for Drug Charges

Pretrial Motions
1)  Suppress Evidence
2) Miranda/Privilege
3)  Exclude Lab Tests and Demand for notes and Operator Manuals
4)  Discovery
5)  Reciprocal Discovery
6) Defense experts:
7)  Speedy trial
8) Notice of Objection to Lab Reports 2c:35-19
9) Punishment
10) Vagueness


      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)  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.

2)  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 (1966), and its progeny.

3) Exclude Lab Tests and Demand for notes and Operator Manuals

  If police used a drug testing instrument in this case, Defendant will move to exclude evidence(  of drug test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of drug testing instruments as required by statute, and (b) without such properly prescribed methods and procedures, the State cannot lay the foun¬dation needed for admission of drug test results into evidence at trial. 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 illegible, and has not been certified in accordance with N.J.S.A. 2C: 35-19 (b).  The certificate fails to establish the type of 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 gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986).   The defense requests these results and notes.
 The defense requests to be provided with 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) Discovery. Defendant requests that the State provide paper copy of any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b) . 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). . 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.