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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".

Sunday, February 22, 2015

Top NJ Cases in DWI drunk driving

Top NJ Cases in DWI drunk driving


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.
213 N.J. 63 (2013) 

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.


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.

         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. ……