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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, April 19, 2015

Hot Tips in DWI- A Review of the Major cases

Hot topics in DWI- A Review of the Major cases

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 219 NJ 227 (2014)

      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. 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 Appellate Division 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It is undisputed that at the time defendant committed this offense, she was aware her driver's license had been revoked by a presumptively valid second conviction for DWI.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.

3. If mandatory 180 days without parole, can’t get credit for inpatient State v. French 437 NJ Super. 333 (App. Div 2014)
A sentence of 90 days in jail followed by 90 days in an inpatient drug rehabilitation program does not satisfy the "fixed minimum sentence of not less than 180 days during which the defendant shall not be eligible for parole" mandated for the fourth-degree crime of operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated. N.J.S.A. 2C:40-26(b).

4 Failure to read refusal warnings not a defense to DWI State v Peralta 47 NJ Super. 570 (App.Div 2014)
In this appeal, defendant argued the police failure to read to him the standard statement referred to in N.J.S.A. 39:4 50.2(e) – which, in its current iteration, largely but not entirely advises of the consequences of refusing to provide a breath sample – requires reversal of his DWI conviction based solely on an Alcotest reading. The court held this alleged failure was not fatal to the DWI conviction because defendant did not refuse to provide a breath sample.

5 . DL suspension should not be stayed after conviction unless findings of fact.  State v Robertson 438 N.J.Super.47 (App. Div. 2014)
         In this appeal from a DWI conviction, the court rejects defendant's argument that the Alcotest results should have been excluded because he was denied discovery of certain repair records, which were created by the Alcotest's manufacturer, and certain downloaded data, which the State routinely erases. The court concludes the records were not discoverable under Rule 7:7-7, nor did they constitute Brady material.
         The court also addressed the unexplained decisions of both the municipal court and the Law Division to stay defendant's license suspension pending appeal. The court instructs trial courts that any stay of a license suspension after a DWI conviction should be supported by adequate findings of fact and conclusions of law, and should comply with standards governing the grant of a stay pending appeal set forth in Garden State Equality v. Doe, 216 N.J. 314, 320 (2013).

6 Court permits police to ignore guidelines requiring Alcohol influence report be given to DWI suspects
State v Sorensen  __ NJ Super. __ (App. Div. 2015) A-3797-13T4
      After the Law Division suppressed defendant's blood alcohol content (BAC) results, it sentenced her on her guilty plea to driving under the influence. Nonetheless, the State's appeal of the suppression was not barred by double jeopardy because defendant had entered a conditional plea to, and been sentenced for, the per se violation in Municipal Court.
The Law Division suppressed the BAC results because the Alcotest operator did not give a copy of the Alcohol Influence Report (AIR) to the arrestee in the police station. Although State v. Chun, 194 N.J. 54, 82 (2008), said the operator "must" do so, that comment about recommended Alcotest procedure did not override the statutory standard only requiring the police to give a copy of the breath test results upon request. N.J.S.A. 39:4-50.2(b). In any event, the timing of copy delivery does not affect the validity of the test results. Moreover, police must advise arrestees of their ability to request a copy and to get an independent test. Therefore, suppression is not warranted in the absence of prejudice. Furthermore, a suppression remedy should not be imposed retroactively.
Judge Sabatino concurs in the result. Given the time-sensitive dissipation of alcohol in the bloodstream, he believes Chun sensibly requires the operator to provide a copy of the AIR contemporaneously, consistent with the policies of the Attorney General and the State Police, and that the statute does not foreclose affording such added procedural protection to tested drivers. He agrees that suppression in this case and retroactive relief are not warranted.

Ken Vercammen cases to discuss
7. Driver is not subject to criminal driving while suspended if DWI suspension period expired prior to driving
State v Perry  __ NJ Super. ___ (App. Div. 2015)
Docket  A-1767 -13T2
N.J.S.A. 2C:40-26(a) and (b) make driving while suspended under specified circumstances a fourth-degree crime, punishable by a mandatory minimum jail term of 180 days, where the underlying suspension arose from driving while intoxicated (DWI), N.J.S.A. 39:4-50, and/or refusal to submit to chemical testing, N.J.S.A. 39:4-50.4(a). The court concluded in these appeals that prosecutions under the statute can be brought only if the act of driving while suspended occurs during the court-imposed term of suspension.
     Note- Ken V successfully represented four of the winning parties before the Law Division. The Appellate Division affirmed the well-reasoned opinion of Hon. Douglas Wolfson JSC.
    Consolidated with 5 other cases.    

8. 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.

9. 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.

10. 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.

11. Ken 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.
The Appellate Division held Defendant Entitled to Adjournment to Select Own Counsel. State v. Kates 426 NJ Super. 32 (App. Div. 2012)
      The Appellate Division concluded the trial court mistakenly exercised its discretion in denying defendant a continuance to enable him to retain counsel of his choice, after he learned on the eve of trial that the assistant deputy public defender who had been representing him was about to deployed for active military service.  Although the right to counsel of choice is not absolute and may be balanced against the court's interest in managing its calendar, the trial court failed to weigh the appropriate factors governing the discretionary decision whether to grant the requested continuance.  The availability of competent counsel not of defendant's choice was an insufficient basis for denying the continuance.  As deprivation of counsel of choice is a structural error not subject to harmless error analysis, reversal of defendant's conviction and a new trial is mandated.

Jeff Gold cases to discuss
12 No suppression of blood result from 2008 based on 2013 new case
State v Adkins 433 NJ Super. 479 (App. Div. 2013) cert granted
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.

13 No warrant for DWI blood needed for tickets issued before 2013. 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.

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 DWI offenses separated by more than ten years are eligible for “step-down” provision. State v. Revie 220 NJ 126 (2014) A-31-13
The N.J.S.A. 39:4-50(a)(3) “step-down” provision can benefit a DWI offender more than once, provided that the defendant’s most recent and current DWI offenses are separated by more than ten years.  In this case, defendant should be sentenced as a second DWI offender with respect to any term of incarceration imposed, and as a third DWI offender with respect to the applicable administrative penalties.

16 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.

17  DWI statute and Alcotest not unconstitutional. State v. Campbell 436 N.J. Super. 264 (App. Div. 2014)
Defendant's prosecution was based upon an Alcotest reading of his blood alcohol content ("BAC") above the per se level of .08 prohibited by N.J.S.A. 39:4-50(a). He argues that case law authorizing the admission of Alcotest BAC results when the prerequisites for such admissibility are shown by "clear-and-convincing" proof, coupled with the statute's conclusively incriminating treatment of a BAC at or above .08, improperly combine to relieve the State of its constitutional burden of proving a driver's guilt by the more rigorous standard of proof "beyond a reasonable doubt."
The Court rejects defendant's claim of unconstitutionality. The argument fails to distinguish the State's threshold burden of establishing the Alcotest's evidential admissibility from the State's ultimate burden at trail of establishing defendant's guilt of a per se offense beyond a reasonable doubt. Even if a pretrial motion to suppress the BAC results has been denied, a defendant can still present competing evidence or arguments at trial to persuade the court that the testing procedures were flawed and that his guilt has not been proven by the more stringent reasonable doubt standard.

18 Are Municipal court judges permitted to cross-examine defendants in lieu of prosecutor?
   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.