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 23, 2017
Pending before NJ Supreme Court A-41-16 State v. Shayna Zalcberg (078308) In this DWI matter, is defendant entitled to the suppression of blood evidence obtained without a warrant?
Pending before NJ Supreme Court A-41-16 State v. Shayna Zalcberg (078308) In this DWI matter, is defendant entitled to the suppression of blood evidence obtained without a warrant? Leave to appeal granted: 3/9/17 Posted: 3/10/17
NJ Advance Media for NJ.com previously wrote:http://www.nj.com/monmouth/index.ssf/2016/08/cops_waited_too_long_to_take_blood_sample_in_fatal.html
on August 29, 2016 at 5:52 PM, updated August 29, 2016 at 7:12 PM
FREEHOLD -- Prosecutors can't use the results of a blood test against a Rhode Island woman accused of killing one of her passengers while allegedly driving drunk in Freehold Township because police waited too long to get the sample, an appellate court panel said Monday.
The two-judge panel said they were throwing out the blood test evidence against Shayna Zalcberg because Freehold Township police needed a warrant to take blood from her after a fatal crash on Throckmorton Street on July 27, 2011.
Zalcberg, who was 28 at the time, was charged with vehicular homicide, two counts of third-degree vehicular assault, and one count of fourth-degree vehicular assault in the crash that killed Feliciano Colon, 36, of Freehold, one of her two passengers.
The court said that while some cases have circumstances allowing investigators to seek blood samples without a warrant, this was not one of them.
"On this record, the judge correctly concluded that the state failed to meet its burden to establish exigent circumstances to justify the warrantless blood draw," the ruling said.
Freehold Township police said that as a matter of routine after all cases of suspected drunk drivers, they didn't seek a warrant to take the blood sample because they didn't believe they needed one.
When Zalcberg's attorneys sought to have the blood test results dismissed, attorneys from the Monmouth County Prosecutor's Office argued a warrant wasn't necessary because, in the interest of time, investigators needed to have the test done before alcohol levels dissipated in her body.
But Superior Court Judge Francis Vernoia in Freehold ruled - and the appellate panel agreed - that that wasn't enough of an urgent situation to justify bypassing obtaining a warrant, according to the ruling. Vernoia and appellate judges Marie Simonelli and Greta Gooden Brown noted that Freehold Township police officers waited an hour after deciding there was probable cause to seek the blood test before they actually went to Jersey Shore University Medical Center in Neptune to get the sample. It was nearly four hours after the crash by the time they got the sample, the ruling said.
This is the second time the case went to the appellate division. In the first round, an appellate panel agreed with the prosecutor's office but the state Supreme Court sent the case back to Vernoia for a hearing on the urgency. Vernoia concluded - and this appellate panel agreed - that prosecutors didn't provide any testimony about urgent circumstances other than the dissipation of alcohol in Zalberg's blood.