DWI- Blood defense article

Defenses to DWI Blood Charge

By Kenneth Vercammen 1.

THE

STATE

MUST

PROVE

PROBABLE

CAUSE

TO

STOP

THE

MOTORIST AND TAKE BLOOD SAMPLES

Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution.

356 (App. Div. 1979).

State v. Williams , 163 N.J. Super. 352,

New Jersey Courts have held that Article 1,

Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment.

State v. Davis , 104 N.J. 490 (1986), State v. Kirk ,

202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search.

State v. Welsh , 84 N.J. 348, at 352. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. State v. Patino , 83 N.J. 1 (1980).

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, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (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, Clients may wish to take photos of stop/accident location. Clients may also wish to prepare a diagram of the stop/ accident location.

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The following recent cases are useful to if arguing a stop was improper: Odor of Alcohol Insufficient to Search Car State v. Jones, 326 NJ Super.

234 (App. Div. 1999).

Absent proofs that an open container of alcohol was in plain view, the odor of alcohol, combined with the admission of consumption of one bottle of beer by a motor vehicle operator, is insufficient to establish probable cause to search the vehicle for open containers where a trained police officer testifies that, based upon the circumstances and his experience, occupants often possess open containers of alcohol.

Auto Exception to Search Applicable only if Exigent Circumsta nces State v. Santia go 319 NJ Super. 632 (App. Div. 199 9 ) .

The "automobile exception" justifies a police search of an automobile without a warrant only if there are exigent circumstances that render it "impracticable" to first obtain a warrant. When police have possession of a parcel and have it turned over to defendant by a "controlled delivery," police cannot later search defendant's automobile and the parcel without a warrant, since it was not impracticable to have first obtained a search warrant, and whatever "exigency" may have existed was created by the police themselves.

Police cannot Search for Driver Identifica tion in Minor Motor Vehicle Stop State v. Lark 319 NJ Super. 618 (App. Div. 199 9 ) , affir m e d by NJ Supre m e Court. __ NJ __ (20 0 0 ) Under the federal and state constitutions, following a motor vehicle stop for a minor traffic violation, a police officer may not enter the vehicle to search for proof of the driver's identity even though the driver has failed to produce his driver's license and may have lied about his identity. The officers lacked probable cause to believe a crime had been committed. The dictum in State v. Boykins , 50 N.J. 73 (1967), does not authorize the search.

MV Stop Not Permit t e d on Communit y Careta king State v. Cryan 320 NJ Super. 325 (App. Div. 199 9 )

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A motor vehicle stop may not be based on community caretaking grounds where the officer stopped the defendant because, at 4 a.m., the defendant did not proceed for five seconds after a traffic light turned green.

2. In Crawford v. Washington , 541 U.S. 36 , 124 S. Ct. 1354 , 158 L. Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape- recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38- 40, 124 S. Ct. at 1356- 58, 158 L. Ed. 2d at 184- 86.

The

Court held that "a dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68- 69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford , the Court's express holding applied only to "testimonial" evidence: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].

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The 2007

Supreme

Court

Committee

summarized the importance of Crawford :

on the

Rules of Evidence

“ the United States Supreme

Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment.

Confrontation Clause provides that “[i]n

The

all criminal prosecutions, the

accused shall enjoy the right to be confronted with the witnesses against him.”

Before Crawford, the Supreme Court had held that hearsay did not

offend the Confrontation Clause if the out- of- court statement fell within a “firmly rooted hearsay exception ” or bore “particularized guarantees of trustworthiness.”

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538,

65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

541 U.S. at 59, 124 S. Ct. at 1369, 158 L.

Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance:

“Whatever else the term

[testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.” 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

In State v. Berezansky 386 NJ Super. 84 (App. Div. 200 6 ) there was a challenge to the admissibility of a DWI blood test result. The court held the Chemist’s Testimony is Require d in DWI Blood Case if an objection is filed by the defense.

Based on the Crawford decision, the Appellate Division in Berezansky determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

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The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence , comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed

the

test.

Here,

defendant

not

only

was

denied

his

constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood. The Court also noted by analogy, N.J.S.A. 2C:35- 19c

requires

the

prosecutor

to

provide

a defendant

with

all

documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.

4.

LAB EVIDENCE IN A DRUG CASE SHOULD NOT BE ADMITTED

WHERE

THERE

IS

A

FORMAL

WRITTEN

OBJECTION

TO

LAB

CERTIFICATE The Crawford decision and State v Berezansky bar blood lab repor ts as hearsay when proper objection is made 4. THE PROSECUTOR SHOULD BE REQUIRED TO SHOW ANY BLOOD SPECIMEN WAS OBTAINED IN A MEDICALLY ACCEPTED MANNER AND SUBMIT A NOTARIZED STATEMENT

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NJSA 2A: 62A-10 provides withdraw blood for police:

details

for

hospital

personnel

who

NJSA 2A: 62A-11. provides Any person taking a specimen [blood or bodily substance] pursuant to section 1 of this act shall, upon request, furnish to any law enforcement agency a certificate stating that the specimen was taken pursuant to section 1 of this act and in a medically acceptable manner. The certificate shall be signed under oath before a notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence of the statements contained therein.

A good defense attorney should argue that if a certificate is not signed in front of a notary, the blood results should be inadmissible.

The next major case to examine the Crawford case was State v.

Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions. Therefore, the Nurse Can Be Required to Testify in DWI Blood Case.

Another case where the Court Ruled that Defenda n t Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super.

352 (App. Div. 2007) Defendant

was convicted

of DWI following

a single- car rollover

accident, and the Law Division affirmed his conviction.

At the municipal

trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples. The authors of those hearsay documents did not appear at trial.

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The court reaffirmed the holdings in State v. Renshaw , 390 N.J. Super.

456 (App. Div. 2007) (regarding blood sample certificates) and in State v.

Berezansky , 385 N.J. Super. 84 (App. Div. 2006) (regarding State Police laboratory

reports)

concluding

that

the

hearsay

documents

are

"testimonial" under Crawford v. Washington , 541 U.S. 36 (2004), and that defendant was thus deprived of his right of confrontation under the Sixth Amendment.

The court also noted that unless our Supreme Court determines otherwise, the confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution does not appear to independently require such crossexamination Amendment.

beyond current

federal precedents interpreting

the Sixth

Additionally, the court recommends that legislative and/or

rule- making initiatives be pursued to avoid placing undue testimonial burdens on health care workers and law enforcement personnel who may create documents relevant to drunk driving prosecutions 3 THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE According to N.J. Practice , Criminal Procedure

by Honorable Leonard

Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034, a party seeking to introduce an item of physical evidence must prove that the item was that which was taken from a particular person or place which makes the item relevant as evidence in the trial. Such proof is provided by testimony identifying the item as having been taken from that person or place, and by evidence tracing custody of the item from the time it was taken until it is offered in evidence.

This latter evidence is necessary to

avoid any claim of substitution or tampering.

State v. Johnson, 90 N.J.

7

Super. 105, 216 A.2d 397 (App. Div. 1965), aff'd 46 N.J. 289, 216 A.2d 392 (1966).

The required proof includes: 1) testimony by an investigator identifying the item as that which the investigator discovered and took; 2) testimony by that investigator that there was no tampering with the item while it was in his/her custody; 3) testimony regarding delivery of the item to the second person who had custody of the item; 4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court.

Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include: testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial. Arnold, N.J. Practice , Criminal Procedure , Sec. 1034.

Often the Prosecutor cannot prove the chain of custody.

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BLOOD

TEST

"REPORTS"

ARE

HEARSAY,

WHICH

MAY

BE

INAD M ISSIBLE RULE 807. DISCRETION OF JUDGE TO EXCLUDE EVIDENCE UNDER CERTAIN EXCEPTIONS Except if offered by an accused in a criminal proceeding, when any statement is admissible by reason of Rules 803(c)(8), 803(c)(9), 803(c)(10), 803(c)(11), 803(c)(12), 803(c)(13), 803(c)(14), 803(c)(15), 803(c)(26) or 804(b), the judge may exclude it at the trial if it appears that the proponent's intention to offer the statement in evidence was not made known to the adverse party at such time as to provide that party with a fair opportunity to meet it.

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The defense attorney should object and request the judge to exclude the evidence at trial if the prosecutor did not provide a notice of intent to offer the evidence.

6

NJ EVIDENCE RULE 506- PATIENT AND PHYSICIAN PRIVILEGE MAY

RENDER

THE HOSPITAL

BLOOD

RESULTS

CONFIDENTIAL

IF NO

SUBPOENA OR COURT ORDER State of New Jersey v. Richard A. Ravotto (A- 45- 00) Decided July 26, 200 1 Applying the Fourth Amendment of the Constitution of the United States and Article I, paragraph 7 of the New Jersey Constitution, the force used by the police to extract defendant's blood was unreasonable under the totality of the circumstances.

1. The State's taking of blood from a suspect constitutes a search. Under the State and federal constitutions, a search must be reasonable, measured in objective terms by examining the totality of the circumstances. Police must obtain a warrant to conduct the search unless it falls under one of the recognized exceptions to the warrant requirement. With or without a warrant, police may not use unreasonable force to perform a search of a person. In assessing unreasonable force claims, courts consider whether the officers' actions are objectively reasonable in light of the facts and circumstances, without regard to their underlying intent or motivation.

Pursuant to Graham v. Connor , 490 U.S. 386 (1989), courts employ a balancing test that considers facts and circumstances such as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. (pp. 8-10).

2. In Schmerber v. California , 384 U.S. 757 (1966), the United States Supreme Court held that police, who had not used force, had been justified in requiring a defendant to submit to a blood test to determine intoxication because of the evanescent property of alcohol, the test's accuracy and its minimal intrusiveness. However, the Schmerber Court suggested that compulsory blood tests may not be permissible when a defendant objects on the grounds of fear, concern for health, or religious scruple and might prefer some other means of testing such as the Breathalyzer test. Opinions of the Superior Court of New Jersey, Appellate Division, have implied that, at some level of force or coercion, police conduct in pursuit of a blood sample is impermissible. (pp. 10- 17).

3. Pursuant to Graham , the Court employs a balancing test that considers

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all relevant facts and circumstances, including the defendant's reaction to law enforcement officials, the nature of the offense under investigation by police, and the existence of other proofs apart from blood evidence. Here, the Court balances defendant's manifest fear of needles, his violent reaction to the bodily intrusion engendered by the search, and his willingness to take a Breathalyzer test against the State's interest in prosecuting the defendant on a quasi- criminal charge in respect of which there existed considerable proofs apart from the blood evidence. In striking the balance, the Court finds that the forced extraction of blood in this instance offended the State and federal constitutions. (pp. 17- 22).

4. The Court rejects the State's argument that it should sustain the results of the blood test as the fruits of the search because the police ultimately would have obtained the test results from the hospital itself. The Court could not conclude from the record that the hospital staff would have taken a blood test absent the police request. Even if the hospital had required its own blood sample for diagnostic purposes, once the State assisted in the forced taking of those samples it could no longer acquire them under the independent source doctrine. (pp. 22- 26).

5. The Court declines to remand the matter to afford the State the opportunity to clarify or develop the record on the availability of the Breathalyzer and other issues. Such a remand would not result in an alteration of this disposition in light of the uncontested facts. (pp. 26- 30).

6. The police had probable cause to arrest the defendant an d, due to exigency, they were not required to obtain a search warrant authorizing the blood

sample.

defendant

Moreover,

to a hospital

the

police

and seeking

acted the

properly blood

test

in

transporting

in a medically

reasonable manner. The Court concludes, however, that the police used unreasonable force to acquire the blood sample from the defendant against whom they already had considerable evidence. On that basis, the fruits of the search cannot be sustained.

7- Gas chromatograph results not provided The State has failed to provide all results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986). The defense should request these documents and if they have not been provided to the defense object

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to the lab report.

The defense may try to be provided with the operator's

manual for all instruments used to test the substances, pursuant to State v Ford 240 N.J. Super. 44 (App. Div. 1990).

8-

Testimony

is objected

to

from

any

so-called

non

medical

drug

recognition expert or police office that the defendant was under the influence. There is no reported NJ court case that ever recognized DRE as scientific.

9- If all discovery and gas chromatography results are not provided, defense makes a motion to exclude the all test results under State v Holup 253 NJ Super. 320 (App. Div. 1992) 10- If the state is not prepared to proceed, defense objects to the adjournment and makes a record for appeal. State v. Farrell 320 NJ Super.

425 (App. Div. 1999) About the Author: Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. Kenneth Vercammen was selected one of only three attorneys as a Super Lawyer 2007- 2008 in NJ Monthly in the Criminal DWI. Kenneth Vercammen was the NJ State Bar Municipal Court Attorney of the Year and past president of the Middlesex County Municipal Prosecutor's Association. He is the past chair of the NJ State Bar Association Municipal Court Section. He is the Deputy chair of the ABA Criminal Law committee, GP Division.

KENNETH VERCAMMEN ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 NJ LAWS LEGAL WEBSITE: www.njlaws.com Criminal website www.BeNotGuilty.com He has lectured on traffic and criminal law for Bar Association, New Jersey Institute for Continuing Middlesex County College. He often lectures for the Association on personal injury, criminal /municipal

the New Jersey State Legal Education and New Jersey State Bar court law and drunk

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driving.

He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters.

Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

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