In a narrowly decided opinion of 5-4, our United States Supreme Court ordered that laboratory reports related to the testing of drug possession charges under N.J.S.A. 2C:35-10, N.J.S.A. 2C:35-5, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-7.1 (and all other drug charges) at a police laboratory are deemed testimonial evidence within the meaning of the confrontation clause of the Sixth Amendment.
Continue Reading...June 12, 2009---HOWELL — A DWI Task force from Monmouth County in conjunction with the NJ Division of Highway Traffic Safety will hold a roadside sobriety, DWI checkpoint from 11:00 p.m. through 3:00 a.m. Saturday on Route 9 north. The cops will pull vehicles from the northbound lanes into the Regal Plaza parking lot to determine driver’s sobriety.
There are very strict procedures for the police to follow in order for the roadblock to be considered legal for purposes of detaining motorists. If the police fail to follow the guidelines, the accused's DWI may be ripe for dismissal. If you have any questions, I can be reached through the contact information on my website
A critical element in every DWI case is proof of operation of the vehicle by the defendant. To lay people, accused of DWI, one would think that operation meant "actually being seen driving the car." Unfortunately, this isn't the case.There have been many reported cases where courts have found operation where the keys and sometimes the defendant weren't even in the car at the time the Police started their investigation into the DWI.
Continue Reading...May 15, 2009-WEST LONG BRANCH — A DWI task force from Monmouth County will be on the hunt for drunk drivers in West Long Branch this evening. The DWI checkpoint or drunk driving roadblock will be in existence from 11:00 p.m. tonight until 3:00 a.m. Saturday along Route 36. The task force and officers from the West Long Branch Police Department will direct vehicles from the westbound lanes into the Monmouth Park Corporate Center parking lot.
Pre Trial Intervention or P.T.I. is a program that allows certain defendants charged with crimes and/or felonies to be diverted into a special supervisory program ranging from one to three years in length. If they apply and are accepted by the criminal case manager and prosecutor, then they are admitted into the PTI program. Even if they are not accepted by the aforementioned parties, the defendant can still file an appeal with a Judge in order to try and be admitted into PTI. The great strength of PTI is that if a person successfully completes PTI, they will not have a criminal record. Six months after the completion of PTI, a person can file an application to have his or her record of arrest and entry into PTI expunged. Now more than ever, people are being permitted to apply to PTI.
Continue Reading...In a case (State v. Byrd) decided by the New Jersey Supreme Court earlier this month, the Supreme Court proposed a new change to the New Jersey Evidence Rules which would provide a new hearsay exception; commonly referred to as “forfeiture-by-wrongdoing.” Under the exception, an out-of-court statement made by a witness who fails to testify at trial will result in the statements being admitted at trial; if the witness’ failure to appear was due to the influence of the defendant. In proposing this change, the Court noted the problem of witness intimidation in cases involving the prosecution of gang members, etc.
The reason for the rule is to punish defendants who seek to gain an unjust advantage at trial by eliminating state's witnesses who could be damaging to the defense case. It is also put in place to deter defendants from harming victims and witnesses. The direct damage to defendants results when the Court permits the out-of-court statements of a witness/victim to be admitted at trial. Since a defense attorney cannot cross-examine a written or video statement (for obvious reasons), the defense loses the opportunity to cross-examine the statement maker as to their motives for making the statement, their ability to identify or hear the defendant at the time of the event, the lighting conditions, etc ,as to what they perceived or did not perceive. It will be interesting to see if and when this proposal is adopted and the hearings as well as the standard of proof needed to be overcome by the Prosecutor to establish wrongdoing by a defendant and the admissibility of evidence that otherwise would not have been permitted at trial.
Hi folks! It's been several months since we last posted some valuable information to our blog. We apologize. The last several months have been crazy at the firm with preparing for a bias crime/terroristic threat case; as well as, preparing, arguing and winning a reversal for a client in a municipal appeal which happily resulted in a $6500.00 fine reduction, the reversing of a six month county jail term and a two year term of probation. We look forward to providing you with lots of developments in the DWI field, drug possession and gun possession areas of the law.
One defense that should be explored by every attorney on behalf of their client is the "twenty minute defense." In the seminal DWI case, State v. Chun, dealing with the new Alcotest machine for breath testing, the Supreme Court stated that the person who administers the breath test in your DWI case must observe you for twenty minutes prior to administering the test. This is to ensure that you have not hiccuped or regurgitated residual alcohol into your mouth; which could skew the breath results.
While I personally believe that this twenty minute observation period is required by State v. Chun, trial court judges and appellate courts have interpreted the law differently and have inexplicably ignored the precedent of our highest Court. However, one recent appeal, titled State v. Nucifora, was decided in Camden County back on December 30, 2008. This is an unpublished letter opinion which stands for the premise that the Alcotest operator must personally observe the accused for twenty minutes before administering the test.
In order to be found guilty of a DWI, codified as N.J.S.A. 39:4-50(a), the Prosecutor has to establish certain proofs. The language of the DWI statute has been defined as "a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic hallucinogenic or habit-producing drugs." State v Tamburro, 68 N.J. 414, 420-421 (1975). The test for determining being under the influence of alcohol is not fitness or unfitness to drive a car, but rather whether the accused has drank alcohol or ingested drugs to the extent that his or her physical coordination or mental faculties are deleteriously defected. State v. Miller, 64 N.J. Super. 262 (App Div. 1960).
Having defended hundreds of DWI's, the signs that police usually reference to support a conviction for DWI based upon the officer's physical observations are: (1) the smell of alcohol on a person's breath; (2) blood-shot eyes; (3) slurred speech; (4) fumbling for documents; (5) staggering or stumbling; (6) poor driving; and (7) inability to perform field sobriety tests.
In the drug possession case of State v. Rahmann Reeds, one of the questions presented was whether expert testimony, presented by the prosecutor, regarding constructive possession of drugs located in a vehicle exceeded the scope of acceptable expert testimony in a drug
prosecution trial. The Supreme Court ruled that the defendant suffered undue prejudice from the expert testimony, wherein, the expert expressed that the defendant constructively possessed
the drugs discovered in the car he was driving. This ultimate-issue opinion by the expert usurped the jury's singular role in the determination of defendant's guilt and incurably tainted the remaining trial proofs, producing an unjust result in defendant's trial.
In this case, the Supreme Court opined correctly that the expert's opinion on the issue of constructive possession was nothing more than a legal conclusion which decided the ultimate issue for the jury.
By: Thomas H. Martin, Esq.
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