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39:4-50 Defending the DWI Under Influence Case When Blood Drawn

Kenneth Vercammen's Law office represents individuals charged with DWI throughout New Jersey.

1. The State must prove probable cause to stop the motor vehicle;

A WARRANTLESS STOP IS IN VIOLATION OF A DRIVERS FEDERAL AND STATE CONSTITUTIONAL RIGHTS UNLESS THERE IS PROBABLE CAUSE FOR THE STOP.

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights.

Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). 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).

When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation. State v. Brown, 132 N.J. Super. ___ (App. Div. 1975). The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976). Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra.; State v. Welsh, 84 N.J. 348, (1980). In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973) Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings Weeks v United States 232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961).

State judges, no less than federal judges, have the high responsibility for protecting constitutional rights. While they are disturbed to allow defendants to go unprosecuted, their oath of office requires them to continue the guarantees afforded by the Constitution. As explained in Weeks, supra,: The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." Weeks v United States 232 US 383,393, 34 S. Ct. 341, 58 L. Ed 652 (1914).

Independently of federally mandated rights, each state has the power to impose higher standards on searches and seizures under dictate law than is required by the federal constitution, PruneYard Shopping Center v Robins 447 US 74, 81 (1980); State v Johnson 68 NJ 349, 353 (1975). In fact, New Jersey has chosen to afford to the accused in the search and seizure area greater rights than those deemed mandated by the United States Constitution. State v Alston, 88 NJ 21 (1981); State v Novembrino 220 NJ Super. 229, 240-243 (App. Div. 1985), affd 105 NJ 95 (1987)

Courts are to afford liberal, not grudging, enforcement of the Fourth Amendment. We do not have one law of search and seizure for narcotics and gambling cases and another for breaking and entering and theft. The meanness of the offender or the gravity of his crime does not decrease, but rather accentuates the duty of the courts to uphold and dispassionately apply the settled judicial criteria for lawful searches under the Amendment. For it is the hard case which sometimes proves the Achilles heal of constitutional rights, even as it tends to make bad law in other areas. State v Naturile 83 NJ Super. 563, 579 (App. Div. 1964).

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.

.i.2. The Prosecutor should be required to show ANY blood specimen was obtained in a medically accepted manner and submit a notarized statement;

NJSA 2A: 62A-10 provides details for hospital personnel who withdraw blood for police:

NJSA 2A: 62A-10. a. When acting in response to a request of a law enforcement officer, any physician, nurse or medical technician who withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and delivers it to a law enforcement officer, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised is that ordinarily required and exercised by others in the profession.

b. Any physician, nurse or medical technician who, for an accepted medical purpose, withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and subsequently delivers it to a law enforcement officer either voluntarily or upon court order, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised in obtaining the specimen is that ordinarily required and exercised by others in the profession.

d. For the purposes of this section, the term "law enforcement officer" includes a State, county or municipal police officer, a county prosecutor or his assistant, the Attorney General or his deputy or a State or county medical examiner.

NJSA 2A: 62A-11. Certificate

Any person taking a specimen 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.

.i.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. Super. 105, 216 A.2d 397 (App. Div. 1965), affd 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.

The most difficult aspect of the proof specified above is usually the identification of the evidence by the investigator who discovered it. This difficulty arises because of the frequent failure to properly "mark" the item. "Marking" means the placing by the investigator of at least his/her initials on the item. Unfortunately, sometimes items are "marked" by affixing an evidence tag to the item with a string. The investigator then puts his/her initials on the tag. When the string breaks and the tag is lost it may then be impossible for the investigator to identify the item as being the item that was discovered. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

Many excellent texts, one such text is the Handbook of Forensic Science, published by the Federal Bureau of Investigation provide information on the proper "marking" of various types of evidence, and they should be studied by investigators having responsibility for the collection of physical evidence. But the basic rule is as follows: The item should be "marked" by the investigator placing his/her initials, date, and the case number on the item itself. Metallic surfaces should be so "marked" with a machinists scribe. Liquids, soils and small fragments should be placed in a suitable container and sealed. The container should be "marked" by scribing the same information on the container, or by using some other permanent form of marking material on the container. Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

With respect to avoiding a claim of substitution of another item for that seized or a claim that the item has been tampered with, the problems of proof can be minimized by designating one investigator as the custodian of all the physical evidence in a given investigation. All investigators who recover physical evidence must turn that evidence over to the custodian, who is then responsible for the evidence from that time forward until trial. N.J. Practice, Criminal Procedure by Honorable Leonard Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034,

Where evidence must be submitted to a laboratory, the custodian delivers that evidence to the laboratory, and obtains a receipt from the laboratory. When the laboratory has completed its examination, it is the custodian who returns to the laboratory, receives the remaining specimen1 from the laboratory, and retains custody of the specimen and brings it to court for trial. By following this procedure, all the physical evidence can be introduced by calling the various investigators who recovered and marked each item of physical evidence, the custodian, and the laboratory specialist who examined the evidence. (The laboratory specialist testifies not only with respect to the laboratory examination, the specialists findings and opinion, but also as to the method of reception and storage at the laboratory prior to and after analysis.) Arnold, N.J. Practice, Criminal Procedure, Volume 32, Section 1034.

The identification of evidence and chain of evidence rules require that the proponent of the evidence show that the evidence has not been tampered with, and that there has not been any irregularity which altered its probative value. State v. Roszkowski, 129 N.J. Super. 315, 323 A.2d 531 (App. Div. 1974).

Often the Prosecutor cannot prove the chain of custody.

.i.4. Lab Evidence should not be routinely admitted where there is a Formal written objection to lab Certificate

Pursuant to N.J.S.A. 2C: 35-19, the defendant through attorney, may hereby in a Drug case, object to the entry of a proffered laboratory certificate as evidence at the time of trial. Grounds for objection may include: -The certificate is illegible and has not been certified in accordance with N.J.S.A. 2C: 35-19 (b). -the certificate fails to establish the type of analysis performed, the subscribers full training and experience, the nature and condition of the equipment used, or the full conclusions reached by the subscriber. -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 to the lab report. The defense may request to be provided with the operators manual for all instruments used to test the substances, pursuant to State v Ford 240 N.J. Super. 44 (App. Div. 1990).

.i.5 Blood test "reports" are hearsay, which may be inadmissible

EVIDENCE RULE 801. DEFINITIONS

For purposes of this article, the following definitions apply:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by him as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Business. A "business" includes every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies.

(e) Writing. A "writing" consists of letters, words, numbers, data compilations, pictures, drawings, photographs, symbols, sounds, or combinations thereof or their equivalent, set down or recorded by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or by any other means, and preserved in a perceptible form, and their duplicates as defined by Rule

[Source: The Internet- http://www.njlawnet.com/njevidence/] Documents and papers are a writing and thus hearsay. Under the evidence RULE 802. HEARSAY RULE : "Hearsay is not admissible except as provided by these rules or by other law. " Admission of hearsay which is not admissible under any exception or other law and its use as a foundation for a conviction violates a defendants Sixth Amendment right to confront witnesses against him. State v Long 255 NJ Super. 716, 726 (Law Div. 1993)

RULE 803. HEARSAY EXCEPTIONS NOT DEPENDENT ON DECLARANTS UNAVAILABILITY

The following written statements are not excluded by the hearsay rule: ....... (6) Records of regularly conducted activity. [Business Records] A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy. A good attorney should argue that there is no proof the writing was made in the ordinary course or business.

(8) Public records, reports, and findings. Subject to Rule 807, (A) a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the officials duty either to perform the act reported or to observe the act, condition, or event reported and to make the written statement, or (B) statistical findings of a public based upon a report of or an investigation of acts, conditions, or events, if it was within the scope of the officials duty to make such statistical findings, unless the sources of information or other circumstances indicate that such statistical findings are not trustworthy. [Source: The Internet- http://www.njlawnet.com/njevidence/]

An attorney should argue there is no proof that the official actually performed the act and that there is no proof the report that part of an official duty. If the public cannot readily obtain a copy of the results, is it really a public record?

RULE 808. EXPERT OPINION INCLUDED IN A HEARSAY STATEMENT ADMISSIBLE UNDER AN EXCEPTION

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

According to Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 808, (Gann) NJRE 808 codifies principles first set out in State v Matulewicz 101 NJ 27 (1985). As stated by the 1991 Supreme Court Committee Comment, NJRE 808 is intended in general terms all of the specific criteria discussed in Matulewicz. Before a determination can be made by the trial court, it must hear proofs as to the "Method and circumstances" involved in the preparation of the proffered report. In particular, "proof should be adduced to reflect: -the relative degrees of objectivity and subjectivit involved in the procedure, -the regularity with which these analyses are done, -the routine quality of each analysis, -the presence of any motive to single out a specific analysis for the purpose of rendering an untrustworthy report, and -the responsibility of each chemist to make accurate and reliable analyses.

Therefore, expert opinions contained in hearsay should not be admissible unless there is actual testimony that all conditions of NJRE 808 and State v Matulewicz are followed. In DWI breath cases, evidence must be admitted to show the breathalyzer has been inspected before and usually after the arrest and tests. In a DWI blood case for drug or alcohol influence, the State Police civilian chemists use a gas chromatagraph machine. Often there is no evidence that the as chromatagraph machine was inspected before or after the testing of the blood. All machines should be inspected on a periodic basis. For example, in Matulewicz, the expert witness was not produced. The results were too unreliable, too great a chance of a prejudicial finding are police labs reports which are offered without a right of a defendant to question the police chemist. NJ Administrative Office of the Court, Bench Book, P1-1-28

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 proponents 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.

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.

RULE 1002. REQUIREMENT OF ORIGINAL

To prove the content of a writing or photograph, the original writing or photograph is required except as otherwise provided in these rules or by statute. [Source: The Internet- http://www.njlawnet.com/njevidence/] _______________

.i.6 NJ EVIDENCE RULE 506-PATIENT AND PHYSICIAN PRIVILEGE MAY RENDER THE HOSPITAL BLOOD RESULTS CONFIDENTIAL

(a) N.J.S. 2A: 84A-22.1 provides:

As used in this act, (a) "patient" means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his physical or mental condition, consults a physician, or submits to an examination by a physician; (b) "physician" means a person authorized or reasonably believed by the patient to be authorized, to practice medicine in the State or jurisdiction in which the consultation or examination takes place; (c) "holder of the privilege" means the patient while alive and not under the guardianship of the guardian of the person of an incompetent patient, or the personal representative of a deceased patient; (d) "confidential communication between physician and patient" means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.

(b) N.J.S. 2A: 84A-22.2 provides: Except as otherwise provided in this act, a person, whether or not a party, has a privilege in a civil action or in a prosecution for a crime or violation of the disorderly persons law to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the judge finds that (a) the communication was a confidential communication between patient and physician, and (b) the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (c) the witness (i) is the holder of the privilege.

Background of the Privilege As set forth in Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) even prior to the enactment of the statutory privilege doctors were ethically restrained by the Oath of Hippocrates from violating the privacy of their patients by disclosing confidential information in the absence of legal compulsion. State v. Schreiber, 122 NJ 579, 586-588; Hague v. Williams, supra at 332, 335; Lazorick v. Brown, 195 N.J. Super. 444, 451 (App. Div. 1984). State v. Schreiber, supra declared the physician-patient privilege is not applicable where police bring the DWI suspect to the hospital. However, the defense counsel should argue the privilege should continue to apply to other aspects of the hospital and blood work. This ethical obligation is now embodied in Section 9 of the Principles of Medical Ethics of the American Medical Association. In this spirit law enforcement officers were cautioned in State v. Schreiber, supra, at 587, "not to cajole hesitant hospital doctors to violate confidences absent some preceding justification." Nevertheless, even without testimonial compulsion, it was held in Hague v. Williams, supra, that information concerning a patients medical condition could be disclosed to someone having a legitimate interest in the subject "where ... the physical condition of the patient is made an element of a claim." Id. at 336. See Kurdek v. West Orange Educ. Bd., 222 N.J. Super. 218, 224 (Law Div. 1987). The privilege is designed to enable a patient to secure medical services "without fear of betrayal and unwarranted embarrassing and detrimental disclosure in court of information which might deter him from revealing his symptoms to a doctor to the detriment of his health."

Stempler v. Speidell, 100 N.J. 368, 374 (1985); Kurdek v. West Orange Educ. Bd., supra, at 223-224. The New Jersey Supreme Court has recognized that when a law enforcement agency is investigating allegations of medical fraud, it may have to give notice to holders of the physician-patient privilege before it can subpoena records deemed necessary for their investigations. State v. Dolinger, 96 N.J. 236, 254 (1984). R. 4:14-7(c), the rule of practice governing the use of a subpoena for taking depositions, is directed toward preventing disclosure of privileged information by an expert such as a doctor without notice to other parties. Vasquez v. YMCA, 263 N.J. Super. 408, 411 (Law Div. 1992). Even after Schreiber, a driver suspected of having an elevated blood alcohol level does not necessarily lose all interest in the confidentiality of his medical records. Where a blood test was taken for diagnostic rather than investigative purposes and where investigation is of death by auto charges or any other crime or disorderly persons offense, the privilege would still apply under the restrictions established by State v. Dyal, 97 N.J. 229 (1984). Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) Also, the term "confidential communication" is defined as including information obtained by an examination of the patient. State In Interest of M.P.C., supra. Thus, the privilege is not confined solely to oral or written communications; if there was an expectation of confidentiality, "[a] physicians impressions secured by any of his senses may be privileged against disclosure." State v. Phillips, supra at 542, N. 4. Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann)

It should be noted that the privilege encompasses not only the claimants ability to refuse to disclose communications, but also the claimants ability to prevent a witness from making such disclosure. Thus, where the privilege is applicable, neither physicians nor third persons, within the ambit of N.J.R.E. 506(a) and N.J.S. 2A: 84A-22.1(d), may disclose confidential communications. Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) Any confidential statements made to a treating nurse, who was acting either as an agent under a doctors supervision or in her own professional capacity, should be protected from disclosure under N.J.S. 2A: 84A-22.2(c)(ii). See State v. Phillips, 213 N.J. Super. 534, 543, n. 5 (App. Div. 1986). Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann) But once a patient waives the privilege by bringing an action involving an aspect of his physical condition, it is a waiver covering all of his physicians knowledge concerning that condition. Stigliano v. Connaught Labs, Inc., supra, at 312. Thus, a plaintiffs treating doctors can testify for a defendant "concerning their physical examinations and diagnoses of plaintiff." Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann)

A Hospital blood test was admissible in DWI case of State v. Lutz 309 N.J. Super. 317 (App. Div. 1998) The Defendant in Lutz appealed from his convictions for driving under the influence of alcohol under N.J.S.A 39:4-50. Defendant contended that the results of his blood test are forensically unreliable and inadmissible. The Court affirmed the driving-under-the-influence-of-alcohol conviction and noted that although there may be differences in the methodology used for tests conducted by law enforcement for "forensic" purposes in comparison to those conducted by a hospital for "diagnostic" purposes, the procedure utilized to test defendants blood was sufficient to establish the reliability of defendants test results. The Court did not that the state produced witnesses who drew blood and witnesses for the chain of custody, rather than hearsay reports and the state.

Other ideas for defense objections- 7- Have the gas chromatagraph results reviewed by an independent expert 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 court case that ever recognized DRE as scientific. 9- If all discovery is not received, defense makes a motion to exclude the all test results under State v Holup 10- If the state is not prepared to proceed, defense objects to the adjournment and make a record for appeal.

INDEX TO LEGAL SECTIONS

1. The State must prove probable cause to stop the motor vehicle

2. The Prosecutor should be required to show ANY blood specimen was obtained in a medically accepted manner and submit a notarized statement

3 THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE

4. Lab Evidence should not be routinely admitted where there is a Formal written objection to lab Certificate 8

5 Blood test "reports" are hearsay, which may be inadmissible

6 NJ EVIDENCE RULE 506-PATIENT AND PHYSICIAN PRIVILEGE MAY RENDER THE HOSPITAL BLOOD RESULTS CONFIDENTIAL 12


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