Ken Vercammen's NJ Laws email newsletter July 11, 2007 E249

July 11, 2007

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In This Issue

1. Friends of Cynthia Vercammen are invited her 50th party Saturday July 28 7pm

2. Hearsay rule does not apply to Breathalyzer certification

3. Prior refusal to take Breathalyzer counts for enhanced penalty.

4. Alibi notice requirement may violate 5th Amendment.

5. Upcoming Charity races

6. New DWI testing machine faces Additional questions by the Court.
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1. Friends of Cynthia Vercammen are invited her 50th party

Saturday, July 28 - 7pm

D.J. , karaoke, 8 person Hot tub plus Deck and Tiki Bar. 2 Fooz ball tables, ping pong, arcade basketball.

Cynthia's 50th Birthday Party Join the Fun Bunch

LOCATION: South Brunswick NJ at 16 Ireland Brook Dr. near Farrington Lake, off Route 130 and Rt. 522)

Directions: Visit our website at www.njlaws.com or call and we will fax directions

Kenneth Vercammen, Esq. at (732) 572-0500 (Law office) or 732-940-8962 (evening)

Yes, We will be attending the party - fax back to Law Office Fax: (732) 572-0030

Name: _____________________________

E-mail: ____________________________

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2. Hearsay rule does not apply to breathalyzer certification. State v. Dorman 393 N.J. Super. 28 (App. Div. 2007)

In this DWI appeal, the court held that notwithstanding the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of operability offered by the State to meet its burden of proof under State v. Garthe, 1 N.J. 1 (1996), remains admissible as a business record under N.J.R.E. 803(c)(6).
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3. Prior refusal to take breathalyzer counts for enhanced penalty. State v. Breslin __ N.J. Super. __ A-6074-05T3 5/9/07

Defendant appealed from a judgment convicting him of refusal to submit a breath sample, N.J.S.A. 39:4-50.2, and the imposition of a two-year suspension of his driving privileges as a second offender, N.J.S.A. 39:4-50.4a. Defendant argued that he should not be considered a second offender under N.J.S.A. 39:4-50.4a because his prior conviction for refusal to submit a breath sample was obtained when the burden of proof required for such a conviction was the preponderance of the evidence standard.

As to defendant's contention that he should not be considered a second offender under N.J.S.A. 39:4-50.4a, the court held that there is no just reason to nullify a prior refusal conviction based upon a lesser burden of proof from being considered in determining a defendant's second-offender status under N.J.S.A. 39:4-50.4a after a second conviction for the same refusal offense based upon the criminal standard of proof.
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4. Alibi notice requirement may violate 5th Amendment. State v. Bradshaw 392 N.J. Super. 425 (App. Div. 2007)

The court held that application of the notice of alibi rule, R. 3:12-2, to bar a defendant's own testimony as to his whereabouts at the time of a crime, because of his failure to comply with the Rule, unconstitutionally infringes on defendant's state and federal right to testify, a right emanating from the due process and compulsory process guarantees. The court disagreed with contrary rulings in State v. Francis, 128 N.J. Super. 346 (App. Div. 1974) and State v. Gonzalez, 223 N.J. Super. 377 (App. Div.), certif. denied, 111 N.J. 589 (1988).
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5. Upcoming Charity races:

7/14/07 Belmar Five Mile Run 5 mile, 8:30am Belmar NJ 732-571-2162 free food at Bar A after race and reduced price drinks. Play Volleyball at Bar A.

7/22/2007 Jersey State Triathlon USAT Sanctioned Mercer County Park

7/28/07 Ocean Grove Biathlon 2M run, 300 yd swim Ocean Grove fast short event. spend the rest of the day at the beach.

7/24/07 RVRR Summer 5k & kids races in New Brunswick. NEW FOR 2007!Due to continued construction at Donaldson Park (our home for 23 years, RVRR moved the races across the river. The races will begin at the south-center of the Buccleuch

Park near the Senior Center (on Huntington Street), and will be 2 loops of 2.5K each. There will be only one major hill each lap, but the course is accurately measured, and we'll have the usual traffic control, water at the finish line, and awards presented within 30 minutes of the finish.NEW LOCATION!! Buccleuch Park, New Brunswick NJ (Easton Avenue across from St. Peters Hospital http://www.rvrr.org/

7/29/2007 The Staten Island Flat as a PANCAKE Sprint TRI & LUMPY PANCAKE Olympic Distance Tri 1/4 mile swim or 2 mile run, 12 mile bike, 5k run or .93 swim, 24 mile bike, 10k run, 10am Staten Island NY 732-841-2558

7/29/2007 Long Branch Sprint Triathlon Series-2 .5k swim, 9.5 mile bike, 3 mile run 6:45am Long Branch NJ 732-614-6028

8/4/07 Neptune City Day 5k, 8:00 Neptune City

8/5/07 Sea Girt 5K 8:30am Sea Girt

8/11/07 San Francisco Bay 5k

8/18/07 Bradley Beach 5k Bradley Beach

8/25/2007 Saturday Tri/Du the Wildwoods 1/4 mile swim, 11 mile bike, 3.1 mile run or 2 mile run, 11 mile bike, 3.1 mile run , 7:30am North Wildwood NJ 609-374-6495

More events at http://www.njlaws.com/calendar_of_community_events.htm
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6. New DWI testing machine faces additional questions by the Court.

For over the past several years, the courts have been faced with the question of whether the new DWI Alcotest 7110 breath testing machine is reliable. The NJ Supreme Court has directed further hearings into this new machine. The following is the State v CHUN TIMETABLE

IF NO TESTIMONIAL HEARINGS OF EXPERTS:

5/22/07 Amended Remand Orde

5/30/07 Source Codes due to respective software houses

(7 days from May 23)

8/28/07 Software Houses' reports due to Special Master

(90 days from receipt of source codes 5/31/07)

9/11/07 Special Master's report due to Supreme Court

(14 days from receipt of experts' reports)

IF TESTIMONIAL HEARINGS ARE HELD:

5/22/07 Amended Remand Order

5/30/07 Source Codes due to respective software houses

(7 days from May 23)

8/28/07 Software Houses' reports due to Special Master

(90 days from receipt of source codes 5/31/07)

10/12/07 Testimonial hearings to be completed

(45 days of receipt of experts' report)

10/26/07 Special Master's report due to Supreme Court

(14 days from conclusion of hearings)

After over two years of litigation in State v. Chun, approximately 21,000 pages of documents have been disclosed, a 41 day hearing has been held before Judge King spanning 8,500 pages of transcripts, Judge King issued a 268 page opinion, and the case has been briefed and argued before the Supreme Court. Ultimately, the Supreme Court ordered Dräger, the Alcotest manufacturer, to provide the software (source code) employed in the Alcotest, so that a defense selected software house can evaluate the source code to identify possible errors.

This was a hard fought battle for the defense attorneys. The defense attorneys have collectively expended in excess of six thousand uncompensated billing hours. They also have collectively spent in excess of $50,000 for experts, transcripts, brief printing, etc.

The Defense has retained a software expert, at its own expense, who tells them that based on industry averages and his vast experience, an analysis of the source code by a software house will likely produce numerous programming errors as well as the reasonable possibility that the readings may not be accurate for various programming shortcuts used in analyzing the breath samples.

Even Microsoft routinely sends out patches for its programs as it recognizes glitches in the programs. The Alcotest is produced by a small breath testing company that admitted during the hearing that it uses the same type of microprocessor chip that was used more than 15 years ago in video games.

The volunteer defense attorneys have requested that other defense Attorneys and anyone interested in the making sure this new machine is accurately tested to please contribute to the cost of the source code review and ask your affected clients to do the same. Such contributions will be used solely to fund the source code evaluation, and will not be used for any costs that have been already incurred. Municipal Court Attorneys and individuals interested in the "Innocent until proven Guilty" constitutional guarantee may be interested in making a small contribution. Please make any checks payable to the defense selected software house, "Base One Technologies", and please send them to:

SAMUEL LOUIS SACHS

Princeton Windsor Office Park

379 Princeton-Hightstown Road

P.O. Box 968

East Windsor, NJ 08520

(609) 448-2700

Fax: (609) 448-8883

If you would like to learn more about Base One, please visit their website at www.base-one.com.
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"Celebrating more than 21 years of providing excellent service to clients 1985-2007" Former Prosecutor

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Editor's Note and Disclaimer:

All materials Copyright 2007. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com

Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court