Defendants who have been convicted of third offense drunk driving violations ordered directly to jail from the court room.

Reproduced with permission from Muni-Mail.com.

AOC: 3rd offender DWI Defendants Must Go Right to Jail from Court

The Administrative Director of the Courts has issued a memorandum dated October 25th to municipal court judges that instructs them to send defendants who have been convicted of third offense drunk driving violations directly to jail from the court room. The memorandum also indicates that when a defendant seeks to enroll in an in-patient program in lieu of jail, that the relevant jail sentence, less any anticipated credits should be served first. Judges may also award discretionary credit for in-patient time accomplished prior to the imposition of the balance of the jail sentence.

There must be "compelling" reasons for deviating from the procedures set forth in the memorandum and they should be adequately spelled out on the record.

Medical personnel who extract blood samples at the request of the police will be required to personally appear at trial and be subject to cross examination in future DWI blood cases.

Reproduced with permission from Muni-Mail.com.

Person Who Drew Blood Sample Must Testify -
State v. Renshaw

One of the conditions of admissibility for the results of the analysis of a blood sample in a drunk driving case is that the sample was taken from the body of the defendant in a medically acceptable manner. Under N.J.S.A. 2A:62A-11, a person who draws a blood sample at the request of the police in a drunk driving case need not appear in court to personally testify at trial. Rather, that person may submit a certificate under oath, indicating that the sample was properly taken.

Today's decision by the Appellate Division in State v. Renshaw invalidates this statutory procedure based upon confrontation clause considerations required under Crawford v. Washington, 541 U.S. 36 (2004). The Appellate Division ruled that the declarations made in the certificate are "testimonial" within the meaning of Crawford, and as such, are not admissible at trial in the absence of consent to the certificate's use by the defendant. Based upon the foregoing, it appears that medical personnel who extract blood samples at the request of the police will be required to personally appear at trial and be subject to cross examination in future DWI blood cases.

Defense must put State on Notice in DWI Blood Cases

State v. Kent

Reproduced with permission from Muni-Mail.com.

Defense must put State on Notice in DWI Blood Cases
State v. Kent

This morning's Appellate Division decision in State v. Kent represents an attempt by the Court to implement the requirements of the Confrontation Clause as construed by the Supreme Court in Crawford v. Washington in a manner that recognizes the practical realities of DWI trials in municipal court. Kent is a DWI blood case. In its ruling today, the Appellate Division affirmed its previous rulings in State v. Berezanski and State v. Renshaw to the effect that a defendant has the right to personally confront the lab tech and the person who drew the blood sample at trial. However, the Court was also troubled by the practical impact that such required testimony will have on lab techs, nurses and other people involved in the system.

In noting the possibility of potential hardship, the Court announced that it disfavors the pro forma insistence that such witnesses appear at DWI trials to vouch for the contents of their reports if there are no bona fide issues about them. Accordingly, the Court ruled that defense attorneys who seek to require live testimony at trial of such witness must put the prosuector on notice by way of a demand for such testimony within the time requirements established in NJSA 2C:35-19. A failure by the defense to provide such notice will be deemed a waiver. The Court also implied that under Rule 1:4-8 and NJRE 611, the State may seek to avoid the appearance of these witnesses in blood cases by asserting that no legitimate factual issues exist.

Finally, the Court suggested that in order to avoid hardship to the witnesses, the municipal court may want to use remote video conferences or depositions taken on a de bene esse basis.

Judge King’s Supplemental Alcotest Report Released

The New Jersey Supreme Court recently released the latest supplemental report prepared by Special Master Michael Patrick King, P.J.A.D. (ret.) Judge King’s report followed 10 days of hearings and two days of oral argument. The hearings were conducted at the order of the New Jersey Supreme Court so as to permit the defendants in the landmark DWI case, State v. Chun, to challenge the reliability of the software that runs the Alcotest 7110 breath-testing instrument. Among Judge King’s findings and recommendations are the following:

1. The Alcotest 7110 is scientifically reliable as a breath testing instrument as to both hardware and software, subject to certain conditions;

2. Alcotest 7110 instruments in use should be subject to re-certification procedures every six months instead of yearly, as is now the practice;

3. As a result of certain mistakes in the software, evidence from a third breath test should not be utilized until the errors have been corrected;

4. An illegal operations trap in the software should be programmed to be activated;

5. If any of the categories on the Alcohol Influence Report are incomplete in any respect or missing, no portion of the report may be used in evidence. In practice this will mean that evidence of a blood alcohol level of .08% or greater would not be admissible at trial in those cases where the report is incomplete or missing data;

6. Foundational documents should be provided to the defense as discovery in all cases, regardless of whether the defendant is being represented by an attorney;

7. Written notice of any future software changes should be forwarded to Jeffrey E. Gold, Esq., counsel for amicus the New Jersey State Bar Association.

The Validity of the Alcotest

A Law Division decision banning plea bargaining in DWI cases on appeal was approved for publication.  In State v. Rastogi, the county prosecutor sought to enforce a negotiated plea disposition on a DWI case that has been appealed from municipal court. 

The prosecutor contended that, due to perceived weaknesses in the State’s DWI case on appeal, it would offer the defendant an opportunity to plead guilty to a different offense.  The prosecutor also maintained that the prescription against plea bargaining contained in the Guidelines to the Part VII (municipal court) Rules do not apply to county prosecutors and their activities in the Superior Court. 

The Law Division judge rejected the prosecutor’s argument and ruled that the policy considerations behind the plea bargaining ban in municipal court also apply to cases that are appealed to the Superior Court, Law Division for a trial de novo from municipal court.