Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee,GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or
visit Website www.njlaws.com


Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
www.njlaws.com

Saturday, August 2, 2014

New ABA Book: “Smart Marketing For the Small Firm Lawyer” from the American Bar Association.

New ABA Book: “Smart Marketing For the Small Firm Lawyer” from the American Bar Association.
    Author:  Kenneth A Vercammen
Sponsor(s):  Solo, Small Firm and General Practice Division
Publisher(s):  ABA Book Publishing 

 Marketing is essential to the growth of any enterprise. There are many low-cost and no-cost opportunities that exist. This book explores today’s marketing landscape and outlines its many facets for you in concise and easy to understand terms. 

Additional Information
Table of Contents: TOC Smart Marketing
About the Author: Kenneth Vercammen
•Preface: Intro-Smart Marketing 
•List Price: $59.95 
•ABA Price: $45.95 
ISBN: 978-1-62722-484-0
Product Code: 5150468 2014, 156 Pages, 7 x 10


Item Details:
Any business owner will tell you that marketing is vital to the success and growth of a venture, and a law practice is no exception! This book thoroughly explores today’s marketing landscape and outlines its many facets for you in concise and easy to understand terms. This book will cover: Any business owner will tell you that marketing is vital to the success and growth of a venture, and a law practice is no exception! This book thoroughly explores today’s marketing landscape and outlines its many facets for you in concise and easy to understand terms. This book will cover: *Creating a blog for free *How to leverage a wide array of social networking sites (like Facebook, Martindale Hubble, Yelp, etc.) *Best practices for marketing within the law office *Low-cost and no-cost marketing activities *Tips to increase your efficiency and reach *And more! Included with this book is a helpful CD-ROM with digital copies of all the exhibits used in the book and the various websites that are referenced. Learn how to make the most the marketing opportunities that exist with Smart Marketing for the Small Firm Lawyer.

Praise for Smart Marketing for the Small Firm Lawyer:
"Vercammen's new marketing book belongs in the tool box and library of every lawyer regardless of firm size. Ken not only tells the lawyer WHAT to do, he shows the lawyer HOW to do it."     
        -Jay Foonberg-Author of How to Start and Build a Law Practice, 5th Ed  


Service Hotline800-285-2221
312-988-5000


Monday, July 28, 2014

Book: "Smart Marketing For the Small Firm Lawyer" Order Form




Author:
Kenneth A Vercammen
Sponsor(s):
Solo, Small Firm and General Practice Division
Publisher(s):
ABA Book Publishing 

ISBN: 978-1-62722-484-0
Product Code: 5150468 2014, 156 Pages, 7 x 10

 Marketing is essential to the growth of any enterprise. There are many low-cost and no-cost opportunities that exist. This book explores today’s marketing landscape and outlines its many facets for you in concise and easy to understand terms. 

Additional Information
•Table of Contents: TOC Smart Marketing 
About the Author: Kenneth Vercammen
Preface: Intro-Smart Marketing  
•List Price: $59.95 
ABA Price: $45.95 

Because you are a member, you are able to save on this order!

Item Details:
Any business owner will tell you that marketing is vital to the success and growth of a venture, and a law practice is no exception! This book thoroughly explores today’s marketing landscape and outlines its many facets for you in concise and easy to understand terms. This book will cover: Any business owner will tell you that marketing is vital to the success and growth of a venture, and a law practice is no exception! This book thoroughly explores today’s marketing landscape and outlines its many facets for you in concise and easy to understand terms. This book will cover: *Creating a blog for free *How to leverage a wide array of social networking sites (like Facebook, Martindale Hubble, Yelp, etc.) *Best practices for marketing within the law office *Low-cost and no-cost marketing activities *Tips to increase your efficiency and reach *And more! Included with this book is a helpful CD-ROM with digital copies of all the exhibits used in the book and the various websites that are referenced. Learn how to make the most the marketing opportunities that exist with Smart Marketing for the Small Firm Lawyer.

 Praise for Smart Marketing for the Small Firm Lawyer:
"Vercammen's new marketing book belongs in the tool box and library of every lawyer regardless of firm size. Ken not only tells the lawyer WHAT to do, he shows the lawyer HOW to do it."     

Jay Foonberg-Author of How to Start and Build a Law Practice, 5th Ed   

Saturday, January 25, 2014

Removing an Executor of an Estate in Monmouth County

Removing an Executor of an Estate in Monmouth County
By Kenneth A. Vercammen, Esq.
         In New Jersey, the court and surrogate do not supervise how an executor or administrator handles the estate. Unfortunately, the Executor occasionally fails to timely carry out their duties. They may fail to file tax returns, fail to keep records, misappropriate funds or ignore instructions under the Will. If you are not satisfied with the handling of the estate, you can have an attorney file a Complaint in the Superior Court. If there is no will, someone can petition the surrogate to be appointed as "administrator" of the estate.

         The New Probate Statute of NJ revised various sections of the New Jersey law on Wills and estates. law makes a number of substantial changes to the provisions governing the administration of estates and trusts in New.

Duty of Executor in Probate & Estate Administration
1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point you in the direction of a potential creditor;
2. Carefully examine the decedent's checkbook and check register for recurring payments, as these may indicate an existing debt;
3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death;
4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death;
         Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax.
         Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors.
Other duties/ Executor to Do
Bring Will to Surrogate
Apply to Federal Tax ID #
Set up Estate Account at bank (pay all bills from estate account)
Pay Bills
Notice of Probate to Beneficiaries (Attorney can handle)
If charity, notice to Atty General (Attorney can handle)
File notice of Probate with Surrogate (Attorney can handle)
File first Federal and State Income Tax Return [CPA- ex Marc Kane]
Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle)
File waivers within 8 months upon receipt (Attorney can handle)
Prepare Informal Accounting
Prepare Release and Refunding Bond (Attorney can handle)

Obtain Child Support Judgment clearance (Attorney will handle)

         Let's review the major duties involved-
In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
         An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.
         Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.
         Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.
         Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.
         Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.
         Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
         Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience
         At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.
         In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
         Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The court's decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will.
         An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.

         Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

         Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate's assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

         Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

         Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

         Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.
         Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates.

COMPLAINT FOR ACCOUNTING
A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate.
A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time.
As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$450 per hour, with a retainer of $4000 needed. Attorneys will require the full retainer to be paid in full up front.
The plaintiff can demand the following:
(1) That the named executor be ordered to provide an accounting of the estate to plaintiff.
(2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death.
(3) Payment of plaintiff's attorney's fees and costs of suit for the within action.
(4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate.
(5) That the executor be removed as the executor/administrator of the estate and that someone else be named as administrator of the estate.
(6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff.
EXECUTOR'S COMMISSIONS
Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets.
However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated.
SALE OF REAL ESTATE AND OTHER PROPERTY
Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to
1) remove the executor
2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent
3) compel the appraisal of the home and, thereafter, the sale of the property
4) make the executor reimburse the estate for the neglect or waste of assets.
CONCLUSION
As a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney.

Kenneth A. Vercammen is a Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

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 litigation matters, Municipal Court trials, and contested Probate hearings.

KENNETH VERCAMMEN
Attorney at Law
Legal Resume
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500

www.centraljerseyelderlaw.com

Defending the DWI blood & urine case.

Defending the DWI blood & urine case.

By Kenneth Vercammen, Co-chair, ABA Criminal Law Committee Solo Division

As a criminal defense attorney, the US Supreme Court McNeely case will help you defend your clients.
The US Supreme Court now requires warrant before taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013) decided April 17. I argue this decision also applies to urine cases where consent was not obtained in writing.
The US Supreme Court discussed how Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.
Held: The judgment is affirmed.  358 S. W. 3d 65, affirmed.
Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  
(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’ ” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.  
(b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U. S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically.  
(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.  
Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.
         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).
         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,  your Clients may wish to take photos of stop/accident location.  Clients may also wish to prepare a diagram of the stop/ accident location.

         The following is a portion of my Discovery demand in DWI blood and urine cases. This and 150 other forms are contained in the ABA Criminal Law Forms book. Details to purchase are at the end of the discovery demand form. Many of the ideas are used in the discovery demand written by John Menzel Esq. of NJ which were included in our seminar handbook “Handling Drug, DWI and Serious Municipal Court Cases”. Feel free to revise the below discovery demand to meet the requirements of your state:
“My client is charged with DWI- which has Consequences of Magnitude.
      It has been brought to my attention that the Lab conducting testing may not have been properly certified. We also require proof of 2013 certification for the lab.

Items required by defense and expert:

1 all gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986).   
2. All results and notes.
3. The operator's manual for all instruments used to test the substances, pursuant to State v Green 417 NJ Super. 190 (App. Div. 2010) and  State v Ford 240 N.J. Super. 44 (App. Div. 1990).  Defense requests all operating procedures, instruction manuals, test protocols, maintenance logs of the gas chromatograph or equipment used, performance evaluations, and test result printouts.
4. resume and personnel file of scientist
5. all the 911 and police calls for date of violation.
6.   copies of the 15 prior DRE reports by any DRE,
7. all DRE reports since this arrest
8. All video for police vehicles or other police vehicles involved.
9. names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by prosecuting attorney [or you]  as  to which of those persons prosecuting attorney [or you]  may call as witnesses; and there dates of birth

DRE and Field Sobriety testing:
1.  training materials for DRUG RECOGNITION EXPERT/ DRE kept by Police department
2 Many departments rely on the NHTSA Manuals dealing DRUG RECOGNITION EXPERT/ DRE. If your department relies on these manuals, please advise in writing the website link to the specific manual relied on by Police department

3.  Documents, which set forth any formal connection between the Police and the International Association of Chiefs of Police for DRE or Drug Recognition EXPERT

4 Written communications from the International Association of Chiefs of Police to Police department regarding Drug Recognition EXPERT between 1/1/2010 to present

5. Documents, which set forth Standards for an officer in Police department to become a DRUG RECOGNITION EXPERT/ DRE.

6. Documents which set forth procedures for officers in Police department to achieve certification or recognition as a for DRUG RECOGNITION EXPERT/ DRE.

7. The most recent training manual for DRUG RECOGNITION EXPERT/ DRE by your  department

     Regarding field sobriety testing:

8.   training materials for each any "test" usually given to individuals under suspicion of DWI including manuals, lesson plans, texts, tests, and article reprints kept by Police department.

9.   Many departments rely on the NHTSA Manuals dealing with field sobriety. If your department relies on these manuals, please advise in writing the website link to the specific manual relied on by Police department

10.        Documents, which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of walk and turn

11.        Documents, which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of finger to nose.

12.        Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform other field sobriety tests, such as the one legged stand.

13.        Documents, which set forth procedures for officers in Police department to achieve certification or recognition as a DRE.

14.        The most recent training manual for Field Sobriety Testing by Police department

15.        The NHTSA Manuals dealing with field sobriety in Police department.

16.        Documents from NHTSA dealing with field sobriety tests in Police department

17.        Documents from NJ Division of Highway Traffic Safety dealing with field sobriety tests in Police department.

18.                                   11.Documents used by Police department involving HGN testing

The following 

Scientific and medical tests—Blood and Urine Documents are requested by the experts

a. Documents on each and every analysis, standard, and control run in the series of runs involving analysis of the blood, including:
 (i) N.J.S.A. 2C:35-19a state forensic laboratory designation;
 (ii) documents generated for laboratory proficiency testing;
 (iii) N.J.S.A. 2C:35-19b laboratory employee certificate;
 (iv) N.J.S.A. 2C:35-19c notice of intent to proffer, if any;
 (v) each and every analysis, standard, and control run in the series of runs involving analysis of the blood, including color tests, chromatographic results, gas chromatography ["GC"] printouts, mass spectrometer ["MS"] printouts, printouts from any other analytical device ["AD"];
 (vi) chemist's notes;
 (vii) GC/MS/AD service records, if any;
 (viii) GC/MS/AD calibration curves, mass spectra and library spectra used to identify each such sample, if any;
 (ix) quality control manual;
 (x) testing procedures; and
 (xi) custody documents for the samples tested.


b. Production of the unused blood for analysis or a statement why the blood cannot be produced.


c. Production of the swab used to cleanse the area where any puncture of the skin took place, and an exemplar thereof.


d. Production of blood kit for inspection, and an exemplar thereof.


e. N.J.S.A. 2A:62A-10 request by law enforcement officer.


f. N.J.S.A. 2A:62A-11 withdrawal certificate.


g. Documents showing Defendant's consent to seizure.


4. Scientific and medical tests--Controlled Substances:
a. Documents on each and every analysis, standard, and control run in the series of runs involving analysis of the CDS samples, including:
 (i) N.J.S.A. 2C:35-19a state forensic laboratory designation;
 (ii) documents generated for laboratory proficiency testing;
 (iii) N.J.S.A. 2C:35-19b laboratory employee certificate;
 (iv) N.J.S.A. 2C:35-19c notice of intent to proffer, if any;
 (v) each and every analysis, standard, and control run in the series of runs involving analysis of the CDS samples, including color tests, chromatographic results, gas chromatography ["GC"] printouts, mass spectrometer ["MS"] printouts, printouts from any other analytical device ["AD"];
 (vi) chemist's notes;
 (vii) GC/MS/AD service records, if any;
 (viii) GC/MS/AD calibration curves, mass spectra and library spectra used to identify each such sample, if any;
 (ix) quality control manual;
 (x) testing procedures; and
 (xi) custody documents for the samples tested.


b. Production of the substances and/or chemicals for analysis or a statement why they cannot be produced.


c. Documents showing Defendant's consent to seizure.

-       Search warrants applied for and all discovery under Rule 7:5-1b
-       Search warrants obtained
      Demand is made that the Prosecutor and Police provide us with discovery pursuant to Rule 3:13-3, Rule 7:7-7(b) and Brady v Maryland, 373 U.S. 83 (1963).  Included is demand for dispatcher time records and all CAD REPORTS/ COMPUTER ASSISTED DISPATCH REPORTS.
          Please preserve any video and advise if there is a video of the stop or arrest. If so, fax us the cost for the video and who the check is payable to.
           Please forward to me all documents which you have in your possession or which are in the possession of any law enforcement agency or the complainant pertaining to my client. Demand is made for a speedy trial. 

 If the Prosecutor has any questions I would be glad to speak with them.”

      Criminal Law Forms book
New book from the American Bar Association
Author: Kenneth Vercammen
    Use Criminal Law Forms to help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Forms helps lawyers face the challenges of:
       Criminal defense
       DWI cases
       Juvenile offenses
       Domestic violence
       Traffic violations
       Auto AccidentsDefending the DWI blood & urine case.

By Kenneth Vercammen, Co-chair, ABA Criminal Law Committee Solo Division

As a criminal defense attorney, the US Supreme Court McNeely case will help you defend your clients.
The US Supreme Court now requires warrant before taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013) decided April 17. I argue this decision also applies to urine cases where consent was not obtained in writing.
The US Supreme Court discussed how Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.
Held: The judgment is affirmed.  358 S. W. 3d 65, affirmed.
Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  
(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’ ” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.  
(b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U. S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically.  
(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.  
Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.
         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).
         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,  your Clients may wish to take photos of stop/accident location.  Clients may also wish to prepare a diagram of the stop/ accident location.

         The following is a portion of my Discovery demand in DWI blood and urine cases. This and 150 other forms are contained in the ABA Criminal Law Forms book. Details to purchase are at the end of the discovery demand form. Many of the ideas are used in the discovery demand written by John Menzel Esq. of NJ which were included in our seminar handbook “Handling Drug, DWI and Serious Municipal Court Cases”. Feel free to revise the below discovery demand to meet the requirements of your state:
“My client is charged with DWI- which has Consequences of Magnitude.
      It has been brought to my attention that the Lab conducting testing may not have been properly certified. We also require proof of 2013 certification for the lab.

Items required by defense and expert:

1 all gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986).   
2. All results and notes.
3. The operator's manual for all instruments used to test the substances, pursuant to State v Green 417 NJ Super. 190 (App. Div. 2010) and  State v Ford 240 N.J. Super. 44 (App. Div. 1990).  Defense requests all operating procedures, instruction manuals, test protocols, maintenance logs of the gas chromatograph or equipment used, performance evaluations, and test result printouts.
4. resume and personnel file of scientist
5. all the 911 and police calls for date of violation.
6.   copies of the 15 prior DRE reports by any DRE,
7. all DRE reports since this arrest
8. All video for police vehicles or other police vehicles involved.
9. names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by prosecuting attorney [or you]  as  to which of those persons prosecuting attorney [or you]  may call as witnesses; and there dates of birth

DRE and Field Sobriety testing:
1.  training materials for DRUG RECOGNITION EXPERT/ DRE kept by Police department
2 Many departments rely on the NHTSA Manuals dealing DRUG RECOGNITION EXPERT/ DRE. If your department relies on these manuals, please advise in writing the website link to the specific manual relied on by Police department

3.  Documents, which set forth any formal connection between the Police and the International Association of Chiefs of Police for DRE or Drug Recognition EXPERT

4 Written communications from the International Association of Chiefs of Police to Police department regarding Drug Recognition EXPERT between 1/1/2010 to present

5. Documents, which set forth Standards for an officer in Police department to become a DRUG RECOGNITION EXPERT/ DRE.

6. Documents which set forth procedures for officers in Police department to achieve certification or recognition as a for DRUG RECOGNITION EXPERT/ DRE.

7. The most recent training manual for DRUG RECOGNITION EXPERT/ DRE by your  department

     Regarding field sobriety testing:

8.   training materials for each any "test" usually given to individuals under suspicion of DWI including manuals, lesson plans, texts, tests, and article reprints kept by Police department.

9.   Many departments rely on the NHTSA Manuals dealing with field sobriety. If your department relies on these manuals, please advise in writing the website link to the specific manual relied on by Police department

10.        Documents, which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of walk and turn

11.        Documents, which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of finger to nose.

12.        Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform other field sobriety tests, such as the one legged stand.

13.        Documents, which set forth procedures for officers in Police department to achieve certification or recognition as a DRE.

14.        The most recent training manual for Field Sobriety Testing by Police department

15.        The NHTSA Manuals dealing with field sobriety in Police department.

16.        Documents from NHTSA dealing with field sobriety tests in Police department

17.        Documents from NJ Division of Highway Traffic Safety dealing with field sobriety tests in Police department.

18.                                   11.Documents used by Police department involving HGN testing

The following 

Scientific and medical tests—Blood and Urine Documents are requested by the experts

a. Documents on each and every analysis, standard, and control run in the series of runs involving analysis of the blood, including:
 (i) N.J.S.A. 2C:35-19a state forensic laboratory designation;
 (ii) documents generated for laboratory proficiency testing;
 (iii) N.J.S.A. 2C:35-19b laboratory employee certificate;
 (iv) N.J.S.A. 2C:35-19c notice of intent to proffer, if any;
 (v) each and every analysis, standard, and control run in the series of runs involving analysis of the blood, including color tests, chromatographic results, gas chromatography ["GC"] printouts, mass spectrometer ["MS"] printouts, printouts from any other analytical device ["AD"];
 (vi) chemist's notes;
 (vii) GC/MS/AD service records, if any;
 (viii) GC/MS/AD calibration curves, mass spectra and library spectra used to identify each such sample, if any;
 (ix) quality control manual;
 (x) testing procedures; and
 (xi) custody documents for the samples tested.


b. Production of the unused blood for analysis or a statement why the blood cannot be produced.


c. Production of the swab used to cleanse the area where any puncture of the skin took place, and an exemplar thereof.


d. Production of blood kit for inspection, and an exemplar thereof.


e. N.J.S.A. 2A:62A-10 request by law enforcement officer.


f. N.J.S.A. 2A:62A-11 withdrawal certificate.


g. Documents showing Defendant's consent to seizure.


4. Scientific and medical tests--Controlled Substances:
a. Documents on each and every analysis, standard, and control run in the series of runs involving analysis of the CDS samples, including:
 (i) N.J.S.A. 2C:35-19a state forensic laboratory designation;
 (ii) documents generated for laboratory proficiency testing;
 (iii) N.J.S.A. 2C:35-19b laboratory employee certificate;
 (iv) N.J.S.A. 2C:35-19c notice of intent to proffer, if any;
 (v) each and every analysis, standard, and control run in the series of runs involving analysis of the CDS samples, including color tests, chromatographic results, gas chromatography ["GC"] printouts, mass spectrometer ["MS"] printouts, printouts from any other analytical device ["AD"];
 (vi) chemist's notes;
 (vii) GC/MS/AD service records, if any;
 (viii) GC/MS/AD calibration curves, mass spectra and library spectra used to identify each such sample, if any;
 (ix) quality control manual;
 (x) testing procedures; and
 (xi) custody documents for the samples tested.


b. Production of the substances and/or chemicals for analysis or a statement why they cannot be produced.


c. Documents showing Defendant's consent to seizure.

-       Search warrants applied for and all discovery under Rule 7:5-1b
-       Search warrants obtained
      Demand is made that the Prosecutor and Police provide us with discovery pursuant to Rule 3:13-3, Rule 7:7-7(b) and Brady v Maryland, 373 U.S. 83 (1963).  Included is demand for dispatcher time records and all CAD REPORTS/ COMPUTER ASSISTED DISPATCH REPORTS.
          Please preserve any video and advise if there is a video of the stop or arrest. If so, fax us the cost for the video and who the check is payable to.
           Please forward to me all documents which you have in your possession or which are in the possession of any law enforcement agency or the complainant pertaining to my client. Demand is made for a speedy trial. 

 If the Prosecutor has any questions I would be glad to speak with them.”

      Criminal Law Forms book
New book from the American Bar Association
Author: Kenneth Vercammen
    Use Criminal Law Forms to help represent persons charged with criminal and traffic offenses. Detailed instruction and valuable insight is offered beginning with the initial contact with the client, to walking into the courthouse, and managing the steps that follow. Two hundred and ten modifiable forms help make criminal lawyers more efficient and productive, while also reducing the chance for mistakes. Criminal Law Forms helps lawyers face the challenges of:
•       Criminal defense
•       DWI cases
•       Juvenile offenses
•       Domestic violence
•       Traffic violations
•       Auto Accidents
•       And much more
Regular price $139.95,  GP SOLO Member Price $129.95 To order contact ABA Customer Care, 1-800-285-2221 321 N. Clark Street, Chicago, IL 60653 or fax to 312-988-6030 (PC: 5150457
ISBN:
978-1-61438-879-1

http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5150457

       And much more
Regular price $139.95,  GP SOLO Member Price $129.95 To order contact ABA Customer Care, 1-800-285-2221 321 N. Clark Street, Chicago, IL 60653 or fax to 312-988-6030 (PC: 5150457) 
ISBN:
978-1-61438-879-1

http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5150457