Brief to Dismiss DWI Summons Based on Police Failure to Comply with NJ Attorney General Guideline on DWI and Refusal |
The mandatory guidelines established by our Attorney General were not followed in this case. The "ATTORNEY GENERAL GUIDELINE: PROSECUTION OF DWI & REFUSAL VIOLATIONS" of January 24, 2005 requires the arresting police officer to give the defendant a copy of the Alcohol Influence Report. The police violated this new AG Guideline. The Attorney General issued the following Guideline to all Prosecutors and Police on January 24, 2005: TO: ALL COUNTY PROSECUTORS ALL MUNICIPAL PROSECUTORS FROM: PETER C. HARVEY, ATTORNEY GENERAL SUBJECT: ATTORNEY GENERAL GUIDELINE: PROSECUTION OF DWI & REFUSAL VIOLATIONS DATE: January 24, 2005 Section 3 of P.L. 2004, chapter 8, 1 included a provision that the Attorney General shall promulgate guidelines concerning the prosecution of DWI and DWI refusal violations. The Legislative purpose for these Guidelines is ?to promote the uniform enforcement of [the DWI and refusal statutes.]? Therefore, pursuant to P.L. 2004, c.8, ?3, and the authority granted to the Attorney General of the State of New Jersey by the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., and N.J.S.A. 2B:12-27, the following Guidelines are issued to All County and Municipal Prosecutors for the Prosecution of DWI and Refusal Violations. These Guidelines replace all previously issued memoranda from the Division of Criminal Justice or the Attorney General, regarding the Standard (Refusal) Statements for DWI refusal, CDL/DWI refusal and OVWI refusal. Please inform all of the police departments and law enforcement agencies in your county. These Guidelines do not, however, replace or rescind any Attorney General Law Enforcement Directives issued regarding DWI or DWI related subjects. E.g., Attorney General........ On page 20 of the Attorney General Guideline, the defendant shall be given a copy of the Alcohol Influence Report. The police violated the Attorney General Guideline, and failed to provide the defendant, after processing, with the Alcohol Influence Report. Guideline- Page 19: Fulfilling the Statutory Requirements for Implied Consent by Law Enforcement Guideline- Page 20: #2 The person ?shall be permitted to have such samples taken and chemical tests of his[/her] breath, urine or blood made by a person or physician of his own selection.? This second provision is designed to inform the defendant of his/her statutory right to obtain an independent test of their own breath, blood or urine. N.J.S.A. 39:4-50.2(c); N.J.S.A. 39:3-10.24c; N.J.S.A. 12:7-55c. State v. Jalkiewicz, 303 N.J. Super. 430, 432, 434, 435 (App. Div. 1997), questioning State v. Broadley, 281 N.J. Super. 230 (Law Div. 1992), certif. den. 135 N.J. 468 (1994); State v. Hicks, 228 N.J. Super. 541, 544 (App. Div. 1988), certif. den. 127 N.J. 324 (1990); State v. Ettore, 228 N.J. Super. at 30-1. Guideline- Page 18: The need to obtain chemical breath test evidence, in a prompt manner, due to the speed with which alcohol is dissipated by the body is also discussed. Guideline- Page 19: Breath samples are a nontestimonial form of evidence. State v. Macuk, 57 N.J. 1, 14 (1970). Accordingly, a defendant does not have a Fifth Amendment right to consult with an attorney before taking the test, nor does a defendant have a right to have an attorney present when the test is performed. State v. Leavitt, 107 N.J. 534, 536, 540 (1987); see also, Macuk, supra, 57 N.J. at 16, (holding that police officers are not required to give defendants Miranda warnings prior to administration of [a B]reathalyzer test because "fundamental reason for the Miranda rules is just not present"). Additionally, because breath sample evidence "is evanescent and may disappear in a few hours," State v. Dyal, 97 N.J. 229, 239 (1984), police must administer the [B]reathalyzer test within a reasonable time after the arrest in order to obtain an accurate reading. Leavitt, supra, 107 N.J. at 541; see also, State v. Pandoli, 109 N.J. Super. 1, 4 (App. Div. 1970) (noting "rapidity with which the passage of time and physiological processes tend to eliminate evidence of ingested alcohol in the system"); State v. Corrado, 184 N.J. Super. 561, 568 (App. Div. 1982) (holding one-hour delay in consenting to take [a B]reathalyzer test violated Implied Consent Law). NJSA 39:4-50.3. sets forth the Method of analyses; approval of techniques; certification of analysts; reports; forms in DWI cases in New Jersey" The Appellate Division recently court recognized that all Police Officers are bound by Attorney General Guidelines. more at http://KennethVercammen.com/BriefNoAlcoholInfReport.html |
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Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate 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.
To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.
Kenneth Vercammen & Associates, P.C,
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Edison, NJ 08817,
(732) 572-0500