Defending the DWI Under Influence Case when blood drawn N.J.S.A 39:4-50
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 DRIVER'S 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), aff'd 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), aff'd 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 machinist's 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 specialist's 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).

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