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, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm
Kenneth Vercammen & Associates, P.C,
2053 Woodbridge Avenue,
Edison, NJ 08817,
Thursday, August 11, 2016
Objecting to consent forms in dwi blood cases
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 DRIVERS 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).
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).
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