| According to New Jersey Police Departments, Ecstasy is a slang name for the chemical substance methylene dioxy methamphetamine, or MDMA, that combines a powerful stimulant with a hallucinogen. MDMA is chemically similar to the synthetic stimulant methamphetamine. Street "Ecstasy" could contain just about anything. It is generally manufactured in clandestine labs by criminal drug dealers, not chemists. Ecstasy usually comes in tablets, which have been found to contain anywhere from 0-50% MDMA. The most common non-MDMA ingredients in "Ecstasy" are aspirin, caffeine, and other over-the-counter medications. One of the most dangerous additives commonly found in "Ecstasy" is DXM (dextromethorphan,) a cough suppressant. In the doses usually found in fake Ecstasy, 13 to 14 times the amount found in cough syrup, DXM can cause hallucinations. DXM inhibits sweating, so it can cause heatstroke and death. Another dangerous adulterant in so-called Ecstasy is PMA (paramethoxyamphetamine), an illegal drug that is a potent hallucinogen. Like MDMA, PMA causes an elevation in body temperature, but at an even more drastic rate. Ecstasy tablets may be any color, and are generally embossed with a logo or design such as a butterfly, heart, lightning bolt, star, clover, or Zodiac sign. Ecstasy is sometimes found in powder or in capsules. Penalties for Possession of Indictable Drugs in New Jersey- Possession of a Schedule I Narcotic There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with possession of Ecstasy or other Narcotics (CDS). Advocacy, commitment, and persistence are essential to defending a client accused of involvement with Narcotics. In New Jersey, there are drug laws which established Schedules of illegal drugs. Schedule I drugs are among the most serious. New Jersey does not call serious drug offense "felonies". They are called "crimes . New Jersey Statute 2C:35-10 makes it illegal to possess illegal drugs: 2C:35-10. Possession, Use or Being Under the Influence, or Failure to Make Lawful Disposition. a. It is unlawful for any person, knowingly or purposely, to obtain, or to possess, actually or constructively, a controlled dangerous substance or controlled substance analog, unless the substance was obtained directly, or pursuant to a valid prescription or order form from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by P.L. 1970, c.226 (C.24:21-1 et seq.). Any person who violates this section with respect to: (1) A controlled dangerous substance, or its analog, classified in Schedule I, II, III or IV other than those specifically covered in this section, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $35,000.00 may be imposed; (2) Any controlled dangerous substance, or its analog, classified in Schedule V, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $15,000.00 may be imposed; (3) Possession of more than 50 grams of marijuana, including any adulterants or dilutants, or more than five grams of hashish is guilty of a crime of the fourth degree, except that, notwithstanding the provisions of subsection b. of N.J.S. 2C:43-3, a fine of up to $25,000.00 may be imposed; or (4) Possession of 50 grams or less of marijuana, including any adulterants or dilutants, or five grams or less of hashish is a disorderly person. Any person who commits any offense defined in this section while on any property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of any such school property or a school bus, or while on any school bus, and who is not sentenced to a term of imprisonment, shall, in addition to any other sentence which the court may impose, be required to perform not less than 100 hours of community service. b. Any person who uses or who is under the influence of any controlled dangerous substance, or its analog, for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person. In a prosecution under this subsection, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific drug, but it shall be sufficient for a conviction under this subsection for the State to prove that the accused did use or was under the influence of some controlled dangerous substance, counterfeit controlled dangerous substance, or controlled substance analog, by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled dangerous substance or controlled substance analog. c. Any person who knowingly obtains or possesses a controlled dangerous substance or controlled substance analog in violation of subsection a. of this section and who fails to voluntarily deliver the substance to the nearest law enforcement officer is guilty of a disorderly persons offense. Nothing in this subsection shall be construed to preclude a prosecution or conviction for any other offense defined in this title or any other statute. 2C:43-1. Degrees of crimes 2C:43-1. Degrees of Crimes. a. Crimes defined by this code are classified, for the purpose of sentence, into four degrees, as follows: (1) Crimes of the first degree; (2) Crimes of the second degree; (3) Crimes of the third degree; and (4) Crimes of the fourth degree. A crime is of the first, second, third or fourth degree when it is so designated by the code. An offense, declared to be a crime, without specification of degree, is of the fourth degree. b. Notwithstanding any other provision of law, a crime defined by any statute of this State other than this code and designated as a high misdemeanor shall constitute for the purpose of sentence a crime of the third degree. Except as provided in sections 2C:1-4c. and 2C:1-5b. and notwithstanding any other provision of law, a crime defined by any statute of this State other than this code and designated as a misdemeanor shall constitute for the purpose of sentence a crime of the fourth degree. Possible Jail and other Penalties 2C:43-2 Sentence in accordance with code; authorized dispositions. a. Except as otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter. b. Except as provided in subsection a. of this section and subject to the applicable provisions of the code, the court may suspend the imposition of sentence on a person who has been convicted of an offense, or may sentence him as follows: (1)To pay a fine or make restitution authorized by N.J.S. 2C:43-3 or P.L. 1997, c.253 (C. 2C:43-3.4 et al.); or (2)Except as provided in subsection g. of this section, to be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation, or in the case of a person convicted of a disorderly persons offense, to imprisonment for a term fixed by the court not exceeding 90 days to be served as a condition of probation; or (3)To imprisonment for a term authorized by sections 2C:11-3, 2C:43-5, 2C:43-6, 2C:43-7, and 2C:43-8 or 2C:44-5; or (4)To pay a fine, make restitution and probation, or fine, restitution and imprisonment; or (5)To release under supervision in the community or to require the performance of community-related service; or (6)To a halfway house or other residential facility in the community, including agencies which are not operated by the Department of Human Services; or (7)To imprisonment at night or on weekends with liberty to work or to participate in training or educational programs. c. Instead of or in addition to any disposition made according to this section, the court may postpone, suspend, or revoke for a period not to exceed two years the driver's license, registration certificate, or both of any person convicted of a crime, disorderly persons offense, or petty disorderly persons offense in the course of which a motor vehicle was used. In imposing this disposition and in deciding the duration of the postponement, suspension, or revocation, the court shall consider the severity of the crime or offense and the potential effect of the loss of driving privileges on the person's ability to be rehabilitated. Any postponement, suspension, or revocation shall be imposed consecutively with any custodial sentence. d. This chapter does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence. e. The court shall state on the record the reasons for imposing the sentence, including its findings pursuant to the criteria for withholding or imposing imprisonment or fines under sections 2C:44-1 to 2C:44-3, where imprisonment is imposed, consideration of the defendant's eligibility for release under the law governing parole and the factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence. f. The court shall explain the parole laws as they apply to the sentence and shall state: (1)the approximate period of time in years and months the defendant will serve in custody before parole eligibility; (2)the jail credits or the amount of time the defendant has already served; (3)that the defendant may be entitled to good time and work credits; and (4)that the defendant may be eligible for participation in the Intensive Supervision Program. g. Notwithstanding the provisions of paragraph (2) of subsection b. of this section, a court imposing sentence on a defendant who has been convicted of any offense enumerated in subsection a. of section 2 of P.L. 1994, c.130 (C. 2C:43-6.4) may not sentence the defendant to be placed on probation. Amended 1979, c.178, s.82; 1981, c.269, s.2; 1983, c.124, s.1; 1987, c.106, s.9; 1994, c.155; 1997, c.253, s.1; 2C:43-3.5 Additional penalty for certain offenses. 1. a. In addition to any term or condition that may be included in an agreement for supervisory treatment pursuant to N.J.S. 2C:43-13 or imposed as a term or condition of conditional discharge pursuant to N.J.S. 2C: 36A-1 for a violation of any offense defined in chapter 35 or 36 of Title 2C of the New Jersey Statutes, each participant shall be assessed a penalty of $50 for each adjudication or conviction. b. All penalties provided by this section shall be collected as provided for collection of fines and restitutions in section 3 of P.L. 1979, c.396 (C. 2C: 46-4) and shall be forwarded to the Department of the Treasury as provided in subsection c. of this section. c. All monies collected pursuant to this section shall be forwarded to the Department of the Treasury to be deposited in the " Drug Abuse Education Fund" established pursuant to section 1 of P.L. 1999, c.12 (C. 54A :9-25.12). d. Monies in the fund shall be appropriated by the Legislature on an annual basis in the manner and for the purposes prescribed by section 2 of P.L. 1999, c.12 (C. 54A :9-25.13). 2C:43-5. Young adult offenders Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex, in accordance with R.S. 30:4-146 et seq., in the case of men, and to the Correctional Institution for Women, in accordance with R.S. 30:4-153 et seq., in the case of women, instead of the sentences otherwise authorized by the code. This section shall not apply to any person less than 26 years of age at the time of sentencing who qualifies for a mandatory minimum term of imprisonment without eligibility for parole, pursuant to subsection c. of N.J.S. 2C:43-6; however, notwithstanding the provisions of subsection c. of N.J.S. 2C:43-6, the mandatory minimum term may be served at the Youth Correctional Institution Complex or the Correctional Institution for Women. 2C:43-6. Sentence of Imprisonment for Crime; Ordinary Terms; Mandatory Terms. a. Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment, as follows: (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. b. As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, as set forth in subsections a. and b. of 2C:44-1, the court may fix a minimum term not to exceed one-half of the term set pursuant to subsection a., or one-half of the term set pursuant to a maximum period of incarceration for a crime set forth in any statute other than this code, during which the defendant shall not be eligible for parole; provided that no defendant shall be eligible for parole at a date earlier than otherwise provided by the law governing parole. c. A person who has been convicted under 2C:39-4a. of possession of a firearm with intent to use it against the person of another, or of a crime under any of the following sections: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in 2C:39-1f., shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. The minimum terms established by this section shall not prevent the court from imposing presumptive terms of imprisonment pursuant to 2C:44-1f. (1) except in cases of crimes of the fourth degree. A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court. d. The court shall not impose a mandatory sentence pursuant to subsection c. of this section, 2C:43-7c. or 2C:44-3d., unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information. e. A person convicted of a third or subsequent offense involving State taxes under N.J.S. 2C: 20-9, N.J.S. 2C: 21-15, any other provision of this code, or under any of the provisions of Title 54 of the Revised Statutes, or Title 54A of the New Jersey Statutes, as amended and supplemented, shall be sentenced to a term of imprisonment by the court. This shall not preclude an application for and imposition of an extended term of imprisonment under N.J.S. 2C: 44-3 if the provisions of that section are applicable to the offender. f. A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C: 35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S. 2C: 35-4, of employing a juvenile in a drug distribution scheme under N.J.S. 2C: 35-6, leader of a narcotics trafficking network under N.J.S. 2C: 35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L. 1987, c.101 (C. 2C: 35-7), who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S. 2C: 35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S. 2C: 35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information. For the purpose of this subsection, a previous conviction exists where the actor has at any time been convicted under chapter 35 of this title or Title 24 of the Revised Statutes or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to N.J.S. 2C: 35-3, N.J.S. 2C: 35-4, N.J.S. 2C: 35-5, N.J.S. 2C: 35-6 or section 1 of P.L. 1987, c.101 (C. 2C: 35-7). Mandatory drug enforcement and demand reduction penalties; collection; disposition; suspension 2C:35-15. a. In addition to any disposition authorized by this title, the provisions of section 24 of P.L. 1982, c.77 (C. 2A: 4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, every person convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed for each such offense a penalty fixed at: (1) $3,000.00 in the case of a crime of the first degree; (2) $2,000.00 in the case of a crime of the second degree; (3) $1,000.00 in the case of a crime of the third degree; (4) $750.00 in the case of a crime of the fourth degree; (5) $500.00 in the case of a disorderly persons or petty disorderly persons offense. Every person placed in supervisory treatment pursuant to the provisions of N.J.S. 2C: 36A-1 or N.J.S. 2C:43-12 for a violation of any offense defined in this chapter or chapter 36 of this title shall be assessed the penalty prescribed herein and applicable to the degree of the offense charged, except that the court shall not impose more than one such penalty regardless of the number of offenses charged. If the person is charged with more than one offense, the court shall impose as a condition of supervisory treatment the penalty applicable to the highest degree offense for which the person is charged. All penalties provided for in this section shall be in addition to and not in lieu of any fine authorized by law or required to be imposed pursuant to the provisions of N.J.S. 2C: 35-12. b. All penalties provided for in this section shall be collected as provided for collection of fines and restitutions in section 3 of P.L. 1979, c.396 (C. 2C: 46-4), and shall be forwarded to the Department of the Treasury as provided in subsection c. of this section. c. All moneys collected pursuant to this section shall be forwarded to the Department of the Treasury to be deposited in a nonlapsing revolving fund to be known as the "Drug Enforcement and Demand Reduction Fund." Moneys in the fund shall be appropriated by the Legislature on an annual basis for the purposes of funding in the following order of priority: (1) the Alliance to Prevent Alcoholism and Drug Abuse and its administration by the Governor's Council on Alcoholism and Drug Abuse; (2) the "Alcoholism and Drug Abuse Program for the Deaf, Hard of Hearing and Disabled" established pursuant to section 2 of P.L. 1995, c.318 (C. 26: 2B-37); (3) the "Partnership for a Drug Free New Jersey," the State affiliate of the "Partnership for a Drug Free America"; and (4) other alcohol and drug abuse programs. Moneys appropriated for the purpose of funding the "Alcoholism and Drug Abuse Program for the Deaf, Hard of Hearing and Disabled" shall not be used to supplant moneys that are available to the Department of Health and Senior Services as of the effective date of P.L. 1995, c.318 (C. 26: 2B-36 et al.), and that would otherwise have been made available to provide alcoholism and drug abuse services for the deaf, hard of hearing and disabled, nor shall the moneys be used for the administrative costs of the program. d.(Deleted by amendment, P.L. 1991, c.329). e. The court may suspend the collection of a penalty imposed pursuant to this section; provided the person is ordered by the court to participate in a drug or alcohol rehabilitation program approved by the court; and further provided that the person agrees to pay for all or some portion of the costs associated with the rehabilitation program. In this case, the collection of a penalty imposed pursuant to this section shall be suspended during the person's participation in the approved, court-ordered rehabilitation program. Upon successful completion of the program, as determined by the court upon the recommendation of the treatment provider, the person may apply to the court to reduce the penalty imposed pursuant to this section by any amount actually paid by the person for his participation in the program. The court shall not reduce the penalty pursuant to this subsection unless the person establishes to the satisfaction of the court that he has successfully completed the rehabilitation program. If the person's participation is for any reason terminated before his successful completion of the rehabilitation program, collection of the entire penalty imposed pursuant to this section shall be enforced. Nothing in this section shall be deemed to affect or suspend any other criminal sanctions imposed pursuant to this chapter or chapter 36 of this title. 2C:35-16. Mandatory forfeiture or postponement of driving privileges 2C:35-16. Mandatory Forfeiture or Postponement of Driving Privileges. In addition to any disposition authorized by this title, the provisions of section 24 of P.L. 1982, c. 77 (C. 2A: 4A-43), or any other statute indicating the dispositions that can be ordered for an adjudication of delinquency, and notwithstanding the provisions of subsection c. of N.J.S. 2C:43-2 every person convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period to be fixed by the court at not less than six months or more than two years which shall commence on the day the sentence is imposed. In the case of any person who at the time of the imposition of sentence is less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court of not less than six months or more than two years after the day the person reaches the age of 17 years. If the driving privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement. The court before whom any person is convicted of or adjudicated delinquent for a violation of any offense defined in this chapter or chapter 36 of this title shall collect forthwith the New Jersey driver's license or licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the Director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle during the period of license suspension or postponement imposed pursuant to this section, the person shall, upon conviction, be subject to the penalties set forth in R.S. 39:3-40. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of R.S. 39:3-40. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the license but shall notify forthwith the Director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the person's non-resident driving privilege in this State. In addition to any other condition imposed, a court may in its discretion suspend, revoke or postpone in accordance with the provisions of this section the driving privileges of a person admitted to supervisory treatment under N.J.S. 2C: 36A-1 or N.J.S. 2C:43-12 without a plea of guilty or finding of guilt. (This means if your attorney makes a Motion for you to be accepted into the Condition Discharge or PTI, sometimes a drivers license suspension can be avoided ). The drug statute uses the scientific chemical names. SCHEDULE I- Illegal drugs NJSA 24:21-5 Opiates, including their isomers, esters, and ethers, unless specifically excepted, whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation: (1) Acetylmethadol (2) Allylprodine (3) Alphacetylmethadol (4) Alphameprodine (5) Alphamethadol (6) Benzethidine (7) Betacetylmethadol (8) Betameprodine (9) Betamethadol (10) Betaprodine (11) Clonitazene (12) Dextromoramide (13) Dextrorphan (14) Diampromide (15) Diethylthiambutene (16) Dimenoxadol (17) Dimepheptanol (18) Dimethylthiambutene (19) Dioxaphetyl butyrate (20) Dipipanone (21) Ethylmethylthiambutene (22) Etonitazene (23) Etoxeridine (24) Furethidine (25) Hydroxypethidine (26) Ketobemidone (27) Levomoramide (28) Levophenacylmorphan (29) Morpheridine (30) Noracymethadol (31) Norlevorphanol (32) Normethadone (33) Norpipanone (34) Phenadoxone (35) Phenampromide (36) Phenomorphan (37) Phenoperidine (38) Piritramide (39) Proheptazine (40) Properidine (41) Racemoramide (42) Trimeperidine. d. Any of the following narcotic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation: (1) Acetorphine (2) Acetylcodone (3) Acetyldihydrocodeine (4) Benzylmorphine (5) Codeine methylbromide (6) Codeine-N-Oxide (7) Cyprenorphine (8) Desomorphine (9) Dihydromorphine (10) Etorphine (11) Heroin (12) Hydromorphinol (13) Methyldesorphine (14) Methylhydromorphine (15) Morphine methylbromide (16) Morphine methylsulfonate (17) Morphine-N-Oxide (18) Myrophine (19) Nicocodeine (20) Nicomorphine (21) Normorphine (22) Phoclodine (23) Thebacon. e. Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation: (1) 3,4-methylenedioxy amphetamine (2) 5-methoxy-3,4-methylenedioxy amphetamine (3) 3,4,5-trimethoxy amphetamine (4) Bufotenine (5) Diethyltryptamine (6) Dimethyltryptamine (7) 4-methyl-2,5-dimethoxylamphetamine (8) Ibogaine (9) Lysergic acid diethylamide (10) Marihuana (11) Mescaline (12) Peyote (13) N-ethyl-3-piperidyl benzilate (14) N-methyl-3-piperidyl benzilate (15) Psilocybin (16) Psilocyn (17) Tetrahydrocannabinols. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 |
Tuesday, November 26, 2019
Ecstasy - a Criminal Offense in New Jersey
In NJ, DWI Driver Cannot Be Sentenced as Second Time School Zone Offender Unless He Had a Prior School Zone Conviction
| DWI Driver cannot be sentenced an 2nd time school zone offender unless he had a prior school zone conviction State v. Reiner 363 NJ 167 (2004). Subsection (a)[regular DWI] and (g)[school zone DWI of N.J.S.A. 39:4-50 are separate offenses; therefore, in order to be sentenced as a second-time offender under subsection (g), there must be another prior school zone conviction against the defendant under that subsection. Therefore, the statute must be construed strictly against the State and in favor of Reiner. Under the circumstances here, the more favorable result for Reiner would be to construe subsection (g) as a separate offense that requires other subsection (g) convictions for repeat status to attach. In respect of the subsection (g) offense, Reiner is a first-time offender. He is a repeat offender only under subsection (a). DWI and DWI School Zone Merge! Maximum two year suspension. |
Major NJ Drug and DWI Cases in Municipal and Criminal Court 2002-2003
SELECTED BY KENNETH VERCAMMEN
1. Can Police search car after drugs found on exited passenger? No- Possession of Drugs on Person Alone Does Not Permit Search of Car. State v. Wilson (App. Div.). This appeal addresses the question of whether drugs found on a person who was recently a passenger in a vehicle constitute probable cause to search that vehicle. On the facts presented we hold that probable cause was not established.
2. Can car stop be done on Anonymous Tip? No- DWI Stop Not Permitted On Anonymous Tip. State v. Golotta App. Div. Police did not have reasonable suspicion of criminal or quasi-criminal activity to stop motor vehicle based solely on a tip from an anonymous caller. Furthermore, due to the very narrow factual focus of the testimony at the suppression motion in the municipal court, the Law Division judge should have remanded the matter to the municipal court rather than enter a judgment of acquittal after it granted defendant's motion to suppress.
3 In drug cases, state sends notice it will rely on lab report in drug case, does lab cert go in if defense attorney files objection? No Lab Tech. Must Testify in Drug Case. State v. Simbara December 16, 2002 Justice Verniero for Unanimous court The state must produce for cross-examination the laboratory employee or analyst who prepared the certificate proffered by the state pursuant to N.J.S.A. 2C:35-19 to establish the nature and quantity of an alleged controlled dangerous substance whenever a defendant timely invokes the right to confront that witness in a challenge to the certificate.
4. If late objection to drug lab cert, does lab cert go into evidence? No Even If Late Objection to Lab Cert. Is Late, Judge Must Hold Evidence Hearing. State in the Interest of C.D. App. Div. Notice here was 2 days late In the case of two juveniles arrested and charged with drug offenses, where the state, pursuant to N.J.S.A. 2C:35-19(c), formally noticed defense counsel of its intent to proffer in evidence lab certificates attesting to the nature and quantity of drugs found, and counsel within ten days verbally noticed the state of its objection and then served a written notice thereof within twelve days; and, where, upon the hearing required by the statute, the judge denied admissibility of the certificates without the testimony of the lab technician who performed the tests, held that (1) the defense's late written notice did not prejudice the state and properly put the state on notice of its objection; (2) N.J.S.A. 2C:35-19 does not itself establish a standard of admissibility of lab certificates; (3) the judge's ruling based upon the fill-in-the-blank form of the certificates was in error; and, (4) the matter would be remanded for a new evidential hearing on the methods, practices and procedures of the lab sufficient under N.J.R.E. 803 (c) (6) or 803 (c) (8) to establish the general reliability and trustworthiness of the tests performed in that lab justifying the admissibility of the certificates.
5. Can police search fanny pack prior to arrest? No- cant Search of Fanny Pack If No Arrest yet. State v. Todd App. Div. We reverse the denial of defendant's motion to suppress the search of a fanny pack he was carrying, which was made after a valid Terry at 3:30 a.m., within minutes of and near the scene of a burglary, in order to enable the police officer to determine that it did not contain weapons prior to transporting defendant in the police car to the burglary scene for a show-up identification. The search was not constitutionally supportable on any basis, including (1) as a search incident to an arrest, because even though the officer had probable cause to arrest defendant, he had not then been arrested and actually was not arrested until considerably later; (2) as a search to prevent immediate harm, inasmuch as the officer did not believe that defendant was armed and dangerous; and (3) as a consent search, inasmuch as defendant was not informed of his right to consent.
6. DWI defendants must be told they can seek their own blood test. What if police don't have a procedure to permit defendant to seek test? Depends- If Police Thwart Independent Test, DWI Breath Test Inadmissible. State v. Greeley App. Div. Denial of motion to suppress results of breathalyzer and conviction for driving while intoxicated are reversed. Police department's refusal to release the defendant except into the custody of a relative or friend or upon demonstration of a return to sobriety effectively nullified the exercise of defendant's right to independent testing under N.J.S.A. 39:4-50.2. The lack of any formal policy regarding release, coupled with the imposition on this defendant of conditions of release the police knew he could not meet and which were not dictated by the objective indicia of insobriety impermissibly thwarted the defendant's ability to exercise the right to testing that he had requested. The right to have an independent blood test or other diagnostic procedure performed following submission to breathalyzer analysis is statutory; however, although N.J.S.A. 39:4-50.2 (c) mandates that the person charged with drunk driving be permitted to have the tests performed and be advised of that right, (d) provides no guidelines and establishes no uniform statewide regulations for the protection of that right; as a result, courts have addressed the issue of the right to independent testing and its protection on a case-by-case basis, focusing on whether an absence of procedures, or restrictive procedures, has thwarted the exercise of right.
7. Can a person drive drunk to escape from getting beaten? Sometimes- Defense of Necessity Permitted In DWI Case. State v. Romano App. Div. The common-law defense of necessity is available to a defendant charged with driving while intoxicated, where defendant was attacked and beaten by several men, sustained severe injuries, and where his car was shaken, kicked, and rocked, and his attackers threatened to kill him. Defendant had no realistic alternative but to violate the DWI statute to escape a brutal and potentially deadly attack. The trial judge erred in perceiving defendant's defense as duress rather than necessity and improperly shifted the burden of proof to defendant. Defendant must come forward with some evidence of the defense, but the state bears the ultimate responsibility to disprove the defense beyond a reasonable doubt. Defendant's DWI conviction is reversed. 8. Can police search a bulge in pants without search warrant or arrest? Yes- Police could search visible bulge. State v. Roach 172 NJ 19 (2002) The totality of the circumstances created an objectively reasonable concern for the officers' safety that justified their seizure of the contents of the bulge from Roach's person.
9. Can police lock up person on Petty disorderly? No- Petty disorderly offense usually does not permit arrest and lock up. State v. Dangerfield 171 NJ 446 (2002) The arrest of Dangerfield for trespassing was not supported by probable cause. The disposition of the Appellate Division is modified insofar as it holds that a petty disorderly persons offense should be treated differently than other offenses regarding the arrest power of police.
10. If no basis to believe defendant armed, can they stop and search? No suspicion that defendant was armed made investigatory stop illegal. State v. Richards 351 NJ Super. 289 (App. Div. 2002) Under the totality of the circumstances, the police officers did not have an articulable and reasonable basis to conclude that the defendant was armed and dangerous to justify the investigatory stop.
11. Is anonymous tip enough for Investigative detention? Probably not- Investigatory detention based on an anonymous tip not sufficient. State v. Rodriguez 172 NJ 117 (2002) Defendant was the subject of an investigative detention and the totality of the circumstances did not justify it.
12. Can police request a consent search on all motor vehicle stops? No- consent search unless suspicion. State v. Pegeese 351 NJ Super. 25 (App. Div. 2002) Where the state troopers requested a vehicle check prior to stopping the car (in which defendant was a passenger) for speeding and, while waiting for the results, it was discovered that neither defendant nor co-defendant had a valid driver's license or any identification, and the registration was in the name of another, the troopers were entitled to question them concerning their recent whereabouts while they waited for the results of the inquiry; however, the matter is remanded to determine whether the troopers had an articulable and reasonable suspicion that defendants were participating in criminal activity when the co-defendant consented to a search of the car, in which CDS were discovered.
13. If both criminal charges and DWI, and client gets into PTI, does the DWI case wait pending PTI conclusion? The County Prosecutor must decide whether to return the DWI to the municipal court, or retain DWI pending completion of the PTI State v. Fulford 349 NJ Super. 183 (App. Div. 2002) The state charged defendant Robert Fulford IV with speeding, drunk driving and an indictable weapons offense. Defendant argued that his constitutional right to a speedy trial was violated because the state did not try the driving charges until after the defendant completed pretrial intervention for the weapons offense. We distinguished State v. Farrell, 320 N.J. Super 425 (App. Div. 1999), and found that the 32-month delay did not violate the defendant's right to a speedy trial. We also pointed out that the prosecutor should have promptly determined whether to retain the drunk-driving charge for prosecution with the indictable offense, or return the charge for trial in municipal court. If the prosecutor elected not to return the charge to municipal court and defendant is about to enter PTI, the timing of the drunk-driving prosecution should be broached when the designated PTI judge is considering postponing proceedings against defendant under R. 3:28.
14. DWI- If less than 10 years between 2nd and 3rd offense, but more than 10 years between 1st and 3rd offense, what number offense? 1st, 2nd, 3rd? If less than 10 years between 2nd and 3rd offense, defendant is 3rd offender. State v. Burroughs 349 NJ Super. 225 (App. Div. 2002) The repeat-offender section of New Jersey's drunk-driving law imposes enhanced penalties with each succeeding conviction. However, if a second offense occurs more than 10 years after the defendant's first offense, he is to be treated as a first offender for sentencing purposes, and if a third offense occurs more than 10 years after the defendant's second offense, he is to be treated as a second offender for sentencing purposes. At issue here is whether the defendant is to be subject to second or third offender treatment where more than 10 years elapsed between his first and second drunk-driving offenses but less than 10 years between his second and third drunk-driving offenses. We hold that the Law Division was correct in requiring that defendant be sentenced as a third offender.
15 If defendant complains to cop that taking breathalyzer in under duress, and cop writes refusal and doesn't read the 2nd warnings on refusal, can a refusal charge stick? No- Refusal reversed where operator did not inform defendant of consequences for refusal. State v. Duffy (App. Div. 2002) Defendant was charged and convicted of refusing to take a breathalyzer test. Defendant replied that he would take the breathalyzer but it's under duress. We hold that the failure of the breathalyzer operator to inform the defendant that he interpreted defendant's response as a refusal, and that unless defendant replied "yes" to taking the test he would be cited for a refusal, to be a fatal defect in the state's case, requiring reversal.
16 The breathalyzer inspection protocol was revised in 1997 Does change in protocol and failure to provide in-house tests keep out breath test certs? No- Breath Test Certs admitted even where protocol revised. State v. Cleverley 348 NJ Super. 455 (App. Div. 2002) A 1997 revision in the state police protocols, providing for the use of an atomizer instead of human breath, in testing breathalyzers, does not affect the admissibility of the Breath Test Inspectors' Inspection Certification to establish the good working order of the breathalyzer. The purpose of the revision is to reduce simulator solution depletion and thus enhance the accuracy and reliability of the testing process. The revision was adopted by the state police in reliance on published studies by a recognized authority on the scientific reliability of the breathalyzer. The revision also accords with manufacturer recommendations and is generally consistent with a protocol adopted by the National Highway Traffic Safety Administration. Thousands of tests using the new procedure have yielded results consistent with the old procedure. The expert testimony produced by defendant was not more than speculation and did not undermine the reliability of the new procedure. The state was not required to produce evidence of in-house testing to verify the reliability of the new procedure for the BTIIC'S to be admissible.
17 If defendant objects to drug lab cert, is pre-trial hearing required for admissibility? Yes, Pre-trial Hearing on Lab Cert required. State v. Miller 170 NJ 417 (2002) Since a defendant cannot, as a matter of constitutional imperative, be assigned any burden of detailing objections to the admission of a lab certificate. N.J.S.A. 2C:35-19c is interpreted to require only that a defendant timely object to the lab certificate and assert that the composition, quality or quantity of the tested substance will be contested at trial, and defendant fully conformed with that notice requirement when he stated that he objected to the certificate's admissibility and that the "composition, quality and quantity of the substance submitted to the laboratory may be inaccurate and may be contested at trial," and suggested that he needed more information about the equipment used in the analysis; the matter is remanded to the trial court for a hearing on the reliability of the methodology underlying the certificate that the trial court admitted without a hearing or the production of the lab employee -- if the court determines that the employee should have been produced, the Appellate Division judgment affirmed defendant's conviction for possession of CDS will be reversed and a new trial ordered, but if the court rules that the report was properly admitted in lieu of testimony, the judgment will be affirmed.
18. After valid stop and request for written consent, is search valid? No-Consent search requires suspicion. State v. Carty 170 NJ 632 (2002) Consent searches during a lawful stop of a motor vehicle are not valid unless there is a reasonable and articulable suspicion to believe that the motorist or passenger has engaged in, or is about to engage in, criminal activity.
19 Are pretextual stops for tinted windows valid? Usually- Police could stop for tinted windows. State v. Cohen 347 NJ Super. 375 (App. Div. 2002) Defendant appealed the Law Division's affirmance of the municipal court's denial of a motion to suppress, which found that a stop of defendant's vehicle was justified based on the officer's reasonable belief that tinted windows constituted a violation of a motor vehicle statute. We affirmed, holding that N.J.S.A. 39:3-74 prohibits the use of tinted windows that fail to meet the applicable standard set forth in N.J.A.C. 13:20-33.7, Thereby overruling State v. Harrison, 236 N.J. Super. 69 (Law Div. 1989), and In re R.M. and J.M., 343 N.J. Super. 153 (Ch. Div. 2001). Further, an automobile stop is proper so long as it is based on a reasonable, articulable suspicion that a violation has occurred, and the officer's belief that the tinted windows represented a significant obstruction was sufficient to implicate the "community caretaking" function. Lastly, N.J.S.A. 39:3-15, which exempts non-resident owners of vehicles registered in other states from complying with New Jersey equipment requirements, does not preclude an officer from conducting an identification check of a noncompliance vehicle.
20 Can police seize drugs seen through a hole in house porch? Police can seize CDS seen through hole. State v. Johnson 170 NJ 385 (2002) The 4-3 decision in State v. Johnson allows the use at trial of crack cocaine seized by police at night from a hole at the base of a support post on a front porch. Writing for the majority, Justice James H. Coleman Jr. said an officer's conduct in seizing a clear plastic bag from the hole was reasonable under the plain-view doctrine.
21 When can search be done on home without warrant? Usually never- Exigent circumstances required prior to warrantless search of home. Kirk v. Louisiana ___ US __ Decided June 24, 2002). Court of Appeals conclusion that warrantless search of a home was constitutional, without deciding whether exigent circumstances were present, violates Us v. Payton doctrine that the firm line at the entrance to the house...may not reasonably be searched without a warrant. ------------------------------------------ New laws- DWI S of L moved to 90 days. P.L. 2002, c.57 Extends time to file complaint for drunk driving from 30 to 90 days.
Increased jail time for repeat offenders who drive while their licenses are revoked On June 24, 2002, Governor McGreevey signed A-1727 into law as P.L. 2002, c.28. The new law provides for progressive jail sentences for persons who continue to drive on the streets and highways of this State after their licenses have been suspended or revoked under certain circumstances. The law specifically provides that persons convicted for a second or subsequent offense of driving while their license is suspended or revoked, and that second or subsequent offense involves a motor vehicle moving violation, shall be imprisoned for ten days longer than the term of imprisonment imposed for the previous offense. The law defines a "motor vehicle moving violation" as any violation of the motor vehicle laws of this State for which motor vehicle points are assessed by the Director of Motor Vehicles. Under the new law, repeat offenders are not be subject to the increased term of imprisonment if the repeat offense involves a non-moving violation, such as a parking offense. P.L. 2002, c.28 (A-1727) ------------------------- 22 If uninsured and injured but not negligent, car insurance law bars driver from bringing PI suit. Can you help them get money? Unconstitutional is Barring Underinsured Person From Bringing Suit For Injuries. Caviglia and Caviglia v. Royal Tours of America et al. (App. Div.). Therefore, you may not need to contest the no insurance ticket N.J.S.A. 39:6A-4.5 bars a cause of action for both economic and non-economic damages by an uninsured injured driver against the tortfeasor. The total preclusion of all opportunity for any recovery was held unconstitutional on both equal protection and due process grounds.
23 Out of state suspension- If NJ driver gets DWI and is suspended in West Virginia, but NJ does not go to suspend for 3 years, has due process been violated? Delay by Another State in Notifying NJ DMV of DWI is Not Grounds to Stop NJ Suspension. [UNREPORTED] Roderick v. N.J. Div. of Motor Vehicles. ___ NJ Super. ___ 05-2-2197 (App. Div. December 3, 2002). The drivers may want to contact their home state to start suspension there. Computers eventually catch up. Although there was a three-year delay in West Virginia's reporting plaintiff's driving-while-intoxicated conviction to New Jersey, defendant Division of Motor Vehicles did not act improperly in immediately suspending plaintiff's driving privileges in New Jersey for 180 days based on his conviction for DWI in West Virginia; inter alia, New Jersey did not cause the delay and acted promptly on being notified of the conviction; and plaintiff himself caused some of the problem by not surrendering his New Jersey license and obtaining a West Virginia license, even though he had relocated to that state. Source: 170 N.J.L.J. 899
24. School Zone Speeding Not Guilty Where No Testimony Children In Area. [UNREPORTED] State v. Bandler. App. Div. The defendant's conviction for speeding in a school zone must be reversed, since the record is wholly lacking of the evidence necessary for finding that defendant violated the statute, to wit, not only that he was speeding in the zone, but that, at the time the defendant did so, it was either during recess, when children were clearly visible from the roadway, or that the violation occurred during the opening or closing hours of school, while children were going to or leaving the area. Source: 170 N.J.L.J. 899
1. Can Police search car after drugs found on exited passenger? No- Possession of Drugs on Person Alone Does Not Permit Search of Car. State v. Wilson (App. Div.). This appeal addresses the question of whether drugs found on a person who was recently a passenger in a vehicle constitute probable cause to search that vehicle. On the facts presented we hold that probable cause was not established.
2. Can car stop be done on Anonymous Tip? No- DWI Stop Not Permitted On Anonymous Tip. State v. Golotta App. Div. Police did not have reasonable suspicion of criminal or quasi-criminal activity to stop motor vehicle based solely on a tip from an anonymous caller. Furthermore, due to the very narrow factual focus of the testimony at the suppression motion in the municipal court, the Law Division judge should have remanded the matter to the municipal court rather than enter a judgment of acquittal after it granted defendant's motion to suppress.
3 In drug cases, state sends notice it will rely on lab report in drug case, does lab cert go in if defense attorney files objection? No Lab Tech. Must Testify in Drug Case. State v. Simbara December 16, 2002 Justice Verniero for Unanimous court The state must produce for cross-examination the laboratory employee or analyst who prepared the certificate proffered by the state pursuant to N.J.S.A. 2C:35-19 to establish the nature and quantity of an alleged controlled dangerous substance whenever a defendant timely invokes the right to confront that witness in a challenge to the certificate.
4. If late objection to drug lab cert, does lab cert go into evidence? No Even If Late Objection to Lab Cert. Is Late, Judge Must Hold Evidence Hearing. State in the Interest of C.D. App. Div. Notice here was 2 days late In the case of two juveniles arrested and charged with drug offenses, where the state, pursuant to N.J.S.A. 2C:35-19(c), formally noticed defense counsel of its intent to proffer in evidence lab certificates attesting to the nature and quantity of drugs found, and counsel within ten days verbally noticed the state of its objection and then served a written notice thereof within twelve days; and, where, upon the hearing required by the statute, the judge denied admissibility of the certificates without the testimony of the lab technician who performed the tests, held that (1) the defense's late written notice did not prejudice the state and properly put the state on notice of its objection; (2) N.J.S.A. 2C:35-19 does not itself establish a standard of admissibility of lab certificates; (3) the judge's ruling based upon the fill-in-the-blank form of the certificates was in error; and, (4) the matter would be remanded for a new evidential hearing on the methods, practices and procedures of the lab sufficient under N.J.R.E. 803 (c) (6) or 803 (c) (8) to establish the general reliability and trustworthiness of the tests performed in that lab justifying the admissibility of the certificates.
5. Can police search fanny pack prior to arrest? No- cant Search of Fanny Pack If No Arrest yet. State v. Todd App. Div. We reverse the denial of defendant's motion to suppress the search of a fanny pack he was carrying, which was made after a valid Terry at 3:30 a.m., within minutes of and near the scene of a burglary, in order to enable the police officer to determine that it did not contain weapons prior to transporting defendant in the police car to the burglary scene for a show-up identification. The search was not constitutionally supportable on any basis, including (1) as a search incident to an arrest, because even though the officer had probable cause to arrest defendant, he had not then been arrested and actually was not arrested until considerably later; (2) as a search to prevent immediate harm, inasmuch as the officer did not believe that defendant was armed and dangerous; and (3) as a consent search, inasmuch as defendant was not informed of his right to consent.
6. DWI defendants must be told they can seek their own blood test. What if police don't have a procedure to permit defendant to seek test? Depends- If Police Thwart Independent Test, DWI Breath Test Inadmissible. State v. Greeley App. Div. Denial of motion to suppress results of breathalyzer and conviction for driving while intoxicated are reversed. Police department's refusal to release the defendant except into the custody of a relative or friend or upon demonstration of a return to sobriety effectively nullified the exercise of defendant's right to independent testing under N.J.S.A. 39:4-50.2. The lack of any formal policy regarding release, coupled with the imposition on this defendant of conditions of release the police knew he could not meet and which were not dictated by the objective indicia of insobriety impermissibly thwarted the defendant's ability to exercise the right to testing that he had requested. The right to have an independent blood test or other diagnostic procedure performed following submission to breathalyzer analysis is statutory; however, although N.J.S.A. 39:4-50.2 (c) mandates that the person charged with drunk driving be permitted to have the tests performed and be advised of that right, (d) provides no guidelines and establishes no uniform statewide regulations for the protection of that right; as a result, courts have addressed the issue of the right to independent testing and its protection on a case-by-case basis, focusing on whether an absence of procedures, or restrictive procedures, has thwarted the exercise of right.
7. Can a person drive drunk to escape from getting beaten? Sometimes- Defense of Necessity Permitted In DWI Case. State v. Romano App. Div. The common-law defense of necessity is available to a defendant charged with driving while intoxicated, where defendant was attacked and beaten by several men, sustained severe injuries, and where his car was shaken, kicked, and rocked, and his attackers threatened to kill him. Defendant had no realistic alternative but to violate the DWI statute to escape a brutal and potentially deadly attack. The trial judge erred in perceiving defendant's defense as duress rather than necessity and improperly shifted the burden of proof to defendant. Defendant must come forward with some evidence of the defense, but the state bears the ultimate responsibility to disprove the defense beyond a reasonable doubt. Defendant's DWI conviction is reversed. 8. Can police search a bulge in pants without search warrant or arrest? Yes- Police could search visible bulge. State v. Roach 172 NJ 19 (2002) The totality of the circumstances created an objectively reasonable concern for the officers' safety that justified their seizure of the contents of the bulge from Roach's person.
9. Can police lock up person on Petty disorderly? No- Petty disorderly offense usually does not permit arrest and lock up. State v. Dangerfield 171 NJ 446 (2002) The arrest of Dangerfield for trespassing was not supported by probable cause. The disposition of the Appellate Division is modified insofar as it holds that a petty disorderly persons offense should be treated differently than other offenses regarding the arrest power of police.
10. If no basis to believe defendant armed, can they stop and search? No suspicion that defendant was armed made investigatory stop illegal. State v. Richards 351 NJ Super. 289 (App. Div. 2002) Under the totality of the circumstances, the police officers did not have an articulable and reasonable basis to conclude that the defendant was armed and dangerous to justify the investigatory stop.
11. Is anonymous tip enough for Investigative detention? Probably not- Investigatory detention based on an anonymous tip not sufficient. State v. Rodriguez 172 NJ 117 (2002) Defendant was the subject of an investigative detention and the totality of the circumstances did not justify it.
12. Can police request a consent search on all motor vehicle stops? No- consent search unless suspicion. State v. Pegeese 351 NJ Super. 25 (App. Div. 2002) Where the state troopers requested a vehicle check prior to stopping the car (in which defendant was a passenger) for speeding and, while waiting for the results, it was discovered that neither defendant nor co-defendant had a valid driver's license or any identification, and the registration was in the name of another, the troopers were entitled to question them concerning their recent whereabouts while they waited for the results of the inquiry; however, the matter is remanded to determine whether the troopers had an articulable and reasonable suspicion that defendants were participating in criminal activity when the co-defendant consented to a search of the car, in which CDS were discovered.
13. If both criminal charges and DWI, and client gets into PTI, does the DWI case wait pending PTI conclusion? The County Prosecutor must decide whether to return the DWI to the municipal court, or retain DWI pending completion of the PTI State v. Fulford 349 NJ Super. 183 (App. Div. 2002) The state charged defendant Robert Fulford IV with speeding, drunk driving and an indictable weapons offense. Defendant argued that his constitutional right to a speedy trial was violated because the state did not try the driving charges until after the defendant completed pretrial intervention for the weapons offense. We distinguished State v. Farrell, 320 N.J. Super 425 (App. Div. 1999), and found that the 32-month delay did not violate the defendant's right to a speedy trial. We also pointed out that the prosecutor should have promptly determined whether to retain the drunk-driving charge for prosecution with the indictable offense, or return the charge for trial in municipal court. If the prosecutor elected not to return the charge to municipal court and defendant is about to enter PTI, the timing of the drunk-driving prosecution should be broached when the designated PTI judge is considering postponing proceedings against defendant under R. 3:28.
14. DWI- If less than 10 years between 2nd and 3rd offense, but more than 10 years between 1st and 3rd offense, what number offense? 1st, 2nd, 3rd? If less than 10 years between 2nd and 3rd offense, defendant is 3rd offender. State v. Burroughs 349 NJ Super. 225 (App. Div. 2002) The repeat-offender section of New Jersey's drunk-driving law imposes enhanced penalties with each succeeding conviction. However, if a second offense occurs more than 10 years after the defendant's first offense, he is to be treated as a first offender for sentencing purposes, and if a third offense occurs more than 10 years after the defendant's second offense, he is to be treated as a second offender for sentencing purposes. At issue here is whether the defendant is to be subject to second or third offender treatment where more than 10 years elapsed between his first and second drunk-driving offenses but less than 10 years between his second and third drunk-driving offenses. We hold that the Law Division was correct in requiring that defendant be sentenced as a third offender.
15 If defendant complains to cop that taking breathalyzer in under duress, and cop writes refusal and doesn't read the 2nd warnings on refusal, can a refusal charge stick? No- Refusal reversed where operator did not inform defendant of consequences for refusal. State v. Duffy (App. Div. 2002) Defendant was charged and convicted of refusing to take a breathalyzer test. Defendant replied that he would take the breathalyzer but it's under duress. We hold that the failure of the breathalyzer operator to inform the defendant that he interpreted defendant's response as a refusal, and that unless defendant replied "yes" to taking the test he would be cited for a refusal, to be a fatal defect in the state's case, requiring reversal.
16 The breathalyzer inspection protocol was revised in 1997 Does change in protocol and failure to provide in-house tests keep out breath test certs? No- Breath Test Certs admitted even where protocol revised. State v. Cleverley 348 NJ Super. 455 (App. Div. 2002) A 1997 revision in the state police protocols, providing for the use of an atomizer instead of human breath, in testing breathalyzers, does not affect the admissibility of the Breath Test Inspectors' Inspection Certification to establish the good working order of the breathalyzer. The purpose of the revision is to reduce simulator solution depletion and thus enhance the accuracy and reliability of the testing process. The revision was adopted by the state police in reliance on published studies by a recognized authority on the scientific reliability of the breathalyzer. The revision also accords with manufacturer recommendations and is generally consistent with a protocol adopted by the National Highway Traffic Safety Administration. Thousands of tests using the new procedure have yielded results consistent with the old procedure. The expert testimony produced by defendant was not more than speculation and did not undermine the reliability of the new procedure. The state was not required to produce evidence of in-house testing to verify the reliability of the new procedure for the BTIIC'S to be admissible.
17 If defendant objects to drug lab cert, is pre-trial hearing required for admissibility? Yes, Pre-trial Hearing on Lab Cert required. State v. Miller 170 NJ 417 (2002) Since a defendant cannot, as a matter of constitutional imperative, be assigned any burden of detailing objections to the admission of a lab certificate. N.J.S.A. 2C:35-19c is interpreted to require only that a defendant timely object to the lab certificate and assert that the composition, quality or quantity of the tested substance will be contested at trial, and defendant fully conformed with that notice requirement when he stated that he objected to the certificate's admissibility and that the "composition, quality and quantity of the substance submitted to the laboratory may be inaccurate and may be contested at trial," and suggested that he needed more information about the equipment used in the analysis; the matter is remanded to the trial court for a hearing on the reliability of the methodology underlying the certificate that the trial court admitted without a hearing or the production of the lab employee -- if the court determines that the employee should have been produced, the Appellate Division judgment affirmed defendant's conviction for possession of CDS will be reversed and a new trial ordered, but if the court rules that the report was properly admitted in lieu of testimony, the judgment will be affirmed.
18. After valid stop and request for written consent, is search valid? No-Consent search requires suspicion. State v. Carty 170 NJ 632 (2002) Consent searches during a lawful stop of a motor vehicle are not valid unless there is a reasonable and articulable suspicion to believe that the motorist or passenger has engaged in, or is about to engage in, criminal activity.
19 Are pretextual stops for tinted windows valid? Usually- Police could stop for tinted windows. State v. Cohen 347 NJ Super. 375 (App. Div. 2002) Defendant appealed the Law Division's affirmance of the municipal court's denial of a motion to suppress, which found that a stop of defendant's vehicle was justified based on the officer's reasonable belief that tinted windows constituted a violation of a motor vehicle statute. We affirmed, holding that N.J.S.A. 39:3-74 prohibits the use of tinted windows that fail to meet the applicable standard set forth in N.J.A.C. 13:20-33.7, Thereby overruling State v. Harrison, 236 N.J. Super. 69 (Law Div. 1989), and In re R.M. and J.M., 343 N.J. Super. 153 (Ch. Div. 2001). Further, an automobile stop is proper so long as it is based on a reasonable, articulable suspicion that a violation has occurred, and the officer's belief that the tinted windows represented a significant obstruction was sufficient to implicate the "community caretaking" function. Lastly, N.J.S.A. 39:3-15, which exempts non-resident owners of vehicles registered in other states from complying with New Jersey equipment requirements, does not preclude an officer from conducting an identification check of a noncompliance vehicle.
20 Can police seize drugs seen through a hole in house porch? Police can seize CDS seen through hole. State v. Johnson 170 NJ 385 (2002) The 4-3 decision in State v. Johnson allows the use at trial of crack cocaine seized by police at night from a hole at the base of a support post on a front porch. Writing for the majority, Justice James H. Coleman Jr. said an officer's conduct in seizing a clear plastic bag from the hole was reasonable under the plain-view doctrine.
21 When can search be done on home without warrant? Usually never- Exigent circumstances required prior to warrantless search of home. Kirk v. Louisiana ___ US __ Decided June 24, 2002). Court of Appeals conclusion that warrantless search of a home was constitutional, without deciding whether exigent circumstances were present, violates Us v. Payton doctrine that the firm line at the entrance to the house...may not reasonably be searched without a warrant. ------------------------------------------ New laws- DWI S of L moved to 90 days. P.L. 2002, c.57 Extends time to file complaint for drunk driving from 30 to 90 days.
Increased jail time for repeat offenders who drive while their licenses are revoked On June 24, 2002, Governor McGreevey signed A-1727 into law as P.L. 2002, c.28. The new law provides for progressive jail sentences for persons who continue to drive on the streets and highways of this State after their licenses have been suspended or revoked under certain circumstances. The law specifically provides that persons convicted for a second or subsequent offense of driving while their license is suspended or revoked, and that second or subsequent offense involves a motor vehicle moving violation, shall be imprisoned for ten days longer than the term of imprisonment imposed for the previous offense. The law defines a "motor vehicle moving violation" as any violation of the motor vehicle laws of this State for which motor vehicle points are assessed by the Director of Motor Vehicles. Under the new law, repeat offenders are not be subject to the increased term of imprisonment if the repeat offense involves a non-moving violation, such as a parking offense. P.L. 2002, c.28 (A-1727) ------------------------- 22 If uninsured and injured but not negligent, car insurance law bars driver from bringing PI suit. Can you help them get money? Unconstitutional is Barring Underinsured Person From Bringing Suit For Injuries. Caviglia and Caviglia v. Royal Tours of America et al. (App. Div.). Therefore, you may not need to contest the no insurance ticket N.J.S.A. 39:6A-4.5 bars a cause of action for both economic and non-economic damages by an uninsured injured driver against the tortfeasor. The total preclusion of all opportunity for any recovery was held unconstitutional on both equal protection and due process grounds.
23 Out of state suspension- If NJ driver gets DWI and is suspended in West Virginia, but NJ does not go to suspend for 3 years, has due process been violated? Delay by Another State in Notifying NJ DMV of DWI is Not Grounds to Stop NJ Suspension. [UNREPORTED] Roderick v. N.J. Div. of Motor Vehicles. ___ NJ Super. ___ 05-2-2197 (App. Div. December 3, 2002). The drivers may want to contact their home state to start suspension there. Computers eventually catch up. Although there was a three-year delay in West Virginia's reporting plaintiff's driving-while-intoxicated conviction to New Jersey, defendant Division of Motor Vehicles did not act improperly in immediately suspending plaintiff's driving privileges in New Jersey for 180 days based on his conviction for DWI in West Virginia; inter alia, New Jersey did not cause the delay and acted promptly on being notified of the conviction; and plaintiff himself caused some of the problem by not surrendering his New Jersey license and obtaining a West Virginia license, even though he had relocated to that state. Source: 170 N.J.L.J. 899
24. School Zone Speeding Not Guilty Where No Testimony Children In Area. [UNREPORTED] State v. Bandler. App. Div. The defendant's conviction for speeding in a school zone must be reversed, since the record is wholly lacking of the evidence necessary for finding that defendant violated the statute, to wit, not only that he was speeding in the zone, but that, at the time the defendant did so, it was either during recess, when children were clearly visible from the roadway, or that the violation occurred during the opening or closing hours of school, while children were going to or leaving the area. Source: 170 N.J.L.J. 899
HGN Not Admissible in New Jersey DWI Cases
HGN not admissible in New Jersey DWI cases,
STATE OF NEW JERSEY,
Plaintiff-Respondent, v. ROBERT DORIGUZZI,
Defendant-Appellant. 334 N.J. Super. 530. _____________________________________
Argued September 12, 2000 -- Decided October 20, 2000" Before Judges Pressler, Ciancia and Alley." On appeal from the Superior Court of New Jersey, Law Division, Bergen County." Gerald R. Salerno argued the cause for appellant (Aronsohn Weiner, attorneys; Mr. Salerno, on the brief)." Sean Carpenter, Assistant Prosecutor, argued the cause for respondent (William H. Schmidt, Bergen County Prosecutor, attorney; Mr. Carpenter of counsel and on the brief).
The opinion of the court was delivered by CIANCIA, J.A.D. Defendant Robert Doriguzzi was found guilty of driving under the influence of alcohol, N.J.S.A. 39:4-50. The evidence against him consisted of observations by police officers at the location where defendant's vehicle was stopped and later at the police station. Those observations were based in large part on defendant's responses to field sobriety tests (FST) and a horizontal gaze nystagmus test (HGN). A breathalyzer test was administered but the results were not offered into evidence because the machine was damaged after defendant used it and, therefore, no "after test" of the machine's accuracy could be made. In finding defendant guilty, both the municipal court judge and the Law Division judge relied upon the totality of the evidence, including defendant's alleged failure of the HGN test. The controlling appellate issue is whether the trial courts properly accepted evidence of the HGN test without foundation testimony establishing its general acceptance in the scientific community. The issue is presented because neither this court nor our Supreme Court has yet endorsed HGN testing. A published trial court opinion, decided subsequent to the Law Division's determination in the present case, has held that HGN testing is generally accepted in the relevant scientific community. State v. Maida, 332 N.J. Super. 564 (Law Div. 2000). However, absent a similar determination by this court or our Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly- devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. See generally State v. Harvey, 151 N.J. 117, 166-176 (1997). Here, none of these foundational options were present or discussed in the trial courts. Accordingly, we must decide whether this court should take judicial notice of the general acceptance of HGN testing in the scientific community based upon our independent review of authoritative, scientific and legal writings and those judicial opinions from other jurisdictions that have accepted HGN testing. For the reasons we now set forth, we decline to do so. The underlying facts are as follows. On May 16, 1998, shortly before 1:00 a.m., defendant was driving his vehicle in an erratic manner and was pulled over by Officer Schroeder of the Park Ridge Police Department. Defendant was unable to produce a driver's license and the officer observed that defendant's eyes were "watery and bloodshot." There was a passenger in the vehicle with defendant and an odor of alcohol emanated from the car. In response to the officer's inquiry, defendant admitted having a couple of beers. Defendant was later to admit drinking a beer every half-hour from 7:00 p.m. to midnight at a social function.
A second patrolman, Officer DiBlasi, arrived on the scene and defendant was asked to exit the vehicle so that certain sobriety tests could be performed. Three tests were administered in all. The first was the HGN test administered by Officer Schroeder. It is undisputed that nystagmus is defined as the involuntary jerking of the eye. Schroeder did not testify to the theory behind the test in so many words, but it is generally understood that alcohol use, among other things, will cause nystagmus. Schroeder had been trained to administer the test and was certified in that regard. His training is not seriously questioned on this appeal. Schroeder explained that he first asked defendant if defendant was wearing hard contact lenses or was under a doctor's supervision. Defendant responded in the negative and Schroeder then began the HGN testing. He held his finger about twelve to fifteen inches in front of defendant's eyes and moved his finger side-to-side. Defendant was asked to follow the finger with his eyes without moving his head and he complied. Schroeder described the process:
The first thing I would test would be the left eye for a lack of smooth pursuit. I then tested the right eye for lack of smooth pursuit. I observed the Defendant to have a lack [of] smooth pursuit in both eyes. The second part of the test was to test for nystagmus at maximum deviation. I tested the left eye first and then the right eye and I did observe nystagmus at maximum deviation in both eyes.
The third part is nystagmus prior to 45 degrees. I did not observe nystagmus prior to 45 degrees in either eye. I then concluded that he failed the test because I have observed four points on the horizontal gaze nystagmus test. Based on this test, the officer concluded defendant was under the influence of alcohol.
The second test was a "walk and turn" test, which defendant did not properly perform because he lost his balance and at least once did not "touch heel to toe." The third and last test was the "one-legged stand," which, among other things, requires that the subject keep his arms at his side. In attempting to perform the test, defendant lifted his arms, swayed while trying to balance and put his foot down three times when it was supposed to remain elevated. In Schroeder's opinion defendant was under the influence of alcohol.
Officer DiBlasi's testimony was generally corroborative of Schroeder's. DiBlasi had also been trained and certified in HGN testing. He was able to view defendant's eyes as Schroeder administered the HGN test.
Additional sobriety coordination tests were administered at the police station and defendant's performance was imperfect in a number of ways, although he apparently did somewhat better at that time than he had at the scene of his arrest. For present purposes we need not detail those tests and defendant's efforts to complete them successfully.
At the conclusion of the municipal court testimony, defendant's attorney again objected to admission of the HGN tests because there had been no foundation concerning "what the test is, what's it based upon and what its scientific reliability is, what the principles behind it are . . . . " In rendering his decision, the municipal court judge did not directly respond to defense counsel's concerns, but he said:
He [Schroeder] also performed the -- he also performed the HGN test. Nystagmus means an involuntary jerking of the eyes. Although, nystagmus refers to the involuntary jerking that occurs, that the eye (indiscernible) towards the side. In addition to being involuntary, a person [who] experiences nystagmus ordinarily is unaware of the jerking [that] is happening. (indiscernible) is powerless and cannot be controlled. Albeit not judicially established, the HGN test is the most accurate of all tests. I would expect that at sometime [sic] in the near future, our courts will render opinions setting forth the -- their view of the HGN test. This is not a court that has the authority to -- right in establishing that. However, it is one of the factors that are included. The case is not decided on one part. Based upon the "totality of the circumstances," defendant was found guilty of driving under the influence of alcohol.
At the conclusion of the de novo appeal on the record in the Law Division, the judge again relied upon the totality of the incriminating evidence to find defendant guilty. As to the HGN test, the Law Division judge said:
While there is no written opinion regarding the scientific reliability of the test we know that the courts utilize that testimony on a regular basis. Officers -- and we had two officers testify here, that they were trained in administering those tests. In fact both were able to observe the eye movement of the defendant and each come to a conclusion as to whether or not the defendant failed or passed the test. He went on to indicate his belief that the HGN test was a simple test not really any different from the other coordination tests that were administered. The implication of that statement brings us to the initial problem we must address on appeal.
The State contends that the HGN test is not a scientific test at all but simply an observation made by the officer akin to what is observed when coordination tests are administered. We disagree. Because the record here is virtually devoid of all background information on HGN testing, we have surveyed opinions from other jurisdictions and read a selected number of articles in an effort to garner the necessary information. Most of the relevant decisions are collected in John P. Ludington, Annotation, Horizontal Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 60 A.L.R.4th 1129 (1988).
The vast majority of states that have considered the question have found HGN testing to be scientific. A minority view is that the test is not sufficiently scientific to require expert evidence establishing its acceptance in the scientific community. The test itself has been described similarly by many courts. In a thoughtful and detailed opinion, the intermediate appellate court in Hawaii explained HGN testing as follows:
The HGN test is based on the observation of three different physical manifestations which occur when a person is under the influence of alcohol: (1) the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes; (2) the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and (3) the reported observation that this "jerking" of the eyeball begins before the eye has moved 45 degrees from forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent] or higher.
Scientific Evidence in Civil and Criminal Cases 3.10, at 206 (footnote omitted).
The only equipment needed to administer the HGN test is a stimulus, such as a pen, penlight, or the officer's finger. The stimulus is positioned about twelve to fifteen inches in front of a suspect's eyes. 1984 NHTSA[See footnote 11] Instruction Manual, reprinted in 1 Defense of Drunk Driving 10.99[2], app. at 10-93. As the officer gradually moves the stimulus towards the suspect's ear and out of the suspect's field of vision, the officer observes the suspect's eyeballs to detect three signs of intoxication: an angle of onset of nystagmus (measured from the suspect's nose) of forty-five degrees or less; distinct or pronounced nystagmus at the eye's maximum horizontal deviation; and the inability of the eyes to smoothly pursue the stimulus. Note, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics Journal 383, 384 (1996) (Note, 36 Jurimetrics Journal). The officer scores one point for each sign of intoxication per eye, the maximum score being six points. A person who takes the HGN test and receives a score of four or more points is classified as having a BAC of over 0.10 percent. Id.
[Hawai'i v. Ito, 978 P.2d 191, 197-198 (Haw. Ct. App. 1999) (footnote omitted).] The Hawaii Court of Appeals then went on to catalog the opinions that have decided whether HGN testing is scientific:
A minority of jurisdictions have held that HGN testing is based on a police officer's personal observations of a driver's physical characteristics and is not scientific in nature. These jurisdictions view HGN tests as no different from other FSTs, such as the walk-and-turn or the one-leg-stand, and admit HGN test results into evidence without scientific foundation or expert interpretation. See, e.g., City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1984); State v. Bresson, 51 Ohio St.3d 123, 554 N.E.2d 1330 (1990); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993); Finley v. State, 809 S.W.2d 909 (Tex. App. 1991); Salt Lake City v. Garcia, 912 P.2d 997 (Utah App. 1996), cert. denied, 919 P.2d 1208 (Utah 1996).
A second group of courts have concluded that unlike the walk-and-turn and the one-leg-stand FST's, which are grounded in common knowledge that excessive alcohol can cause coordination, balance, and mental agility problems, HGN testing is based on a scientific principle not generally known by lay jurors. Due to this scientific nature, HGN test results are not admitted by these courts unless expert testimony meeting the criteria set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993); or a pertinent state rule of evidence is adduced to demonstrate the reliability and acceptability of the test. See, e.g., Ex parte Malone v. City of Silverhill, 575 So.2d 106 (Ala. 1990); People v. Leahy, 8 Cal. 4th 587, 34 Cal. Rptr 2d 663, 882 P.2d 321 (1994); State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994); State v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App. 1996), review denied, 686 So.2d 580 (Fla. 1996); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); Commonwealth v. Sands, 424 Mass. 184, 675 N.E.2d 370 (1997); State v. Wheeler, 764 S.W.2d 523 (Mo. Ct. App. 1989); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986); State v. Torres, 127 N.M. 20, 976 P.2d 20 (1999); People v. Heidelmark, 214 A.D.2d 767, 624 N.Y.S.2d 656 (N.Y. App. Div. 1995), appeal denied, 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629 (1995); State v. Helms, 345 N.C. 578, 504 S.E.2d 293 (1998); Yell v. State, 856 P.2d 996 (Okla. Crim. App. 1993); State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995); Commonwealth v. Moore, 430 Pa. Super. 575, 635 A.2d 625 (1993), appeal denied, 540 Pa. 612, 656 A.2d 118 (1995); State v. Murphy, 953 S.W.2d 200 (Ten. 1997); State v. Cissne, 72 Wash. App. 677, 865 P.2d 564 (1994), review denied, 124 Wash.2d 1006, 877 P.2d 1288 (1994); State v. Barker, 179 W. Va. 194, 366 S.E.2d 642 (1988), overruled on other grounds by Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993) (adopting the Daubert standard over the Frye standard). "In effect, these cases require HGN test results to be scientifically validated in each individual case, or at least recognized as scientifically valid once by an appellate court within the jurisdiction." City of Fargo v. McLaughlin, 512 N.W. 2d at 706.
A third group of courts, while agreeing that HGN testing is scientific in nature, have determined, based on a review of relevant case law and scientific publications, that the HGN test is a reliable and accepted indicator of intoxication and, therefore, HGN test results are admissible without further expert testimony as to the scientific validity and reliability of HGN testing, as long as proper foundation as to the techniques used and the police officer's training, experience, and ability to administer the test has been laid. See, e.g., Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998), overruled on other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999) (adopting the Daubert standard over the Frye standard); State ex rel. Hamilton v. City Court, 165 Ariz. 514, 799 P.2d 855 (1990); Zimmerman v. State, 693 A.2d 311 (Del. 1997); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (1996); People v. Buening, 229 Ill. App.3d 538, 170 Ill. Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill. Dec. 806, 602 N.E.2d 460 (1992); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La. Ct. App. 1990), writ denied, 568 So.2d 1077 (La. 1990); State v. Taylor, 694 A.2d 907 (Me. 1997); Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (1995); People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (1996); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988); Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 931, 115 S. Ct. 323, 130 L. Ed.2d 284 (1994). These courts have either taken judicial notice of the validity and reliability of the HGN test or concluded that HGN test results are admissible as scientific evidence as a matter of law.
[Id. at 199-200 (footnotes omitted).]
We are satisfied that the majority view on this question is the view to be adopted in New Jersey. In this jurisdiction a subject matter that is so esoteric that it is beyond the ken of the average person typically qualifies as an appropriate subject for expert testimony. State v. Kelly, 97 N.J. 178, 209 (1984); N.J.R.E. 702. A factfinder should not be allowed to speculate without the assistance of expert testimony in an area where the average person could not be expected to have sufficient knowledge or experience. Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997). Here, nystagmus is a scientific term probably not familiar to most persons. The relationship of nystagmus to the consumption of alcohol or drugs is a scientific principle. The manifestation under different circumstances is also a scientific theory that would not be known by the average person. Accordingly, we find HGN testing to be scientific.
A novel scientific test not previously approved by this court or our Supreme Court, in order to achieve admission into evidence, must meet the test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Although Frye has been replaced in the federal court system in favor of the more lenient standards of Federal Rule of Evidence 702 as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993), in New Jersey, with the exception of toxic tort litigation, Frye remains the standard. Harvey, supra, 151 N.J. at 169-170. The Frye test asks whether the scientific test is generally accepted in the relevant scientific community. That acceptance may be demonstrated as follows:
A proponent of a newly-devised scientific technology can prove its general acceptance in three ways:
(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;
(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and
(3) by judicial opinions that indicate the expert's premises have gained general acceptance.
The burden to "clearly establish" each of these methods is on the proponent.
[Harvey, supra, at 170 (citations omitted).]
As indicated, in the present case no foundation evidence of any sort, beyond the qualifications of Officer Schroeder to administer the test, was presented in the trial courts. This court has the discretion to survey relevant decisions from other jurisdictions as well as pertinent, scientific and legal writings. If we are persuaded to the general acceptance of the test within the scientific community, we can approve the test's admissibility for future trials. Harvey, supra, 151 N.J. at 167-168; State v. Cavallo, 88 N.J. 508, 521 (1982). It is, nevertheless, unusual for an appellate court to rely exclusively on judicial notice. See Ferlise v. Eiler, 202 N.J. Super. 330, 335 (App. Div. 1985) (court unwilling to take judicial notice that thermography enjoyed general acceptance in the medical community absent appropriate record in the trial court). In the present case, a survey of the relevant decisions around the country does not provide us with the level of certainty necessary to approve HGN testing for future cases. We also note that our ability to comprehend the technical writings in this field or the interpretations of them by other scientists is hampered by the very problem that causes our inquiry -- i.e., we are not scientists with technical backgrounds. While it may very well be that HGN testing can meet the Frye test, we believe that the case which decides the issue for all other cases in New Jersey should be grounded in sufficient expert testimony to assure defendants and the State alike that a conviction for driving under the influence, when based in part on HGN testing, is a conviction grounded in reliable scientific data. The consequences of a drunk driving conviction are severe and may include incarceration. Compare State v. Cary, 99 N.J. Super. 323, 333 (Law Div. 1968), aff'd after remand, 56 N.J. 16 (1970) (high degree or reliability needed to admit scientific evidence where the freedom or even the life of an individual is at stake). Our additional reasons for this conservative approach are as follows.
The clear majority of jurisdictions that have considered HGN testing allow its admission into evidence for one or more purposes. Some of those cases have less significance to our present inquiry because they view HGN testing as non-scientific, or they apply evidential tests different from and more generous than the Frye test, or they admit HGN testing only for the limited purpose of establishing probable cause to arrest or perhaps only to corroborate chemical sobriety tests.
The seminal case in favor of admitting HGN test results is State v. Superior Court of the County of Cochise, 718 P.2d 171 (Ariz. 1986). That opinion has been relied upon by every jurisdiction that has accepted HGN testing as meeting the Frye test. We are influenced though by some of the criticism that has subsequently developed of the Arizona decision. Thus, six years after Superior Court,See footnote 22 the Kansas Supreme Court issued what has become the leading opinion against admitting HGN testing without a proper record established in the trial court. We find it appropriate to quote it at length:
Our research indicates that the reaction within the scientific community is mixed. Some articles endorse the HGN testing and its accuracy. See, e.g., Good & Augsburger, Use of Horizonal Gaze Nystagmus as a Part of Roadside Sobriety Testing, 63 Am. J. of Optometry & Physiological Optics, 467 (1986). Other articles discuss concerns with the HGN test. See, e.g., Carper & McCamey, 77 Ill. B.J. at 149; Halperin & Yolton, Is the Driver Drunk? Ocularmotor Sobriety Testing, 57 J. of the Am. Optometric A., 654, 657 (1986). Several commentators disagree with the Arizona Supreme Court's conclusions, insisting the HGN test has not been accepted generally within the scientific community and questioning the methodology of the NHTSA's research. See, e.g., Cowan & Jaffee, Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 Am. Jur. Proof of Facts 3d 459 12 (1990); Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI Journal 1, 3-4 (1987); Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 7, p. 452 (1989); 1 Erwin, Defense of Drunk Driving Cases, " 8A:06, 8A:08 (3d ed. 1992); 2 Nichols, Drinking/Driving Litigation, 26.01 (1991 & 1992 Supp.). These articles or the particular sections cited are not listed in the Arizona opinion's appendices. Most of these articles were published after the Arizona opinion was issued April 7, 1986.
The defendant contends the scientific community does not agree about the correlation between the BAC level and the angle of onset at which nystagmus occurs. The NHTSA declares that "the extent of impairment is indicated by the angle at which nystagmus begins." Officers are instructed to have the suspect move his or her eye sideways to an angle of 45 degrees from the nose and to watch whether nystagmus occurs before the eye reaches the 45-degree angle. 1 984 NHTSA Study at 3-4. "The expected angle of onset for the BAC of 0.10% is 40.2 degrees for the right eye and 40.1 degrees for the left eye." 1 981 NHTSA Study at 25. The NHTSA maintains that, if nystagmus is observed at the 45-degree angle, a BAC of .10 can be estimated correctly 78 percent of the time. 1 981 NHTSA Study at 25- 30. Put another way, 22 percent of the time it is wrong.
Other researchers disagree that 45 degrees is the appropriate angle of onset. According to one authority, 50-60 percent of sober individuals who deviate their eyes more than 40 degrees to the side will exhibit nystagmus, and this nystagmus cannot be distinguished from alcohol gaze nystagmus. Pangman, 2 DWI Journal at 2 (citing Toglia, Electronystagmography: Technical Aspects and Atlas [1976]). Another researcher suggests the threshold appearance of HGN in most individuals is observed at a 40-degree angle with a BAC reading of .06 percent. Pangman, 2 DWI Journal at 2 (citing Aschan, Different Types of Alcohol Nystagmus, Acta Oto- Laryngologica Supp. 140:69 [1957]; Aschan, Bergstedt, Goldberg & Laurell, Positional Nystagmus in Man During and After Alcohol Intoxication, 17 Q.J. of Studies on Alcohol 381 [1956]). Still another researcher contends individuals with a BAC reading of .10 do not exhibit nystagmus until the eye is deviated to a 51-degree angle. Pangman, 2 DWI Journal at 2 (citing Lehti, The Effect of Blood Alcohol Concentration on the Onset of Gaze Nystagmus, 13 Blutalkohol 411 [1976]). See Rouleau, 4 Am. Jur. Proof of Facts 3d 439 " 7, 8; 2 Nichols, Drinking/Driving Litigation 26:01.
Researchers have expressed concern that the 45-degree angle used by the NHTSA will create false positive readings. The NHTSA Study also has been criticized for "deliberately screen[ing] out people at high risk for being classified as false positives." 2 Nichols, Drinking/Driving Litigation 26:01, p. 2.
The NHTSA agrees the angle of lateral deviation is critical. Despite the fact that the NHTSA obtained its research results through the use of mechanical devices that "hold the head in a stable position and precisely measure the angle of lateral deviation of the eye," the NHTSA instructs officers to estimate the 45-degree angle. A visual estimation of the angle would seem to cause inaccurate and inconsistent results. 2 Nichols, Drinking/Driving Litigation 26:01, p. 4. The stability of the suspect's head, another critical factor, is also questionable when the test is conducted at roadside. Pangman, 2 DWI Journal at 3.
In addition to intoxication, many other factors can cause nystagmus.
"Nystagmus can be caused by problems in an individual's inner ear labyrinth. In fact, irrigating the ears with warm or cold water, not a far-fetched scenario under particular weather conditions, is a source of error. Physiological problems such as certain kinds of diseases may also result in gaze nystagmus. Influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff's Syndrome, brain hemorrhage, epilepsy, and other psychogenic disorders all have been shown to cause nystagmus. Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption." Pangman, 2 DWI Journal at 3.
See Rouleau, 4 Am. Jur. Proof of Facts 3d 439 9. Temporary nystagmus can occur when lighting conditions are poor. Rouleau, 4 Am. Jur. Proof of Facts 3d 439 9, p. 456.
An individual's circadian rhythms (biorhythms) can affect nystagmus readings -- the body reacts differently to alcohol at different times of the day. One researcher has suggested that because of this, the angle of onset should be decreased five degrees between midnight and 5 a.m. Rouleau, 4 Am. Jur. Proof of Facts 3d 439 9, p. 456; Pangman, 2 DWI Journal at 3. A number of driving under the influence arrests occur after midnight, which "would seem to indicate that sensitivity of HGN to alcohol is enhanced during the hours of the day when the greatest number of drunk driving arrests occur." Pangman, 2 DWI Journal at 3.
A prosecution-oriented group in California conducted its own research:
"The study measured the correlation of police officer estimations of the angle of onset of nystagmus against chemical tests involving breath and blood samples. The data in the study revealed that there was virtually no correlation between the actual value of blood alcohol concentration and the predicted value based upon the angle of onset of nystagmus. However, a correlation did develop between the breath alcohol reading and the level predicted by the alcohol gaze nystagmus. Interestingly, the study concluded that this was caused by the very subjective nature of the test itself:
Since the police officers are the ones operating the breach testing equipment, it appears that, at least in some of the cases, an already known breath alcohol value may have influenced the determination of the angle of onset.
"Simply put, the cops fudged the horizontal gaze nystagmus determination to correspond with the already known correct answer determined by the breath test result. However, since they did not know what the correct answer was when the blood sample was tested (since someone else did the analysis), they could not come close to the correct BAC. These were highly trained California police officers, experienced and familiar with the test procedures and aware that their results were being scrutinized for accuracy and cross-checked against actual BAC determinations. This study points out the fact that horizontal gaze nystagmus tests should never be intended as a substitute for actual blood or breath alcohol testing. The purpose of the procedure, if any is strictly a field screening function, like other presumptive tests." Pangman, 2 DWI Journal at 3.
The group conceded "the use of '(HGN) to predict a person's blood alcohol level does not appear to be warranted.'" Rouleau, 4 Am. Jur. Proof of Facts 3d 439 8.
If the Arizona Supreme Court had had this evidence before it, it may not have held that HGN evidence satisfies the Frye admissibility requirements. The reliability of the HGN test is not currently a settled proposition in the scientific community. This court holds that HGN evidence requires a Frye foundation for admissibility. If the Frye foundation is established to this court's satisfaction, HGN evidence will be admitted in other cases without the need to satisfy the Frye test each time. Before this court rules on whether HGN evidence satisfies the Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas.
[State v. Witte, 836 P.2d 1110, 1119-1121 (Kan. 1992).] It appears that the Witte decision remains good law in Kansas. Kansas v. Canaan, 964 P.2d 681 (Kan. 1998). HGN testing has not yet achieved general acceptance within the relevant scientific community, at least not in such a manner that would allow the Kansas Supreme Court to take judicial notice. Kansas v. Chastain, 960 P.2d 756 (Kan. 1998). The California Supreme Court also has declined to take judicial notice of various decisions and published studies that have concluded HGN testing meets the Frye test. In People v. Leahy, 882 P.2d 321 (Cal. 1994), the California Court stated: The People urge, however, that we take judicial notice of the various decisions and published studies concluding that HGN testing meets the Frye standard. But the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority. Cissne,[See footnote 33] supra, 865 P.2d at p. 568." Witte, decided in 1992, suggests that if the Arizona Supreme Court in Blake had been aware of the contrary authority and evidence, it might not have held that HGN testing satisfied Frye. (836 P.2d at p. 1121.) The 1994 Cissne decision likewise observed that "[a]s Witte noted, research and articles critical of HGN testing appeared after some jurisdictions concluded that HGN testing satisfied Frye standard[s]." (865 P.2d at p. 568.) Cissne concluded, "[w]e decline the State's invitation to follow those few jurisdictions that have concluded that HGN testing meets the Frye standard. The trial court must evaluate, weigh and consider the conflicting evidence before determining whether the test is novel, and, if it is novel, whether it is reliable . . . . " (Id. at p. 569.)" Additionally, we note that several decisions from other states have refused to resolve the Frye issue on appeal by reference to scientific studies and articles not introduced at the defendant's trial. Although theoretically we could attempt to weigh and evaluate the merits of the conflicting authority, it seems more appropriate to remand this issue to a trial court for an evidentiary hearing, as several other decisions have suggested. " As stated in Witte, "The reliability of the HGN test is not currently a settled proposition in the scientific community. . . . Before this court rules on whether HGN evidence satisfies the Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas." (836 P.2d at p. 1121.) We agree with that analysis and, accordingly, we deny the People's application for judicial notice." [Id. at 334-335 (citations omitted).]" The Illinois case law is also of interest. Many of the decisions around the country cite People v. Buening, 592 N.E.2d 1222 (Ill. App. Ct.), appeal denied, 602 N.E.2d 460 (Ill. 1992), as authority for accepting HGN test evidence because other jurisdictions have found it generally accepted in the scientific community. Buening was decided in the Fifth District of Illinois. In 1997 an intermediate appellate court in the Fourth District declined to follow Buening. People v. Kirk, 681 N.E.2d 1073, (Ill. App. Ct.), appeal denied, 686 N.E.2d 1168 (Ill. 1997). The Kirk decision noted that the Buening opinion relied heavily on the seminal case from Arizona, which Kirk referred to as the Blake decision, as well as other decisions around the country that in turn had relied on Blake. The Kirk court stated: Reliance upon other courts' opinions can be problematic: "Unless the question of general acceptance has been thoroughly and thoughtfully litigated in the previous cases, . . . reliance on judicial practice is a hollow ritual." McCormick 203, at 870 n. 20. For example, McCormick cites Glover v. State, 787 S.W.2d 544 (Tex. App. 1990), as a case where the court held that DNA fingerprinting enjoys general acceptance following a hearing in which defendant produced no expert testimony. In reaching its decision, the Glover court relied upon other cases in which no defense experts were available. McCormick 203, at 870 n. 20. "'[J]udicial notice could become a yellow brick road for judicial acceptance of bogus or at least unvalidated scientific theories or techniques.'" McCormick 203, at 870 n. 20, quoting J. Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 115 F.R.D. 92, 97 (1987). The State's evidence in Blake consisted of four witnesses: one research psychologist and three police officers. The defendant did not present any evidence. The Blake court relied upon its own research of relevant articles. While the Blake defendant "won" the Frye hearing at the trial court level, that decision was reversed by the appellate court. Blake is questionable authority for the proposition that the HGN test meets the Frye standard in Illinois courts." The expert retained by the prosecution in Blake, Dr. Burns, was the individual who conducted the study that led to the NHTSA's adoption of the HGN test. Police departments, in turn, have adopted the NHTSA's recommendations. In Blake, Dr. Burns supported the proposition that the HGN test is accepted and reliable, in part, by relying upon the NHTSA's manual and the fact that the test is used by different police departments. By doing so, however, she in essence referred back to her own conclusions, magnifying the opportunity for error. We do not say that Dr. Burns' conclusions on the subject are flawed, only that the issue has not been fully and thoroughly litigated. The proper place for this litigation is in the trial court, and it was error to admit the HGN test evidence without a proper Frye hearing." [Id. at 1078.] In 1999 the Appellate Court of Illinois, sitting in the Fifth District, again had the opportunity to revisit the HGN question. It chose to follow Kirk rather than Buening. People v. Basler, 710 N.E.2d 431 (Ill. App. Ct.), appeal granted, 720 N.E.2d 1096 (Ill. 1999). ("We agree with Kirk that relying on other courts' opinions to conclude that the HGN test meets the Frye standard may cause problems." Id. at 434). Although the Illinois Supreme Court granted the appeal in Basler, as of this writing it has not issued an opinion. We have set forth these decisions from other jurisdictions at some length, not to demonstrate the unreliability of HGN testing, but only to explain our reluctance to endorse it based upon a survey of other judicial opinions. General acceptance within the relevant scientific community consists of more than just counting up how many cases go in a certain direction. General acceptance is not an end in itself. It is the test used to ascertain whether a sufficient level of reliability has been achieved to allow consideration of the scientific test by the factfinder. See State v. Marcus, 294 N.J. Super. 267, 274-275 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998); State v. Williams, 252 N.J. Super. 369, 374-376 (Law Div. 1991). We emphasize that what is being sought here by the State is admission of HGN testing as an element of proof to permit the factfinder to conclude that failure of the HGN test, in combination with the failure of coordination tests, sufficiently proves defendant's guilt of driving under the influence of alcohol. This is qualitatively different from use of the HGN test only to establish probable cause to arrest or only in conjunction with breathalyzer results. We recognize that if the HGN test results had been introduced into evidence without the support of a scientific-reliability foundation merely to corroborate a breathalyzer reading of .10 or higher, the admission of that evidence would likely have been harmless error because of its lack of capacity to have affected the outcome of the trial. Since such a reading resulting from a properly administered breathalyzer test performed on a properly certified breathalyzer machine is virtually conclusive, the harmless-error conclusion is apparently unavoidable. Here, however, there were no breathalyzer test results admitted into evidence and the HGN test results were an integral part of the decisions finding defendant guilty. We note a recurrent theme in the decisions from other jurisdictions that a jury may be inappropriately influenced by the apparent scientific precision of HGN testing or otherwise fail to properly understand it. In New Jersey juries do not sit on DUI cases, but in this instance the municipal court judge characterized the HGN test as "the most accurate of all tests" and the Law Division judge questioned whether HGN tests were "really any different" than coordination tests. Accordingly, a determination of harmless error is not available to us in the present matter. Defendant's conviction is reversed and the matter is remanded to the Law Division for a trial de novo on the record without consideration of the HGN tests. Footnote: 1 1 NHTSA stands for the National Highway Traffic Safety Administration. It is and has been the most aggressive proponent of HGN testing. Footnote: 2 2 Abbreviated reference to the Arizona case in other decisions is sometimes "Superior Court" and sometimes "Blake." The full caption of the case is State of Arizona v. Superior Court of the State of Arizona in and for the County of Cochise and the Hon. James L. Riley, Division III and Frederick Andrew Blake. Footnote: 3 3 State v. Cissne, 865 P.2d 564 (Wash. Ct. App.), review denied, 877 P.2d 1288 (Wash. 1994).
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STATE OF NEW JERSEY,
Plaintiff-Respondent, v. ROBERT DORIGUZZI,
Defendant-Appellant. 334 N.J. Super. 530. _____________________________________
Argued September 12, 2000 -- Decided October 20, 2000" Before Judges Pressler, Ciancia and Alley." On appeal from the Superior Court of New Jersey, Law Division, Bergen County." Gerald R. Salerno argued the cause for appellant (Aronsohn Weiner, attorneys; Mr. Salerno, on the brief)." Sean Carpenter, Assistant Prosecutor, argued the cause for respondent (William H. Schmidt, Bergen County Prosecutor, attorney; Mr. Carpenter of counsel and on the brief).
The opinion of the court was delivered by CIANCIA, J.A.D. Defendant Robert Doriguzzi was found guilty of driving under the influence of alcohol, N.J.S.A. 39:4-50. The evidence against him consisted of observations by police officers at the location where defendant's vehicle was stopped and later at the police station. Those observations were based in large part on defendant's responses to field sobriety tests (FST) and a horizontal gaze nystagmus test (HGN). A breathalyzer test was administered but the results were not offered into evidence because the machine was damaged after defendant used it and, therefore, no "after test" of the machine's accuracy could be made. In finding defendant guilty, both the municipal court judge and the Law Division judge relied upon the totality of the evidence, including defendant's alleged failure of the HGN test. The controlling appellate issue is whether the trial courts properly accepted evidence of the HGN test without foundation testimony establishing its general acceptance in the scientific community. The issue is presented because neither this court nor our Supreme Court has yet endorsed HGN testing. A published trial court opinion, decided subsequent to the Law Division's determination in the present case, has held that HGN testing is generally accepted in the relevant scientific community. State v. Maida, 332 N.J. Super. 564 (Law Div. 2000). However, absent a similar determination by this court or our Supreme Court, the trial courts in this State are not at liberty to admit evidence of newly- devised scientific technology unless the general acceptance thereof is demonstrated by expert testimony, authoritative scientific and legal writings or judicial opinions. See generally State v. Harvey, 151 N.J. 117, 166-176 (1997). Here, none of these foundational options were present or discussed in the trial courts. Accordingly, we must decide whether this court should take judicial notice of the general acceptance of HGN testing in the scientific community based upon our independent review of authoritative, scientific and legal writings and those judicial opinions from other jurisdictions that have accepted HGN testing. For the reasons we now set forth, we decline to do so. The underlying facts are as follows. On May 16, 1998, shortly before 1:00 a.m., defendant was driving his vehicle in an erratic manner and was pulled over by Officer Schroeder of the Park Ridge Police Department. Defendant was unable to produce a driver's license and the officer observed that defendant's eyes were "watery and bloodshot." There was a passenger in the vehicle with defendant and an odor of alcohol emanated from the car. In response to the officer's inquiry, defendant admitted having a couple of beers. Defendant was later to admit drinking a beer every half-hour from 7:00 p.m. to midnight at a social function.
A second patrolman, Officer DiBlasi, arrived on the scene and defendant was asked to exit the vehicle so that certain sobriety tests could be performed. Three tests were administered in all. The first was the HGN test administered by Officer Schroeder. It is undisputed that nystagmus is defined as the involuntary jerking of the eye. Schroeder did not testify to the theory behind the test in so many words, but it is generally understood that alcohol use, among other things, will cause nystagmus. Schroeder had been trained to administer the test and was certified in that regard. His training is not seriously questioned on this appeal. Schroeder explained that he first asked defendant if defendant was wearing hard contact lenses or was under a doctor's supervision. Defendant responded in the negative and Schroeder then began the HGN testing. He held his finger about twelve to fifteen inches in front of defendant's eyes and moved his finger side-to-side. Defendant was asked to follow the finger with his eyes without moving his head and he complied. Schroeder described the process:
The first thing I would test would be the left eye for a lack of smooth pursuit. I then tested the right eye for lack of smooth pursuit. I observed the Defendant to have a lack [of] smooth pursuit in both eyes. The second part of the test was to test for nystagmus at maximum deviation. I tested the left eye first and then the right eye and I did observe nystagmus at maximum deviation in both eyes.
The third part is nystagmus prior to 45 degrees. I did not observe nystagmus prior to 45 degrees in either eye. I then concluded that he failed the test because I have observed four points on the horizontal gaze nystagmus test. Based on this test, the officer concluded defendant was under the influence of alcohol.
The second test was a "walk and turn" test, which defendant did not properly perform because he lost his balance and at least once did not "touch heel to toe." The third and last test was the "one-legged stand," which, among other things, requires that the subject keep his arms at his side. In attempting to perform the test, defendant lifted his arms, swayed while trying to balance and put his foot down three times when it was supposed to remain elevated. In Schroeder's opinion defendant was under the influence of alcohol.
Officer DiBlasi's testimony was generally corroborative of Schroeder's. DiBlasi had also been trained and certified in HGN testing. He was able to view defendant's eyes as Schroeder administered the HGN test.
Additional sobriety coordination tests were administered at the police station and defendant's performance was imperfect in a number of ways, although he apparently did somewhat better at that time than he had at the scene of his arrest. For present purposes we need not detail those tests and defendant's efforts to complete them successfully.
At the conclusion of the municipal court testimony, defendant's attorney again objected to admission of the HGN tests because there had been no foundation concerning "what the test is, what's it based upon and what its scientific reliability is, what the principles behind it are . . . . " In rendering his decision, the municipal court judge did not directly respond to defense counsel's concerns, but he said:
He [Schroeder] also performed the -- he also performed the HGN test. Nystagmus means an involuntary jerking of the eyes. Although, nystagmus refers to the involuntary jerking that occurs, that the eye (indiscernible) towards the side. In addition to being involuntary, a person [who] experiences nystagmus ordinarily is unaware of the jerking [that] is happening. (indiscernible) is powerless and cannot be controlled. Albeit not judicially established, the HGN test is the most accurate of all tests. I would expect that at sometime [sic] in the near future, our courts will render opinions setting forth the -- their view of the HGN test. This is not a court that has the authority to -- right in establishing that. However, it is one of the factors that are included. The case is not decided on one part. Based upon the "totality of the circumstances," defendant was found guilty of driving under the influence of alcohol.
At the conclusion of the de novo appeal on the record in the Law Division, the judge again relied upon the totality of the incriminating evidence to find defendant guilty. As to the HGN test, the Law Division judge said:
While there is no written opinion regarding the scientific reliability of the test we know that the courts utilize that testimony on a regular basis. Officers -- and we had two officers testify here, that they were trained in administering those tests. In fact both were able to observe the eye movement of the defendant and each come to a conclusion as to whether or not the defendant failed or passed the test. He went on to indicate his belief that the HGN test was a simple test not really any different from the other coordination tests that were administered. The implication of that statement brings us to the initial problem we must address on appeal.
The State contends that the HGN test is not a scientific test at all but simply an observation made by the officer akin to what is observed when coordination tests are administered. We disagree. Because the record here is virtually devoid of all background information on HGN testing, we have surveyed opinions from other jurisdictions and read a selected number of articles in an effort to garner the necessary information. Most of the relevant decisions are collected in John P. Ludington, Annotation, Horizontal Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 60 A.L.R.4th 1129 (1988).
The vast majority of states that have considered the question have found HGN testing to be scientific. A minority view is that the test is not sufficiently scientific to require expert evidence establishing its acceptance in the scientific community. The test itself has been described similarly by many courts. In a thoughtful and detailed opinion, the intermediate appellate court in Hawaii explained HGN testing as follows:
The HGN test is based on the observation of three different physical manifestations which occur when a person is under the influence of alcohol: (1) the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes; (2) the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and (3) the reported observation that this "jerking" of the eyeball begins before the eye has moved 45 degrees from forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent] or higher.
Scientific Evidence in Civil and Criminal Cases 3.10, at 206 (footnote omitted).
The only equipment needed to administer the HGN test is a stimulus, such as a pen, penlight, or the officer's finger. The stimulus is positioned about twelve to fifteen inches in front of a suspect's eyes. 1984 NHTSA[See footnote 11] Instruction Manual, reprinted in 1 Defense of Drunk Driving 10.99[2], app. at 10-93. As the officer gradually moves the stimulus towards the suspect's ear and out of the suspect's field of vision, the officer observes the suspect's eyeballs to detect three signs of intoxication: an angle of onset of nystagmus (measured from the suspect's nose) of forty-five degrees or less; distinct or pronounced nystagmus at the eye's maximum horizontal deviation; and the inability of the eyes to smoothly pursue the stimulus. Note, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics Journal 383, 384 (1996) (Note, 36 Jurimetrics Journal). The officer scores one point for each sign of intoxication per eye, the maximum score being six points. A person who takes the HGN test and receives a score of four or more points is classified as having a BAC of over 0.10 percent. Id.
[Hawai'i v. Ito, 978 P.2d 191, 197-198 (Haw. Ct. App. 1999) (footnote omitted).] The Hawaii Court of Appeals then went on to catalog the opinions that have decided whether HGN testing is scientific:
A minority of jurisdictions have held that HGN testing is based on a police officer's personal observations of a driver's physical characteristics and is not scientific in nature. These jurisdictions view HGN tests as no different from other FSTs, such as the walk-and-turn or the one-leg-stand, and admit HGN test results into evidence without scientific foundation or expert interpretation. See, e.g., City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1984); State v. Bresson, 51 Ohio St.3d 123, 554 N.E.2d 1330 (1990); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993); Finley v. State, 809 S.W.2d 909 (Tex. App. 1991); Salt Lake City v. Garcia, 912 P.2d 997 (Utah App. 1996), cert. denied, 919 P.2d 1208 (Utah 1996).
A second group of courts have concluded that unlike the walk-and-turn and the one-leg-stand FST's, which are grounded in common knowledge that excessive alcohol can cause coordination, balance, and mental agility problems, HGN testing is based on a scientific principle not generally known by lay jurors. Due to this scientific nature, HGN test results are not admitted by these courts unless expert testimony meeting the criteria set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993); or a pertinent state rule of evidence is adduced to demonstrate the reliability and acceptability of the test. See, e.g., Ex parte Malone v. City of Silverhill, 575 So.2d 106 (Ala. 1990); People v. Leahy, 8 Cal. 4th 587, 34 Cal. Rptr 2d 663, 882 P.2d 321 (1994); State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994); State v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App. 1996), review denied, 686 So.2d 580 (Fla. 1996); State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); Commonwealth v. Sands, 424 Mass. 184, 675 N.E.2d 370 (1997); State v. Wheeler, 764 S.W.2d 523 (Mo. Ct. App. 1989); State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986); State v. Torres, 127 N.M. 20, 976 P.2d 20 (1999); People v. Heidelmark, 214 A.D.2d 767, 624 N.Y.S.2d 656 (N.Y. App. Div. 1995), appeal denied, 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629 (1995); State v. Helms, 345 N.C. 578, 504 S.E.2d 293 (1998); Yell v. State, 856 P.2d 996 (Okla. Crim. App. 1993); State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995); Commonwealth v. Moore, 430 Pa. Super. 575, 635 A.2d 625 (1993), appeal denied, 540 Pa. 612, 656 A.2d 118 (1995); State v. Murphy, 953 S.W.2d 200 (Ten. 1997); State v. Cissne, 72 Wash. App. 677, 865 P.2d 564 (1994), review denied, 124 Wash.2d 1006, 877 P.2d 1288 (1994); State v. Barker, 179 W. Va. 194, 366 S.E.2d 642 (1988), overruled on other grounds by Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196 (1993) (adopting the Daubert standard over the Frye standard). "In effect, these cases require HGN test results to be scientifically validated in each individual case, or at least recognized as scientifically valid once by an appellate court within the jurisdiction." City of Fargo v. McLaughlin, 512 N.W. 2d at 706.
A third group of courts, while agreeing that HGN testing is scientific in nature, have determined, based on a review of relevant case law and scientific publications, that the HGN test is a reliable and accepted indicator of intoxication and, therefore, HGN test results are admissible without further expert testimony as to the scientific validity and reliability of HGN testing, as long as proper foundation as to the techniques used and the police officer's training, experience, and ability to administer the test has been laid. See, e.g., Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998), overruled on other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999) (adopting the Daubert standard over the Frye standard); State ex rel. Hamilton v. City Court, 165 Ariz. 514, 799 P.2d 855 (1990); Zimmerman v. State, 693 A.2d 311 (Del. 1997); Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (1996); People v. Buening, 229 Ill. App.3d 538, 170 Ill. Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill. Dec. 806, 602 N.E.2d 460 (1992); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La. Ct. App. 1990), writ denied, 568 So.2d 1077 (La. 1990); State v. Taylor, 694 A.2d 907 (Me. 1997); Schultz v. State, 106 Md. App. 145, 664 A.2d 60 (1995); People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (1996); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988); Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 931, 115 S. Ct. 323, 130 L. Ed.2d 284 (1994). These courts have either taken judicial notice of the validity and reliability of the HGN test or concluded that HGN test results are admissible as scientific evidence as a matter of law.
[Id. at 199-200 (footnotes omitted).]
We are satisfied that the majority view on this question is the view to be adopted in New Jersey. In this jurisdiction a subject matter that is so esoteric that it is beyond the ken of the average person typically qualifies as an appropriate subject for expert testimony. State v. Kelly, 97 N.J. 178, 209 (1984); N.J.R.E. 702. A factfinder should not be allowed to speculate without the assistance of expert testimony in an area where the average person could not be expected to have sufficient knowledge or experience. Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997). Here, nystagmus is a scientific term probably not familiar to most persons. The relationship of nystagmus to the consumption of alcohol or drugs is a scientific principle. The manifestation under different circumstances is also a scientific theory that would not be known by the average person. Accordingly, we find HGN testing to be scientific.
A novel scientific test not previously approved by this court or our Supreme Court, in order to achieve admission into evidence, must meet the test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Although Frye has been replaced in the federal court system in favor of the more lenient standards of Federal Rule of Evidence 702 as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993), in New Jersey, with the exception of toxic tort litigation, Frye remains the standard. Harvey, supra, 151 N.J. at 169-170. The Frye test asks whether the scientific test is generally accepted in the relevant scientific community. That acceptance may be demonstrated as follows:
A proponent of a newly-devised scientific technology can prove its general acceptance in three ways:
(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;
(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and
(3) by judicial opinions that indicate the expert's premises have gained general acceptance.
The burden to "clearly establish" each of these methods is on the proponent.
[Harvey, supra, at 170 (citations omitted).]
As indicated, in the present case no foundation evidence of any sort, beyond the qualifications of Officer Schroeder to administer the test, was presented in the trial courts. This court has the discretion to survey relevant decisions from other jurisdictions as well as pertinent, scientific and legal writings. If we are persuaded to the general acceptance of the test within the scientific community, we can approve the test's admissibility for future trials. Harvey, supra, 151 N.J. at 167-168; State v. Cavallo, 88 N.J. 508, 521 (1982). It is, nevertheless, unusual for an appellate court to rely exclusively on judicial notice. See Ferlise v. Eiler, 202 N.J. Super. 330, 335 (App. Div. 1985) (court unwilling to take judicial notice that thermography enjoyed general acceptance in the medical community absent appropriate record in the trial court). In the present case, a survey of the relevant decisions around the country does not provide us with the level of certainty necessary to approve HGN testing for future cases. We also note that our ability to comprehend the technical writings in this field or the interpretations of them by other scientists is hampered by the very problem that causes our inquiry -- i.e., we are not scientists with technical backgrounds. While it may very well be that HGN testing can meet the Frye test, we believe that the case which decides the issue for all other cases in New Jersey should be grounded in sufficient expert testimony to assure defendants and the State alike that a conviction for driving under the influence, when based in part on HGN testing, is a conviction grounded in reliable scientific data. The consequences of a drunk driving conviction are severe and may include incarceration. Compare State v. Cary, 99 N.J. Super. 323, 333 (Law Div. 1968), aff'd after remand, 56 N.J. 16 (1970) (high degree or reliability needed to admit scientific evidence where the freedom or even the life of an individual is at stake). Our additional reasons for this conservative approach are as follows.
The clear majority of jurisdictions that have considered HGN testing allow its admission into evidence for one or more purposes. Some of those cases have less significance to our present inquiry because they view HGN testing as non-scientific, or they apply evidential tests different from and more generous than the Frye test, or they admit HGN testing only for the limited purpose of establishing probable cause to arrest or perhaps only to corroborate chemical sobriety tests.
The seminal case in favor of admitting HGN test results is State v. Superior Court of the County of Cochise, 718 P.2d 171 (Ariz. 1986). That opinion has been relied upon by every jurisdiction that has accepted HGN testing as meeting the Frye test. We are influenced though by some of the criticism that has subsequently developed of the Arizona decision. Thus, six years after Superior Court,See footnote 22 the Kansas Supreme Court issued what has become the leading opinion against admitting HGN testing without a proper record established in the trial court. We find it appropriate to quote it at length:
Our research indicates that the reaction within the scientific community is mixed. Some articles endorse the HGN testing and its accuracy. See, e.g., Good & Augsburger, Use of Horizonal Gaze Nystagmus as a Part of Roadside Sobriety Testing, 63 Am. J. of Optometry & Physiological Optics, 467 (1986). Other articles discuss concerns with the HGN test. See, e.g., Carper & McCamey, 77 Ill. B.J. at 149; Halperin & Yolton, Is the Driver Drunk? Ocularmotor Sobriety Testing, 57 J. of the Am. Optometric A., 654, 657 (1986). Several commentators disagree with the Arizona Supreme Court's conclusions, insisting the HGN test has not been accepted generally within the scientific community and questioning the methodology of the NHTSA's research. See, e.g., Cowan & Jaffee, Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 Am. Jur. Proof of Facts 3d 459 12 (1990); Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI Journal 1, 3-4 (1987); Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 7, p. 452 (1989); 1 Erwin, Defense of Drunk Driving Cases, " 8A:06, 8A:08 (3d ed. 1992); 2 Nichols, Drinking/Driving Litigation, 26.01 (1991 & 1992 Supp.). These articles or the particular sections cited are not listed in the Arizona opinion's appendices. Most of these articles were published after the Arizona opinion was issued April 7, 1986.
The defendant contends the scientific community does not agree about the correlation between the BAC level and the angle of onset at which nystagmus occurs. The NHTSA declares that "the extent of impairment is indicated by the angle at which nystagmus begins." Officers are instructed to have the suspect move his or her eye sideways to an angle of 45 degrees from the nose and to watch whether nystagmus occurs before the eye reaches the 45-degree angle. 1 984 NHTSA Study at 3-4. "The expected angle of onset for the BAC of 0.10% is 40.2 degrees for the right eye and 40.1 degrees for the left eye." 1 981 NHTSA Study at 25. The NHTSA maintains that, if nystagmus is observed at the 45-degree angle, a BAC of .10 can be estimated correctly 78 percent of the time. 1 981 NHTSA Study at 25- 30. Put another way, 22 percent of the time it is wrong.
Other researchers disagree that 45 degrees is the appropriate angle of onset. According to one authority, 50-60 percent of sober individuals who deviate their eyes more than 40 degrees to the side will exhibit nystagmus, and this nystagmus cannot be distinguished from alcohol gaze nystagmus. Pangman, 2 DWI Journal at 2 (citing Toglia, Electronystagmography: Technical Aspects and Atlas [1976]). Another researcher suggests the threshold appearance of HGN in most individuals is observed at a 40-degree angle with a BAC reading of .06 percent. Pangman, 2 DWI Journal at 2 (citing Aschan, Different Types of Alcohol Nystagmus, Acta Oto- Laryngologica Supp. 140:69 [1957]; Aschan, Bergstedt, Goldberg & Laurell, Positional Nystagmus in Man During and After Alcohol Intoxication, 17 Q.J. of Studies on Alcohol 381 [1956]). Still another researcher contends individuals with a BAC reading of .10 do not exhibit nystagmus until the eye is deviated to a 51-degree angle. Pangman, 2 DWI Journal at 2 (citing Lehti, The Effect of Blood Alcohol Concentration on the Onset of Gaze Nystagmus, 13 Blutalkohol 411 [1976]). See Rouleau, 4 Am. Jur. Proof of Facts 3d 439 " 7, 8; 2 Nichols, Drinking/Driving Litigation 26:01.
Researchers have expressed concern that the 45-degree angle used by the NHTSA will create false positive readings. The NHTSA Study also has been criticized for "deliberately screen[ing] out people at high risk for being classified as false positives." 2 Nichols, Drinking/Driving Litigation 26:01, p. 2.
The NHTSA agrees the angle of lateral deviation is critical. Despite the fact that the NHTSA obtained its research results through the use of mechanical devices that "hold the head in a stable position and precisely measure the angle of lateral deviation of the eye," the NHTSA instructs officers to estimate the 45-degree angle. A visual estimation of the angle would seem to cause inaccurate and inconsistent results. 2 Nichols, Drinking/Driving Litigation 26:01, p. 4. The stability of the suspect's head, another critical factor, is also questionable when the test is conducted at roadside. Pangman, 2 DWI Journal at 3.
In addition to intoxication, many other factors can cause nystagmus.
"Nystagmus can be caused by problems in an individual's inner ear labyrinth. In fact, irrigating the ears with warm or cold water, not a far-fetched scenario under particular weather conditions, is a source of error. Physiological problems such as certain kinds of diseases may also result in gaze nystagmus. Influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff's Syndrome, brain hemorrhage, epilepsy, and other psychogenic disorders all have been shown to cause nystagmus. Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption." Pangman, 2 DWI Journal at 3.
See Rouleau, 4 Am. Jur. Proof of Facts 3d 439 9. Temporary nystagmus can occur when lighting conditions are poor. Rouleau, 4 Am. Jur. Proof of Facts 3d 439 9, p. 456.
An individual's circadian rhythms (biorhythms) can affect nystagmus readings -- the body reacts differently to alcohol at different times of the day. One researcher has suggested that because of this, the angle of onset should be decreased five degrees between midnight and 5 a.m. Rouleau, 4 Am. Jur. Proof of Facts 3d 439 9, p. 456; Pangman, 2 DWI Journal at 3. A number of driving under the influence arrests occur after midnight, which "would seem to indicate that sensitivity of HGN to alcohol is enhanced during the hours of the day when the greatest number of drunk driving arrests occur." Pangman, 2 DWI Journal at 3.
A prosecution-oriented group in California conducted its own research:
"The study measured the correlation of police officer estimations of the angle of onset of nystagmus against chemical tests involving breath and blood samples. The data in the study revealed that there was virtually no correlation between the actual value of blood alcohol concentration and the predicted value based upon the angle of onset of nystagmus. However, a correlation did develop between the breath alcohol reading and the level predicted by the alcohol gaze nystagmus. Interestingly, the study concluded that this was caused by the very subjective nature of the test itself:
Since the police officers are the ones operating the breach testing equipment, it appears that, at least in some of the cases, an already known breath alcohol value may have influenced the determination of the angle of onset.
"Simply put, the cops fudged the horizontal gaze nystagmus determination to correspond with the already known correct answer determined by the breath test result. However, since they did not know what the correct answer was when the blood sample was tested (since someone else did the analysis), they could not come close to the correct BAC. These were highly trained California police officers, experienced and familiar with the test procedures and aware that their results were being scrutinized for accuracy and cross-checked against actual BAC determinations. This study points out the fact that horizontal gaze nystagmus tests should never be intended as a substitute for actual blood or breath alcohol testing. The purpose of the procedure, if any is strictly a field screening function, like other presumptive tests." Pangman, 2 DWI Journal at 3.
The group conceded "the use of '(HGN) to predict a person's blood alcohol level does not appear to be warranted.'" Rouleau, 4 Am. Jur. Proof of Facts 3d 439 8.
If the Arizona Supreme Court had had this evidence before it, it may not have held that HGN evidence satisfies the Frye admissibility requirements. The reliability of the HGN test is not currently a settled proposition in the scientific community. This court holds that HGN evidence requires a Frye foundation for admissibility. If the Frye foundation is established to this court's satisfaction, HGN evidence will be admitted in other cases without the need to satisfy the Frye test each time. Before this court rules on whether HGN evidence satisfies the Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas.
[State v. Witte, 836 P.2d 1110, 1119-1121 (Kan. 1992).] It appears that the Witte decision remains good law in Kansas. Kansas v. Canaan, 964 P.2d 681 (Kan. 1998). HGN testing has not yet achieved general acceptance within the relevant scientific community, at least not in such a manner that would allow the Kansas Supreme Court to take judicial notice. Kansas v. Chastain, 960 P.2d 756 (Kan. 1998). The California Supreme Court also has declined to take judicial notice of various decisions and published studies that have concluded HGN testing meets the Frye test. In People v. Leahy, 882 P.2d 321 (Cal. 1994), the California Court stated: The People urge, however, that we take judicial notice of the various decisions and published studies concluding that HGN testing meets the Frye standard. But the conclusions of those decisions and studies are by no means unchallenged, for there appears to exist substantial opposing authority. Cissne,[See footnote 33] supra, 865 P.2d at p. 568." Witte, decided in 1992, suggests that if the Arizona Supreme Court in Blake had been aware of the contrary authority and evidence, it might not have held that HGN testing satisfied Frye. (836 P.2d at p. 1121.) The 1994 Cissne decision likewise observed that "[a]s Witte noted, research and articles critical of HGN testing appeared after some jurisdictions concluded that HGN testing satisfied Frye standard[s]." (865 P.2d at p. 568.) Cissne concluded, "[w]e decline the State's invitation to follow those few jurisdictions that have concluded that HGN testing meets the Frye standard. The trial court must evaluate, weigh and consider the conflicting evidence before determining whether the test is novel, and, if it is novel, whether it is reliable . . . . " (Id. at p. 569.)" Additionally, we note that several decisions from other states have refused to resolve the Frye issue on appeal by reference to scientific studies and articles not introduced at the defendant's trial. Although theoretically we could attempt to weigh and evaluate the merits of the conflicting authority, it seems more appropriate to remand this issue to a trial court for an evidentiary hearing, as several other decisions have suggested. " As stated in Witte, "The reliability of the HGN test is not currently a settled proposition in the scientific community. . . . Before this court rules on whether HGN evidence satisfies the Frye admissibility requirements, a trial court first should have an opportunity to examine, weigh, and decide disputed facts to determine whether the test is sufficiently reliable to be admissible for any purpose in Kansas." (836 P.2d at p. 1121.) We agree with that analysis and, accordingly, we deny the People's application for judicial notice." [Id. at 334-335 (citations omitted).]" The Illinois case law is also of interest. Many of the decisions around the country cite People v. Buening, 592 N.E.2d 1222 (Ill. App. Ct.), appeal denied, 602 N.E.2d 460 (Ill. 1992), as authority for accepting HGN test evidence because other jurisdictions have found it generally accepted in the scientific community. Buening was decided in the Fifth District of Illinois. In 1997 an intermediate appellate court in the Fourth District declined to follow Buening. People v. Kirk, 681 N.E.2d 1073, (Ill. App. Ct.), appeal denied, 686 N.E.2d 1168 (Ill. 1997). The Kirk decision noted that the Buening opinion relied heavily on the seminal case from Arizona, which Kirk referred to as the Blake decision, as well as other decisions around the country that in turn had relied on Blake. The Kirk court stated: Reliance upon other courts' opinions can be problematic: "Unless the question of general acceptance has been thoroughly and thoughtfully litigated in the previous cases, . . . reliance on judicial practice is a hollow ritual." McCormick 203, at 870 n. 20. For example, McCormick cites Glover v. State, 787 S.W.2d 544 (Tex. App. 1990), as a case where the court held that DNA fingerprinting enjoys general acceptance following a hearing in which defendant produced no expert testimony. In reaching its decision, the Glover court relied upon other cases in which no defense experts were available. McCormick 203, at 870 n. 20. "'[J]udicial notice could become a yellow brick road for judicial acceptance of bogus or at least unvalidated scientific theories or techniques.'" McCormick 203, at 870 n. 20, quoting J. Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 115 F.R.D. 92, 97 (1987). The State's evidence in Blake consisted of four witnesses: one research psychologist and three police officers. The defendant did not present any evidence. The Blake court relied upon its own research of relevant articles. While the Blake defendant "won" the Frye hearing at the trial court level, that decision was reversed by the appellate court. Blake is questionable authority for the proposition that the HGN test meets the Frye standard in Illinois courts." The expert retained by the prosecution in Blake, Dr. Burns, was the individual who conducted the study that led to the NHTSA's adoption of the HGN test. Police departments, in turn, have adopted the NHTSA's recommendations. In Blake, Dr. Burns supported the proposition that the HGN test is accepted and reliable, in part, by relying upon the NHTSA's manual and the fact that the test is used by different police departments. By doing so, however, she in essence referred back to her own conclusions, magnifying the opportunity for error. We do not say that Dr. Burns' conclusions on the subject are flawed, only that the issue has not been fully and thoroughly litigated. The proper place for this litigation is in the trial court, and it was error to admit the HGN test evidence without a proper Frye hearing." [Id. at 1078.] In 1999 the Appellate Court of Illinois, sitting in the Fifth District, again had the opportunity to revisit the HGN question. It chose to follow Kirk rather than Buening. People v. Basler, 710 N.E.2d 431 (Ill. App. Ct.), appeal granted, 720 N.E.2d 1096 (Ill. 1999). ("We agree with Kirk that relying on other courts' opinions to conclude that the HGN test meets the Frye standard may cause problems." Id. at 434). Although the Illinois Supreme Court granted the appeal in Basler, as of this writing it has not issued an opinion. We have set forth these decisions from other jurisdictions at some length, not to demonstrate the unreliability of HGN testing, but only to explain our reluctance to endorse it based upon a survey of other judicial opinions. General acceptance within the relevant scientific community consists of more than just counting up how many cases go in a certain direction. General acceptance is not an end in itself. It is the test used to ascertain whether a sufficient level of reliability has been achieved to allow consideration of the scientific test by the factfinder. See State v. Marcus, 294 N.J. Super. 267, 274-275 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998); State v. Williams, 252 N.J. Super. 369, 374-376 (Law Div. 1991). We emphasize that what is being sought here by the State is admission of HGN testing as an element of proof to permit the factfinder to conclude that failure of the HGN test, in combination with the failure of coordination tests, sufficiently proves defendant's guilt of driving under the influence of alcohol. This is qualitatively different from use of the HGN test only to establish probable cause to arrest or only in conjunction with breathalyzer results. We recognize that if the HGN test results had been introduced into evidence without the support of a scientific-reliability foundation merely to corroborate a breathalyzer reading of .10 or higher, the admission of that evidence would likely have been harmless error because of its lack of capacity to have affected the outcome of the trial. Since such a reading resulting from a properly administered breathalyzer test performed on a properly certified breathalyzer machine is virtually conclusive, the harmless-error conclusion is apparently unavoidable. Here, however, there were no breathalyzer test results admitted into evidence and the HGN test results were an integral part of the decisions finding defendant guilty. We note a recurrent theme in the decisions from other jurisdictions that a jury may be inappropriately influenced by the apparent scientific precision of HGN testing or otherwise fail to properly understand it. In New Jersey juries do not sit on DUI cases, but in this instance the municipal court judge characterized the HGN test as "the most accurate of all tests" and the Law Division judge questioned whether HGN tests were "really any different" than coordination tests. Accordingly, a determination of harmless error is not available to us in the present matter. Defendant's conviction is reversed and the matter is remanded to the Law Division for a trial de novo on the record without consideration of the HGN tests. Footnote: 1 1 NHTSA stands for the National Highway Traffic Safety Administration. It is and has been the most aggressive proponent of HGN testing. Footnote: 2 2 Abbreviated reference to the Arizona case in other decisions is sometimes "Superior Court" and sometimes "Blake." The full caption of the case is State of Arizona v. Superior Court of the State of Arizona in and for the County of Cochise and the Hon. James L. Riley, Division III and Frederick Andrew Blake. Footnote: 3 3 State v. Cissne, 865 P.2d 564 (Wash. Ct. App.), review denied, 877 P.2d 1288 (Wash. 1994).
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DWI Breathalyzer Ampoules in NJ
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with driving commercial vehicle while intoxicated, refusal and on driving while suspended with a CDL.
Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. MVC [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for motor vehicle violations.
When your driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please call us if you need experienced legal representation in a traffic/municipal court matter. Our website KennethVercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
DWI Cases In the Breathalyzer 900 and 900A, chemical ampoules are used in connection with the testing of breath. The New Jersey Breathalyzer machine uses chemical ampoules to conduct the breathalyzer test on suspect drunk drivers. In these cases, if we are the defense attorney, we will make several motions on behalf of our client. Among the motions are:
1. Test Ampoule. If police used a breath testing instrument in this case, Defendant will move to either dismiss the N.J.S. 39:4 50 complaint or exclude evidence of breath test results because the State destroyed material relevant evidence i.e., test ampoules used in Defendant's breath tests contrary to U.S. Const. Amends. V, VI, IX, and XIV, and N.J. Const. Art.l, paras.1, 10, and 21.
2. Exclude Breath Tests. If police used a breath testing instrument in this case, Defendant will move to exclude evidence( of breath test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of breath testing instruments as required by N.J.S. 39:4 50.3, and (b) without such properly prescribed methods and procedures, the State cannot lay the foun dation needed for admission of breath test results into evidence at trial. See Romano v. Kimmelman, 96 N.J. 66, 81 (1984).
3. For each breath testing instrument ["BTI"] or other analytical device ["AD"] used to test substances seized from Defendant:
a) BTI/AD was not approved, b) analysis method was not approved, c) BTI/AD used is scientifically unreliable, d) analysis method was scientifically unreliable, e) BTI/AD components were not properly inspected, f) BTI ampoules did not contain chemicals of proper quality or quantity to give reliable readings, g) BTI/AD was not properly inspected, h) BTI/AD operator was not properly qualified, i) test conditions, such as temperature and atmospheric pressure, at time of analysis and inspection were not proper, j) BTI/AD inspections were not properly periodic or blanked, k) BTI/AD was not properly inspected for RFI, l) Defendant could not have given them m) BTI/AD test records were not properly used, n) BTI ampoules were not properly gauged, o) BTI/AD operation was not proper, and q) analytical tests were not done within a reasonable time of Defendant's alleged motor vehicle operation.
The law entitles drunk driving defendants to pre trial discovery. R.3:13 3; R.7:4 2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500. The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13 ; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus, information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id.
What the State Must Automatically Provide
In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes:
summonses, front and back, drinking driving report ["DDR"], including a check off list of observations and a narrative of investigation, alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] assay report for ampoule chemicals ["assay"], breathalyzer operator certification card ["BOCC"], certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution.
The State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52:
full identification of the instrument used, the date it was first placed in service by the State, the type of instrument used, the manufacturer of the instrument, the model number of the instrument, results of coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, the time of administration of the tests, the result. reports and relevant documents signed by defendant, reports concerning defendant's sobriety, including blood and urine tests. What Else Should be Supplied
The defense has requested, as other discovery, items such as:
ampoules, BTIICs for the 12 months preceding the arrest breath testing instrument inspection procedures, ampoule random sample testing procedures, radio frequency interference testing procedures, FCC licenses for radio frequencies assigned to police radio base.
Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), rev'd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974). In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others:
1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984) 2. The operator was qualified i.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 87 88 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 whether the lot number in the BTIIC's "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police.
Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine Who manufactured the breathalyzer used in the defendant's case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003. If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendant's right to equal protection under the law, and the defendant should at least be given the benefit of the doubt. Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination. Defense counsel must prepare cross-examination prior to court, not during a trial.
Discovery Needed for Cross-Examination About Breathalyzer Inspection
Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification. Do consecutive BTIICs ''bracket" (i.e., are they dated before and after) the date of the defendant's breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense. Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra. Is the breathalyzer's assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable. What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainant's identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendant's right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985). If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all. Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI. What does the certificate of analysis for the simulator solution say anyway? Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate.
Conclusion
It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court DWI cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.
About the Author
Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
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 personal injury matters, Municipal Court trials, matrimonial hearings, and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
http://www.njlaws.com/dwi_breathalyzer_ampoules.html?id=353&a=
Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. MVC [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for motor vehicle violations.
When your driver's license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please call us if you need experienced legal representation in a traffic/municipal court matter. Our website KennethVercammen.com provides information on traffic offenses we can be retained to represent people. Our website also provides details on jail terms for traffic violations and car insurance eligibility points. Car insurance companies increase rates or drop customers based on moving violations.
DWI Cases In the Breathalyzer 900 and 900A, chemical ampoules are used in connection with the testing of breath. The New Jersey Breathalyzer machine uses chemical ampoules to conduct the breathalyzer test on suspect drunk drivers. In these cases, if we are the defense attorney, we will make several motions on behalf of our client. Among the motions are:
1. Test Ampoule. If police used a breath testing instrument in this case, Defendant will move to either dismiss the N.J.S. 39:4 50 complaint or exclude evidence of breath test results because the State destroyed material relevant evidence i.e., test ampoules used in Defendant's breath tests contrary to U.S. Const. Amends. V, VI, IX, and XIV, and N.J. Const. Art.l, paras.1, 10, and 21.
2. Exclude Breath Tests. If police used a breath testing instrument in this case, Defendant will move to exclude evidence( of breath test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of breath testing instruments as required by N.J.S. 39:4 50.3, and (b) without such properly prescribed methods and procedures, the State cannot lay the foun dation needed for admission of breath test results into evidence at trial. See Romano v. Kimmelman, 96 N.J. 66, 81 (1984).
3. For each breath testing instrument ["BTI"] or other analytical device ["AD"] used to test substances seized from Defendant:
a) BTI/AD was not approved, b) analysis method was not approved, c) BTI/AD used is scientifically unreliable, d) analysis method was scientifically unreliable, e) BTI/AD components were not properly inspected, f) BTI ampoules did not contain chemicals of proper quality or quantity to give reliable readings, g) BTI/AD was not properly inspected, h) BTI/AD operator was not properly qualified, i) test conditions, such as temperature and atmospheric pressure, at time of analysis and inspection were not proper, j) BTI/AD inspections were not properly periodic or blanked, k) BTI/AD was not properly inspected for RFI, l) Defendant could not have given them m) BTI/AD test records were not properly used, n) BTI ampoules were not properly gauged, o) BTI/AD operation was not proper, and q) analytical tests were not done within a reasonable time of Defendant's alleged motor vehicle operation.
The law entitles drunk driving defendants to pre trial discovery. R.3:13 3; R.7:4 2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500. The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13 ; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus, information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id.
What the State Must Automatically Provide
In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes:
summonses, front and back, drinking driving report ["DDR"], including a check off list of observations and a narrative of investigation, alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] assay report for ampoule chemicals ["assay"], breathalyzer operator certification card ["BOCC"], certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution.
The State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52:
full identification of the instrument used, the date it was first placed in service by the State, the type of instrument used, the manufacturer of the instrument, the model number of the instrument, results of coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, the time of administration of the tests, the result. reports and relevant documents signed by defendant, reports concerning defendant's sobriety, including blood and urine tests. What Else Should be Supplied
The defense has requested, as other discovery, items such as:
ampoules, BTIICs for the 12 months preceding the arrest breath testing instrument inspection procedures, ampoule random sample testing procedures, radio frequency interference testing procedures, FCC licenses for radio frequencies assigned to police radio base.
Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), rev'd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974). In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others:
1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984) 2. The operator was qualified i.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 87 88 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 whether the lot number in the BTIIC's "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police.
Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine Who manufactured the breathalyzer used in the defendant's case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003. If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendant's right to equal protection under the law, and the defendant should at least be given the benefit of the doubt. Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination. Defense counsel must prepare cross-examination prior to court, not during a trial.
Discovery Needed for Cross-Examination About Breathalyzer Inspection
Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification. Do consecutive BTIICs ''bracket" (i.e., are they dated before and after) the date of the defendant's breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense. Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra. Is the breathalyzer's assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable. What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainant's identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendant's right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985). If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all. Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI. What does the certificate of analysis for the simulator solution say anyway? Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate.
Conclusion
It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court DWI cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.
About the Author
Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
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 personal injury matters, Municipal Court trials, matrimonial hearings, and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
http://www.njlaws.com/dwi_breathalyzer_ampoules.html?id=353&a=
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