Form 161: Brief in Objection to Blood or Urine Tests

• Library: Criminal Law Forms (ABA) (2013 Ed.)

Form 161: Brief in Objection to Blood or Urine Tests

KENNETH VERCAMMEN
& ASSOCIATES, PC
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
Attorney for defendant

State

v.

___ Defendant.

MUNICIPAL COURT OF ___

BRIEF in Objection to Blood or Urine Tests

1. THE STATE MUST PROVE PROBABLE CAUSE TO STOP THE MOTORIST AND PROBABLE CAUSE TAKE BLOOD OR URINE SAMPLES

Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. State v. Williams, 163 N.J. Super. 352, 356 (App. Div. 1979). New Jersey Courts have held that Article 1, Paragraph 7 of the New Jersey Constitution affords greater protection than the Fourth Amendment. State v. Davis, 104 N.J. 490 (1986), State v. Kirk, 202 N.J. Super. 28, 35 (App. Div. 1985). The burden is on the State to prove an exception to the warrant requirement showing the need for the search. State v. Welsh, 84 N.J. 348, at 352. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. State v. Patino, 83 N.J. 1 (1980).

The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches. Delaware v. Prouse,440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 674 (1979); State v. Patino, 83 N.J. 1 (1980). If there was no indication that motor vehicle laws were violated or that any other laws were violated, police officers will have violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches. To help prepare for the Suppression motion, your Clients may wish to take photos of stop/accident location. Clients may also wish to prepare a diagram of the stop/accident location.

The following recent cases are relevant in a suppression Motion:

Odor of Alcohol Insufficient to Search Car State v. Jones, 326 NJ Super. 234 (App. Div. 1999).

Absent proofs that an open container of alcohol was in plain view, the odor of alcohol, combined with the admission of consumption of one bottle of beer by a motor vehicle operator, is insufficient to establish probable cause to search the vehicle for open containers where a trained police officer testifies that, based upon the circumstances and his experience, occupants often possess open containers of alcohol.

Police cannot Search for Driver Identification in Minor Motor Vehicle Stop State v. Lark 319 NJ Super. 618 (App. Div. 1999), affirmed by NJ Supreme Court. ___ NJ ___ (2000)

Under the federal and state constitutions, following a motor vehicle stop for a minor traffic violation, a police officer may not enter the vehicle to search for proof of the driver's identity even though the driver has failed to produce his driver's license and may have lied about his identity. The officers lacked probable cause to believe a crime had been committed. The dictum in State v. Boykins, 50 N.J. 73 (1967), does not authorize the search.

MV Stop Not Permitted on Community Caretaking State v. Cryan 320 NJ Super. 325 (App. Div. 1999)

A motor vehicle stop may not be based on community caretaking grounds where the officer stopped the defendant because, at 4 a.m., the defendant did not proceed for five seconds after a traffic light turned green.

Legally parked car no grounds for search State in the Interest of A.P.315 NJ Super. 166 (Law Div. 1998)

Here, where the juvenile was a passenger in a legally parked car and the officer who approached him to make a community - care-taking inquiry, as opposed to a lawful stop based on a traffic violation, had no prior knowledge of the juvenile, and there was no criminal activity in the area and no signs of alcohol or a controlled dangerous substance, the juvenile's furtive movements in avoiding eye contact with the officer did not provide a basis for an objective reasonable and articulable suspicion, and the evidence seized (a lighter and a "pipe-like smoking device") must be suppressed; the issue of whether or not the juvenile's statement to the officer that he did not lean forward and down as the officer approached was lie which would justify a suspicion that he might be armed, is subject to ambiguity and interpretation.

Search not permitted for speeding ticket Knowles v. Iowa67 U.S.L.W. 4027 decided December 8, 1998). (Unanimous U.S. Supreme Court decision - Justice Rehnquist).

Since searches incident to traffic citations are not required either to protect an officer's safety or to discover and preserve evidence, there is no justification for an exception to the Fourth Amendment's warrant requirement. Suppression granted.

2. LAB TESTS IN A BLOOD & URINE CASE CAN NOT BE ROUTINELY ADMITTED WHERE THERE IS A FORMAL WRITTEN OBJECTION TO LAB CERTIFICATE

Under N.J.S.A. 2C: 35-19 in a drug case, the defendant through attorney, objects to the entry of a proffered laboratory certificate as evidence at the time of trial. Grounds for objection include:

-The certificate is illegible and has not been certified in accordance with N.J.S.A. 2C: 35-19 (b).

-the certificate fails to establish the type of analysis performed, the subscriber's full training and experience, the nature and condition of the equipment used, or the full conclusions reached by the subscriber.

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 124 S. Ct. at 1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 38-40, 124 S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86. ? The Court held that "admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. In Crawford, the Court's express holding applied only to "testimonial" evidence:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, (footnote omitted)].

The 2007 Supreme Court Committee on the Rules of Evidence summarized the importance of Crawford: "the United States Supreme Court sharply departed from its prior view of how hearsay exceptions could be reconciled with the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." Before Crawford, the Supreme Court had held that hearsay did not offend the Confrontation Clause if the out-of-court statement fell within a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements made by witnesses absent from trial may be "admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 541 U.S. at 59, 124 S. Ct. at 1369. In Crawford, the Court did not precisely define "testimonial statements," but it provided this guidance: "Whatever else the term [testimonial] covers, it...