Form 162: Motion to Bar Alcotest Results

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

Form 162: Motion to Bar Alcotest Results

KENNETH VERCAMMEN
& ASSOCIATES, PC
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
Attorney for Defendant, d1

STATE OF NEW JERSEY

vs

d1 Defendant

MUNICIPAL COURT OF __________

SUMMONS NO.
Offense: DWI
Motion to bar Alcotest results Based on Police Failure to comply with NJ Attorney General Guideline on DWI /Refusal to give the defendant a copy of the Alcohol Influence Report upon arrest

PLEASE TAKE NOTICE that on __________ or as soon thereafter as counsel may be heard, the undersigned, counsel for the defendant d1, will move before the above court, for an order to Dismiss DWI Summons Based on Police Failure to comply with NJ Attorney General Guideline on DWI and Refusal.

Dated: __________

BY: KENNETH A. VERCAMMEN, ESQ.

Brief to Dismiss DWI Summons Based on Police Failure to comply with NJ Attorney General Guideline on DWI /Refusal to give the defendant a copy of the Alcohol Influence Report upon arrest

The mandatory guidelines established by our Attorney General were not followed in this case. The "ATTORNEY GENERAL GUIDELINE: PROSECUTION OF DWI & REFUSAL VIOLATIONS" of January 24, 2005 requires the arresting police officer to give the defendant a copy of the Alcohol Influence Report. The police violated this new AG Guideline.

The Attorney General issued the following Guideline to all Prosecutors and Police on January 24, 2005:

TO: ALL COUNTY PROSECUTORS
ALL MUNICIPAL PROSECUTORS
FROM: PETER C. HARVEY, ATTORNEY GENERAL
SUBJECT: ATTORNEY GENERAL GUIDELINE:
PROSECUTION OF DWI & REFUSAL VIOLATIONS
DATE: January 24, 2005

Section 3 of P.L. 2004, chapter 8, 1 included a provision that the Attorney General shall promulgate guidelines concerning the prosecution of DWI and DWI refusal violations. The Legislative purpose for these Guidelines is "to promote the uniform enforcement of [the DWI and refusal statutes.]"

Therefore, pursuant to P.L. 2004, c.8, §3, and the authority granted to the Attorney General of the State of New Jersey by the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., and N.J.S.A. 2B:12-27, the following Guidelines are issued to All County and Municipal Prosecutors for the Prosecution of DWI and Refusal Violations.

These Guidelines replace all previously issued memoranda from the Division of Criminal Justice or the Attorney General, regarding the Standard (Refusal) Statements for DWI refusal, CDL/DWI refusal and OVWI refusal. Please inform all of the police departments and law enforcement agencies in your county.

These Guidelines do not, however, replace or rescind any Attorney General Law Enforcement Directives issued regarding DWI or DWI related subjects. E.g., Attorney General........

On page 20 of the Attorney General Guideline, the defendant shall be given a copy of the Alcohol Influence Report. The police violated the Attorney General Guideline, and failed to provide the defendant, after processing, with the Alcohol Influence Report.

Guideline- Page 19:

Fulfilling the Statutory Requirements for Implied Consent by Law Enforcement

While at the law enforcement facility, the defendant should also be continuously observed. In addition, during the observation period, and prior to the administration of any chemical breath testing, the provisions of N.J.S.A. 39:4-50.2, N.J.S.A. 39:3-10.24a through e, or N.J.S.A. 12:7-55, regarding implied consent, must have been followed.

Those statutory provisions are:

#1 The police or law enforcement officer "shall inform the person tested of his[/her] rights" to be furnished with a copy of the record of any chemical breath tests administered. [This was not done in this case.]

This first provision is designed to inform the defendant that a record of any chemical breath tests administered will be made and that the defendant is entitled to receive a copy of that record. N.J.S.A. 39:4-50.2(b); N.J.S.A. 39:3-10.24b; N.J.S.A. 12:7-55b. That record, pursuant to N.J.A.C. 13:51-3.6(a)2, is the "Alcohol Influence Report Form, Breathalyzer Check List." N.J.A.C. 13:51 Appendix. With the introduction of the Alcotest(r) 7110 MKIII-C, a printed record, in the form of an Alcohol Influence Report, will be automatically printed by the...

Guideline- Page 20:

Alcotest(r) 7110 MKIII-C. N.J.A.C. 13:51-3.6(c)2.

Following the administration of any breath tests, regardless of the results obtained, and the normal processing of a defendant, the defendant should be given a copy of the Alcohol Influence Report.

#2 The person "shall be permitted to have such samples taken and chemical tests of his[/her] breath, urine or blood made by a person or physician of his own selection."

This second provision is designed to inform the defendant of his/her statutory right to obtain an independent test of their own breath, blood or urine. N.J.S.A. 39:4-50.2(c); N.J.S.A. 39:3-10.24c; N.J.S.A. 12:7-55c. State v. Jalkiewicz, 303 N.J. Super. 430, 432, 434, 435 (App. Div. 1997), questioning State v. Broadley, 281 N.J. Super. 230 (Law Div. 1992), certif. den. 135 N.J. 468 (1994); State v. Hicks, 228 N.J. Super. 541, 544 (App. Div. 1988), certif. den. 127 N.J. 324 (1990); State v. Ettore, 228 N.J. Super. at 30-1.

Guideline- Page 18: The need to obtain chemical breath test evidence, in a prompt manner, due to the speed with which alcohol is dissipated by the body is also discussed.

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