Form 41: Objections to Blood Report

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

Form 41: Objections to Blood Report

KKENNETH VERCAMMEN & ASSOCIATES, PCATTORNEY AT LAW2053 Woodbridge Ave.Edison, NJ 08817(Phone) 732-572-0500(Fax) 732-572-0030

website: www.njlaws.com

D

PROSECUTOR
c/o MUNICIPAL COURT
80 One Mile Rd.
East Windsor, NJ 08520

Municipal Court Judge
MUNICIPAL COURT
80 One Mile Rd.
East Windsor, NJ 08520

RE: State v
D/O
Summons:
Offense: DWI,
Objections to Blood report

Dear Judge and Prosecutor:

Please accept this letter brief in support of defendant's motions.

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

Automobiles are areas of privacy protected by the Fourth Amendment of the United States Constitution. Statev.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. Statev.Davis, 104 N.J. 490 (1986), Statev.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. Statev.Welsh, 84 N.J. 348, at 352. Understandable, professional curiosity is not sufficient justification for an intrusion on a constitutionally protected automobile. Statev.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. Delawarev.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, 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 useful to if arguing a stop was improper:

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.

Auto Exception to Search Applicable only if Exigent Circumstances State v. Santiago 319 NJ Super. 632 (App. Div. 1999).

The "automobile exception" justifies a police search of an automobile without a warrant only if there are exigent circumstances that render it "impracticable" to first obtain a warrant. When police have possession of a parcel and have it turned over to defendant by a "controlled delivery," police cannot later search defendant's automobile and the parcel without a warrant, since it was not impracticable to have first obtained a search warrant, and whatever "exigency" may have existed was created by the police themselves.

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...