DWI Brief in Support of DWI Suppression Motion and Objection to Lab Report

DWI Brief in Support of DWI  Suppression Motion and Objection to Lab Report    

The State must prove probable cause to stop the motorist and take blood samples 

       The US Supreme Court required a warrant before taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013). We submit this also applies to blood & urine cases where consent was not obtained in writing.

Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

Held: The judgment is affirmed.  358 S. W. 3d 65, affirmed.

Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  

(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’ ” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene.  

(b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U. S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically.  

(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.  

Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.

         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 support the defendant’s argument that 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. 163 NJ 294 (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. Iowa   67 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.   The Prosecutor should be required to show ANY blood specimen was obtained in a medically accepted manner and submit a notarized statement

       NJSA  2A: 62A-10 provides details for hospital personnel who withdraw blood for police:  

  

         NJSA  2A: 62A-11.  provided Any person taking a specimen [blood or bodily substance] pursuant to section 1 of this act shall, upon request, furnish to any law enforcement agency a certificate stating that the specimen was taken pursuant to section 1 of this act and in a medically acceptable manner.  The certificate shall be signed under oath before a notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence  of the statements contained therein.

         However, In the landmark decision of Crawford v. Washington. 541 U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination

       The next major case to examine the Crawford  case was State v. Renshaw 390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a certificate signed by a Nurse who drew blood. The Court held that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for cross-examination of the nurse who drew the blood, and over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.

         Another case where the Court Rules that Nurse Can Be Required to Testify in DWI Blood Case. Defendant Can Contest DWI Blood Lab Reports As Hearsay was State v. Kent 391 NJ Super. 352 (App. Div. 2007)

         Defendant was convicted of DWI following a single-car rollover accident, and the Law Division affirmed his conviction.  At the municipal trial, the State placed into evidence, among other proofs, (1) a blood sample certificate pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had extracted blood from defendant and (2) reports from a State Police laboratory that had tested the blood samples.  The authors of those hearsay documents did not appear at trial.

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

-The State has failed to provide all results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div. 1986). The defense should request these documents and if they have not been provided to the defense object to the lab report.   The defense may try to be provided with the operator's manual for all instruments used to test the substances, pursuant to  State v Ford 240 N.J. Super. 44 (App. Div. 1990).

3       THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE

         According to N.J. Practice, Criminal Procedure  by Honorable Leonard Arnold, J.S.C. (West Publishing), Volume 32, Chapter 21, Section 1034, a party seeking to introduce an item of physical evidence must prove that the item was that which was taken from a particular person or place which makes the item relevant as evidence in the trial. Such proof is provided by testimony identifying the item as having been taken from that person or place, and by evidence tracing custody of the item from the time it was taken until it is offered in evidence.  This latter evidence is necessary to avoid any claim of substitution or tampering.  State v. Johnson, 90 N.J. Super. 105, 216 A.2d 397 (App. Div. 1965), aff'd 46 N.J. 289, 216 A.2d 392 (1966).

      The required proof includes:

     1) testimony by an investigator identifying the item as that which the investigator discovered and took; 

     2) testimony by that investigator that there was no tampering with the item while it was in his/her custody; 

     3) testimony regarding delivery of the item to the second person who had custody of the item; 

     4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court. Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include:  testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial.  Arnold, N.J. Practice, Criminal Procedure, Sec. 1034.

         Often the Prosecutor cannot prove the chain of custody.

4   Lab  Evidence IN A DRUG CASE should not BE admitted where there is a Formal written objection to lab Certificate

.           

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (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, 158 L. Ed 2d at 203 (footnote omitted)].

      As accurately summarized by the 2007 Supreme Court Committee on the Rules of Evidence,  “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, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely define “testimonial statements,” but it provided this guidance:  “Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing,  before a grand jury, or at a former trial, and to police interrogations.”  541 U.S. at  68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.

       The US Supreme Court  in 2006 next  had the opportunity to determine hearsay issues when the court had to decide if 911 calls are admissible if the witness will not come to court.

i.        In Davis v. Washington ;126 S. Ct. 2266 (2006) the court held ;911 Calls Sometimes Admissible and Not Hearsay

                   

       Davis v. Washington, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Court elaborated on the meaning of testimonial:

       Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

 [126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.]

       In State v Buda  389 NJ Super. 241 (App. Div. 2006) the Court held that an excited utterance made by a 3 year old child abuse victim to a DYFS worker at a hospital, although admissible under state evidence law, is inadmissible in this case as a result of evolving federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis v. Washington 126 S. Ct. 2266 (2006). Certification to the NJ Supreme Court was also granted  in State v Buda on May 21, 2007.

Caselaw Since 1985

       State v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to Chemist Testimony Required in DWI Blood Case. 

       A lab certificate was admitted in Drug and DWI cases as a business record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E. 803(c)(8). Based on the Crawford decision, the Appellate Division determined that a conviction for driving while intoxicated based on a blood test had to be reversed and remanded for a new trial because the defendant’s right of confrontation was violated by admitting into evidence a lab certificate that attested to his blood alcohol content without giving him the opportunity to cross- examine the chemist who analyzed his blood sample and prepared the certificate. Crawford v. Washington requires state to introduce live testimony by the chemist in blood cases.

         The Court rejected the State's reliance upon the business record or government record exceptions to the hearsay rule to permit the admission of the lab certificate. The rationale for those exceptions is that such a document is likely to be reliable because it was prepared and preserved in the ordinary course of the operation of a business or governmental entity, and not created primarily as evidence for trial. See N.J.R.E. 803(c)(6). See generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at issue is not a record prepared or maintained in the ordinary course of government business; it was prepared specifically in order to prove an element of the crime and offered in lieu of producing the qualified individual who actually performed the test.    Here, defendant not only was denied his constitutional right to confront the certificate's preparer, he was not even afforded an adequate opportunity to challenge the certificate's reliability, because the State failed to provide requested documentation regarding the laboratory analysis of the blood.  The  Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to provide a defendant with all documentation relating to a proffered lab certificate as a condition for admission of that certificate attesting to the identification of a controlled dangerous substance.

                         Certification has been granted in Berezansky

5 Blood test "reports" are hearsay, SHOULD be inadmissible

         Blood test results, documents and papers are writings and thus hearsay. Under the evidence RULE 802. HEARSAY RULE : "Hearsay is not admissible except as provided by these rules or by other law. "  

         Admission of hearsay which is not admissible under any exception or other law and its use as a foundation for a conviction violates a defendant's Sixth Amendment right to confront witnesses against him. State v Long  255 NJ Super. 716, 726 (Law Div. 1993)

        

         RULE 803. HEARSAY EXCEPTIONS NOT DEPENDENT ON DECLARANT'S UNAVAILABILITY

The following written statements are not excluded by the hearsay rule:       

.......   

(6) Records of regularly conducted activity.  [Business Records]

         A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the  writing or other record was made in the regular course of business and it was the regular practice of that  business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

         A good attorney should argue  that there is no proof the writing was made in the ordinary course or business. 

          

(8) Public records, reports, and findings. Subject to Rule 807, (A) a statement contained in a writing made by a public official of an act done by the official or an act, condition, or event observed by the official if it was within the scope of the official's duty either to perform the act reported or to observe the act,  condition, or event reported and to make the written statement

[Source: The Internet- http://www.njlawnet.com/njevidence/]

         An attorney should argue there is no proof that the official actually performed the act. There is no proof the report was part of an official duty.  If the public cannot readily obtain a copy of the results, is it really a public record?

        

RULE 808. EXPERT OPINION INCLUDED IN A HEARSAY STATEMENT ADMISSIBLE UNDER AN EXCEPTION

         Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

         According to Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 808, (Gann)  NJRE 808 codifies principles first set out in State v Matulewicz 101 NJ 27 (1985). As stated by the 1991 Supreme Court Committee Comment, NJRE 808 is intended in general terms all of the specific criteria discussed in Matulewicz.  Before a determination can be made by the trial court, it must hear proofs as to the "Method and circumstances" involved in the preparation of the proffered report. In particular, "proof should be adduced to reflect:

-the relative degrees of objectivity and subjectivity involved in the procedure,

-the regularity with which these analyses are done,

-the routine quality of each analysis,

-the presence of any motive to single out a specific analysis for the purpose of rendering an untrustworthy report, and

-the responsibility of each chemist to make accurate and reliable analyses.

                  Therefore, expert opinions contained in hearsay should not be admissible unless there is actual testimony that all conditions of NJRE 808 and State v Matulewicz are followed.   In a DWI blood case for drug or alcohol influence, the State Police civilian chemists use a gas chromatograph machine. Often there is no evidence that the as chromatograph machine was inspected before or after the testing of the blood. All machines should be inspected on a periodic basis.  For example, in Matulewicz, the expert witness was not produced. The results were too unreliable, too great a chance of a prejudicial finding are police lab's reports which are offered without a right of a defendant to question the police chemist.  NJ Administrative Office of the Court, Bench Book, P1-1-28

RULE 807. DISCRETION OF JUDGE TO EXCLUDE EVIDENCE UNDER CERTAIN EXCEPTIONS

         Except if offered by an accused in a criminal proceeding, when any statement is admissible by reason of Rules 803(c)(8), 803(c)(9), 803(c)(10), 803(c)(11), 803(c)(12), 803(c)(13), 803(c)(14), 803(c)(15), 803(c)(26) or 804(b), the judge may exclude it at the trial if it appears that the proponent's intention to offer the statement in evidence was not made known to the adverse party at such time as to provide that party with a fair opportunity to meet it.

         The defense attorney should object and request the judge to exclude the evidence at trial if the prosecutor did not provide a notice of intent to offer the evidence.

_______________

6  NJ EVIDENCE RULE 506-PATIENT AND PHYSICIAN PRIVILEGE MAY RENDER THE HOSPITAL BLOOD RESULTS CONFIDENTIAL IF NO SUBPOENA OR COURT ORDER

  N.J.S. 2A: 84A-22.2 sets forth the patient- Physician privilege

         State v. Schreiber 122 NJ 579, 586-588; (1991) declared the physician-patient privilege is not applicable where police bring the DWI suspect to the hospital. However, the defense counsel should argue the privilege should continue to apply to other aspects of the hospital and blood work.

         Even after Schreiber, a driver suspected of having an elevated blood alcohol level does not necessarily lose all interest in the confidentiality of his medical records. Where a blood test was taken for diagnostic rather than investigative purposes and where investigation is of death by auto charges or any other crime or disorderly persons offense, the privilege would still apply under the restrictions established by State v. Dyal, 97 N.J. 229 (1984).  Biunno, Current NJ Rules of Evidence, Comment 1 to NJRE 506, (Gann)

     A Hospital blood test was admissible in DWI case of State v. Lutz 309 N.J. Super. 317 (App. Div. 1998) where witnesses from the hospital were produced.  The Defendant in Lutz  contended that the results of his blood test were forensically unreliable and inadmissible.  The Court noted that although there may be differences in the methodology used for tests conducted by law enforcement for "forensic" purposes in comparison to those conducted by a hospital for "diagnostic" purposes, the procedure utilized to test defendant's blood was sufficient to establish the reliability of defendant's test results.  The State was required to produce witnesses who drew blood,  plus witnesses for the chain of custody,  rather than hearsay reports and the state. The Court affirmed the driving-under-the-influence-of-alcohol conviction. A good defense attorney can argue if the State fails to produce the same witnesses as in Lutz, the blood test should be inadmissible in the DWI case.

Other  defense objections-

7- Gas chromatograph results not provided

8- Testimony is objected to from any so-called non-medical drug recognition expert or police office that the defendant was under the influence. There is no reported NJ court case that ever recognized DRE as scientific.

9- If all discovery and gas chromatography results are not provided, defense makes a motion to exclude the all test results under State v Holup  253 NJ Super. 320 (App. Div. 1992)

10- If the state is not prepared to proceed, defense objects to the adjournment and make a record for appeal.  State v. Farrell 320 NJ Super. 425  (App. Div. 1999)

                                                   Respectfully submitted,

                                                   KENNETH   VERCAMMEN