New Jersey Blood Alcohol Testing Equipment

Published by New Jersey DUI Lawyer, Jeffery Hark
http://www.harklawnj.com/new-jersey-dwi-lawyer/

The equipment used to test drivers for their alcohol level at the 561 police stations around the state of New Jersey, the Alcotest, is to be replaced according to the  state attorney general says in court papers.  Why, after so much controversy??? Because the machine’s manufacturer, Draeger Safety Diagnostics of Irving, Texas, will warranty it for only three more years, a replacement technology will have to be put in place by 2016.  In the meantime, the Attorney General’s Office has asked the Supreme Court to relax the controls on Alcotest that it set down in State v. Chun, 194 N.J. 54 (2008), the seminal ruling that found the device scientifically reliable as evidence in DWI cases.

That would allow the state to devote its resources to finding a new machine.  The state’s disclosure that Alcotest is approaching its “sunset” came after two defense lawyers filed a March 15 motion in aid of litigants’ rights claiming the online database of Alcotest readings, required to be maintained under Chun, is faulty and incomplete.  They also take issue with the state’s fees for use of the database, which range from $5 to 60 depending on number of reports requested and the attorneys have ask the court to order the state to implement a series of revisions to the Alcotest software that were mandated by Chun.

Robyn Mitchell, Deputy Attorney General, concedes that numerous discrepancies exist between the numbers in the online database and the raw data, citing the database’s filtering out of exceptional files. Mitchell describes in detail the technical difficulties the state had in creating the online database.  Mitchell says the state's decision to retire Alcotest comes after it was unable to work with Draeger Safety to make programming revisions that would facilitiate uploading of data from machines in police departments around the state to a centralized database as mandated in Chun.

Draeger hired a software developer, Ayoka Systems, to work on that job. Draeger advised the state in November 2012 that it was not willing to continue employing Ayoka, according to Mitchell. Draeger wanted the state to retain Ayoka or another software company directly, or do the work in-house. But the state lacked the resources to do the work itself and said it would have to put the work out to bid, which would cause a delay of six to nine months.

"In light of Draeger's decision to stop supporting the existing Alcotest 7110 instruments at the end of 2016 and the state's lack of a direct business relationship with Ayoka, the time that it would take [to make the necessary software changes] will likely be comparable to the time it would take to implement a new breath testing program," Mitchell says. "Given that the Alcotest 7110 will become obsolete at the end of 2016, it makes more sense for the state to focus its attention and resources on replacing the Alcotest 7110."

As a result by 2016 the State of New Jersey will be attempting to implement a new breath testing system to replace the Alcotest system that it fought so hard to have implemented only a few years ago.  The Alcotester replaced the 1950 era breathalyzer which was used for over 40 years in New Jersey to convict drivers of DWI and DUI.

State v. DeSantis - Issue Statute of Limitations for Distribution of Illegal Illegal Porn Videos In NJ For a Sex Crimes Prosecution

The New Jersey Appellate Division has reiterated  that the statute of limitations for the prosecutions of distributions of illegal pornography commences on the date the defendant actually distributed same, not the date of the age of the minors or the date the photos were taken.  The child pornography statute specifically reads that the time to prosecute expires, if a victim is below the age of eighteen at the time of the offense, to either five years after the victim attains the age of eighteen or two years after the victim discovers the offense, whichever is later.  In State v. DeSantis, App. Div.  Defendant was indicted and charged with four counts of second-degree endangering the welfare of a child (distribution of child pornography) and fourth-degree endangering the welfare of a child (possession of child pornography). Defendant contends that the trial judge erred by not granting his motion to dismiss the indictment as barred by the statute of limitations period. The appellate panel disagrees. If a victim is below the age of eighteen at the time of the offense, the limitation period expands to either five years after the victim attains the age of eighteen or two years after the victim discovers the offense, whichever is later. Here, the limitations period is five years. The photographs were many years old. The panel does not accept defendant's reading into the statute a limitation provision of two years after discovery by law enforcement officers of the offense. Nor does the panel interpret the statute to measure the limitation period on the age of the actual unknown children depicted.

 

Submitted by Child Pornography Defense Attorney, Jeffrey Hark

         

Capers v. Governor of New Jersey, Third Cir. (per curiam) (8 pp.)

FEDERAL COURT CRIMINAL LAW — CORRECTIONS

Capers v. Governor of New Jersey, Third Cir. (per curiam) (8 pp.)

 

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

The 3^RD CIRCUIT HAS affirmed the trial court’s dismissal of a  CRIMINAL DEFENDANT’S TRANSFER TO THE Adult Diagnostic and Treatment Center. 

Plaintiff, a state prison inmate, appeals the District Court's dismissal of his complaint asserting violations of his civil rights arising out of his incarceration at the Adult Diagnostic and Treatment Center. The court affirms the dismissal of his claims regarding the posting of his name on the sex offender registry, his transfer to the ADTC, and the denial of his request to be transferred out of the ADTC as barred by the applicable statute of limitations. The dismissal of his Eighth amendment claims of inadequate medical treatment is affirmed because, inter alia, he failed to allege that anyone at the ADTC acted with deliberate indifference to his medical needs. The dismissal of his Fifth Amendment self-incrimination claim is affirmed in part and reversed in part because his allegation that he has lost work credits and special privileges for failing to participate in treatment does not rise to the requisite level of compulsion to state a claim for a Fifth Amendment violation and, to the extent that Capers is seeking damages for already-lost commutation time due to his refusal to participate in treatment, his § 1983 claim is barred by the favorable-termination rule of Heck v. Humphrey, but  to the extent that he seeks an injunction to prevent future losses of commutation time, he might be able to proceed and his complaint provides adequate notice of his claim. [Filed May 7, 2013]  The message to take from this decision, again, based on the long line of cases involving civil commitment and sex offender registry, is that once the defendant pleads guilty and or is found guilty, the court’s imposition of the Megan’s Law’s requirements will not be disturbed by any appellate court and the defendant’s efforts will be denied.

 

Timothy Seidel Denied Bail Reduction in Case Involving Death of Millville Police Officer

Submitted by Jeffrey Hark of the Hark and Hark Law Offices

BRIDGETON — Timothy Seidel, the Commercial Township man charged in connection with the death of Patrolman Christopher Reeves, was denied a reduction in his bail Friday at the Cumberland County Courthouse.

Seidel, 24, of Laurel Lake was indicted on May 8, by a Cumberland County grand jury on two counts of aggravated manslaughter— one, "by fleeing or attempting to elude law, did cause the death of Reeves" and two, "recklessly under circumstances manifesting extreme indifference to human life did cause the death," according to the Cumberland County Prosecutor's Office.

The accident, which occurred early on July 8, 2012, left Patrolman Christopher Reeves, an eight-year veteran of the Millville police department, dead after Timothy Seidel's vehicle collided into Reeves' police cruiser at the intersection of 3rd and Broad streets, killing Reeves on impact.

The accident also left Reeves' partner, Johnathan Seidel (no relation to the accused) with serious injuries.

Assistant Prosecutor Mike Ostrowski's recommended that Seidel's bail not be reduced — which currently stands at $400,000.

Cumberland County Superior Court Judge Darrell Fineman denied Seidel's request for bail to be reduced.

The prosecution also introduced new findings by the State Police Fatal Accident Unit that Seidel was driving 70 mph at the time of impact with Reeves' vehicle. The prosecution also obtained that Seidel's blood alcohol content was .16 at the time of the incident.

Jeffrey Hark of the Cherry Hill firm Hark & Hark represented Seidel.

Seidel remains at the Cumberland County Jail on $400,000 bail cash or bond.

The next hearing is a status conference scheduled for July 22.

As a result of new findings, Ostrowski believes the case against Seidel has become stronger.

---

Originally posted by NJ.com staff writer Spencer Kent

Divided Court Strikes Down Law on Drunk Driving Blood Tests

Tony Mauro

The National Law Journal

04-17-2013

 Posted by New Jersey DWI Lawyer, Jeffrey Hark

A divided Supreme Court on Wednesday struck down a Missouri law that allowed police routinely to force drunk-driving suspects to give blood samples without a warrant and without consent.

A 5-4 majority agreed that the inevitable dissipation of alcohol from a suspect's blood could not be regarded per se as an exigency that would justify a blood draw without a warrant under the Fourth Amendment.

Over the years, the court has endorsed exceptions to the warrant requirement of the Fourth Amendment, including when destruction of evidence is imminent and police cannot wait for a warrant. The issue before the court was whether the natural dissipation of alcohol in blood was the kind of phenomenon that always justified proceeding without a warrant.

Justice Sonia Sotomayor, writing for the majority, said no. But she cautioned that exigent circumstances still "may arise" that would allow drawing blood without a warrant, case by case. The court said that with advances in technology and procedures that allow police to obtain warrants quickly, police are not usually hampered by the need for warrants as they combat drunk driving. Most states, she said, now allow prosecutors to obtain warrants by phone, email or teleconferencing.

Chief Justice John Roberts Jr., writing for himself and Justices Samuel Alito and Stephen Breyer in a partial concurrence and dissent, chastised the majority for failing to give clear guidance on what the new rule is. "A police officer reading this Court's opinion would have no idea – no idea – what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer." These justices did agree, however, that warrants should be sought when possible.

In a separate concurrence, Justice Anthony Kennedy expressed the hope that "in due course may find it appropriate and necessary consider a case permitting it to provide more guidance than it undertakes to give today."

Justice Clarence Thomas was the only court member who said that a per se exigency rule was appropriate, because the natural dissipation of alcohol in the blood in effect results in "rapid destruction of evidence." Thomas wrote, "Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated."

The ruling was a victory for the American Civil Liberties Union and its longtime legal director Stephen Shapiro, who argued for his first time at the high court on behalf of defendant Tyler McNeely. "We know from experience that drunk-driving laws can be strictly enforced without abandoning constitutional rights," Shapiro said in a statement. "Today's decision appropriately recognizes what half the states have already demonstrated – that maintaining highway safety does not require sacrificing personal privacy."

When a Missouri police officer stopped McNeely for speeding and weaving across the road, he refused to take a breath test. The officer then took McNeely to a hospital for a blood test. McNeely refused again, despite a warning that such a refusal automatically resulted in revocation of his driver's license The blood sample was taken anyway, revealing an elevated blood alcohol content level. At trial, he sought to suppress the blood results on Fourth Amendment grounds. The trial court agreed that the case did not present circumstances that would have made it impossible to obtain a warrant. The Missouri Supreme Court agreed that dissipation of blood alcohol was not, by itself, enough to justify a warrantless search.

Criminal Law — Drunk Driving

Published by New Jersey DWI Attorney, Jeffrey Hark.

http://www.harklawnj.com/new-jersey-dwi-lawyer/

 

14-2-9400 State v. Choi, App. Div. (per curiam) (13 pp.) Defendant, who was arrested for a variety of traffic offenses and pled guilty to driving while intoxicated, appeals the denial of his motion to suppress the evidence of his refusal to submit to a breath test, claiming that significant portions of the Korean translation of the standard statement, N.J.S.A. 39:4-50.2(e), were incorrect and incomprehensible. The panel affirms, finding that the record supports the findings that defendant spoke English well enough to understand the standard statement in English, that he understood his unconditional obligation to give a breath sample, but he knowingly declined to give the sample, and that it was therefore unnecessary to determine the adequacy of the Korean translation of the standard statement (which was subsequently revised).

 

Drug Evidence found in the Warrantless Search

State v. Walker, A-49-11.

Posted by drig crime defense pawyer, Jeffrey Hark. http://www.harklawnj.com/

Smoking pot while answering one's front door, then tossing the evidence when seeing it's the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says. The justices reversed an Appellate Division ruling that suppressed drug evidence found in the warrantless search in State v. Walker, A-49-11.

They stressed it was the defendant's own guilty behavior that gave the police authority.
"We do not suggest that, had no one come to the door, the mere smell of marijuana would have justified a forced entry into defendant's home," the court said.

Two Newark policemen came to Rashad Walker's Riverview Court apartment, part of a public housing complex, on a tip from a confidential informant that he was selling drugs. They could smell marijuana smoke. One officer was dressed in plain clothes in order to attempt to make a purchase. When Walker opened the door and saw the second officer's badge, he threw the joint into his living room and attempted to shut the door. The officers gained entry. In plain view, they found 22.4 grams of marijuana, 27 packets of heroin, 4.2 grams of cocaine, a scale and a razor.

After Essex County Superior Court Judge Stephen Bernstein denied his motion to suppress, Walker pleaded guilty to multiple drug offenses but preserved his right to appeal the motion denial. The Appellate Division reversed.At the Supreme Court, the state relied heavily on the reliability of the informant, who had provided valuable tips on at least 10 prior occasions.

The court said that was not enough to justify a warrantless search, but Walker's actions were.
"Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment," wrote Judge Ariel Rodriguez for the court.

"Clearly, defendant must have been aware that the officers knew he was committing an offense," Rodriguez said. And once he threw the joint back into the living room and tried to shut the door, the officers "were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers."

Judge Mary Catherine Cuff did not participate in the otherwise unanimous decision.
Assistant Deputy Public Defender Amira Scurato, Walker's attorney on the appeal, says the ruling, being limited to its facts, "doesn't change the overall landscape regarding privacy in one's own house," she says.

Officials from the Division of Criminal Justice did not return a reporter's call