Brief in Support of Suppression Motion and Objection to Lab Report http://www.njlaws.com/handling_dwi_blood.htm
By Kenneth Vercammen, Author ABA Criminal Law Forms
THE STATE MUST PROVE PROBABLE CAUSE TO STOP THE MOTORIST AND TAKE BLOOD 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.
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. provides 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.
A good defense attorney should argue that if a certificate is not signed in front of a notary, the blood results should be inadmissible.
3 THE STATE MUST PROVE CHAIN OF CUSTODY IN A CRIMINAL OR BLOOD CASE
4. LAB EVIDENCE IN A DRUG CASE SHOULD NOT BE ADMITTED WHERE THERE IS A FORMAL WRITTEN OBJECTION TO LAB CERTIFICATE
The Crawford decision and State v Berezansky bar blood lab reports as hearsay when proper objection is made
5 BLOOD TEST "REPORTS" ARE HEARSAY, WHICH MAY BE INADMISSIBLE
6 NJ EVIDENCE RULE 506-PATIENT AND PHYSICIAN PRIVILEGE MAY RENDER THE HOSPITAL BLOOD RESULTS CONFIDENTIAL IF NO SUBPOENA OR COURT ORDER
7- Gas chromatagraph 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)