Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
2053 Woodbridge Avenue - Edison, NJ 08817

Friday, June 26, 2009

Brief to Dismiss DWI Summons Based on Police Failure to Comply with NJ Attorney General Guideline on DWI and Refusal

Brief to Dismiss DWI Summons Based on Police Failure to Comply with NJ Attorney General Guideline on DWI and Refusal

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:


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® 7110 MKIII-C, a printed record, in the form of an Alcohol Influence Report, will be automatically printed by the...

Guideline- Page 20:
Alcotest® 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.

Guideline- Page 19: Breath samples are a nontestimonial form of evidence. State v. Macuk, 57 N.J. 1, 14 (1970). Accordingly, a defendant does not have a Fifth Amendment right to consult with an attorney before taking the test, nor does a defendant have a right to have an attorney present when the test is performed. State v. Leavitt, 107 N.J. 534, 536, 540 (1987); see also, Macuk, supra, 57 N.J. at 16, (holding that police officers are not required to give defendants Miranda warnings prior to administration of [a B]reathalyzer test because "fundamental reason for the Miranda rules is just not present"). Additionally, because breath sample evidence "is evanescent and may disappear in a few hours," State v. Dyal, 97 N.J. 229, 239 (1984), police must administer the [B]reathalyzer test within a reasonable time after the arrest in order to obtain an accurate reading. Leavitt, supra, 107 N.J. at 541; see also, State v. Pandoli, 109 N.J. Super. 1, 4 (App. Div. 1970) (noting "rapidity with which the passage of time and physiological processes tend to eliminate evidence of ingested alcohol in the system"); State v. Corrado, 184 N.J. Super. 561, 568 (App. Div. 1982) (holding one-hour delay in consenting to take [a B]reathalyzer test violated Implied Consent Law).
State v. Widmaier, 157 N.J. at 487-8.
The Defense has filed this motion to Dismiss the DWI and refusal Summons Based on Police Failure to comply with NJ Attorney General Guideline on DWI and Refusal. The police failed to abide by this mandatory instruction. Therefore, violation of an Attorney General guideline should result in dismissal.

NJSA 39:4-50.3. sets forth the Method of analyses; approval of techniques; certification of analysts; reports; forms in DWI cases in New Jersey"
"Chemical analyses of the arrested person's breath, to be considered valid under the provisions of this act, shall have been performed according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General. The Attorney General is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to make certifications of such individuals, which certifications shall be subject to termination or revocation at the discretion of the Attorney General. The Attorney General shall prescribe a uniform form for reports of such chemical analysis of breath to be used by law enforcement officers and others acting in accordance with the provisions of this act. Such forms shall be sequentially numbered. Each chief of police, in the case of forms distributed to law enforcement officers and others in his municipality, or the other officer, board, or official having charge or control of the police department where there is no chief, and the Director of the Division of Motor Vehicles and the Superintendent of State Police, in the case of such forms distributed to law enforcement officers and other personnel in their divisions, shall be responsible for the furnishing and proper disposition of such uniform forms. Each such responsible party shall prepare or cause to be prepared such records and reports relating to such uniform forms and their disposition in such manner and at such times as the Attorney General shall prescribe."
Therefore, if a Police officer fails to follow the methods and forms of the Attorney General, any breath test is invalid.

The Appellate Division recently court recognized that all Police Officers are bound by Attorney General Guidelines.
See In the Matter of William Carroll, 339 N.J. Super. 429 (App. Div. 2001) for a discussion of AG Guidelines and their enforceability. Judge [now Justice] Wallace wrote:
"In this regard we note that the Attorney General is the chief law enforcement officer of this State. N.J.S.A. 52: 17B s-98. The Legislature has authorized the Attorney General to provide for "uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State." Ibid. Consistent with this authority, the Attorney General has issued guidelines concerning the appropriate application of the criminal laws.
Our Supreme Court has acknowledged the validity of various guidelines issued by the Attorney General. See generally State v Brimage, 153 N.J. 1, 24-25 (1998) (the Attorney General was instructed to reevaluate and issue new plea offer guidelines to assist all counties in consistently applying the Comprehensive Drug Reform Act of 1997); Doe v. Poritz, 142 N.J. 1, 109-111 (1995)(holding constitutional, as modified, Attorney General's Guidelines for implementation of convicted sex offender registration and community notification statutes); Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 192 (1993) (Court cites with approval the Attorney General's Law Enforcement Drug Screening Guidelines); State v. Lagares, 127 N.J. 20, 32 (1992) (Court requires the Attorney General to issue guidelines which will assist prosecutors in rendering uniform decisions concerning enhanced drug testing)."
If a police officer fails to follow Attorney General's Guidelines on DWI and does not give the defendant a copy of the Alcohol Influence Report Form, then the DWI and refusal must be dismissed.

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