Attention NJ DUI Defendants waiting on the new NJ Alcotest!
Jun 26th, 2007 | By Michael L. Saile, Jr., Esq. | Category: Blogs, Criminal & Traffic, DUI-DWI-DAI (Drunk Driving)Defense attorneys who are working on testing and checking the new NJ Alcotest machine for accuracy in the NJ Supreme Court have set forth an estimated timetable for the remainder of the hearings before the NJ Supreme Court.
Currently, there are many thousands of NJ DUI cases on hold waiting for the NJ Supreme Court to either approve the use of the new NJ Alcotest or approve the NJ Alcotest with certain modifications. It appears that the NJ Alcotest machine will be approved with some kind of modification. Either way, it will still be more accurate than the 1950’s technology of the NJ Breathalyzer machine.
The timetable for State v. Chun, the NJ DUI Alcotest case, will depend on whether the NJ Supreme Court wants to hear more testimony from experts.
If there are no testimonial hearings of experts:
5/22/07 Amended Remand Order
5/30/07 Source Codes due to respective software houses
8/28/07 Software Houses’ reports due to Special Master of NJ Supreme Court
9/11/07 Special Master’s report due to Supreme Court
If there are testimonial hearings of experts:
5/22/07 Amended Remand Order
5/30/07 Source Codes due to respective software houses
8/28/07 Software Houses’ reports due to Special Master
10/12/07 Testimonial hearings to be completed
10/26/07 Special Master’s report due to Supreme Court
It appears that we will not have a decision about whether the new NJ Alcotest machine will be approved until the end of 2007. For now, NJ DUI defendants must sit and wait until the final decision has been handed down from the NJ Supreme Court.
The author of this Law Blog, Michael L. Saile, Jr., Esq. of Saile & Saile LLP, Attorneys-at-Law practices both New Jersey and Pennsylvania criminal, traffic violations, and DUI/DWI/DAI law. Check out our website for DUI penalties. We handle all NJ Municipal Court cases including DUI in the following NJ Municipal Courts: Hopewell Township, Ewing Township, Trenton, Lawrence Township, Hamilton, Pennington, and other Mercer County, Burlington County, and Camden County, NJ courts. We also handle lower bucks county DUI and traffic violation cases in the following towns: Bensalem, Southampton, Richboro, Newtown, Levittown, Langhorne, Doylestown, Warminster, Trevose, Feasterville, Warrington, Bristol, Fallsington, Yardley, New Hope, Holland, Washington Crossing, PA, and other Bucks County courts. We handle DUI cases in Philadelphia. We are located just outside of Philadelphia in lower Bucks County.
I have been waiting 22 months for my dui trial in NJ. I have appeared 9 times thus far with an attorney. As of my last appearance, on June 28th 2007, the prosecutor still has not handed over about 50 percent of the foundational documents in discovery required by the law division. My attorney showed me the check list and a lot of items were still missing. My attorney has not made a motion to compel discovery as of yet. My next court date for my 10th appearance is in mid August. It is not clear if they can trial me on that date. My alcotest reading was 0.09 and there was no accident or any other circumstances. I was not drunk. I belive the entire case against me at this point is the alcotest reading of 0.09. I have seen a memo from the state to all courts stating all reliability hearings in municipal court on the alcotest are stayed pending the final decision in Chun. I think my attorney would challange the reding at the municpal level. Can they trial me in August or no? Also, at what point in time does it become prejudice that the prosecutor has not turned over the required discovery documnts? This case has caused me increased stress and anxiety over the past 22 months. Not to mention the time and money for the 9 court appearances over this time. At what point can we say the prosecutor failed to implement the duties of his office?
Thanks for your consideration of a pending response.
Jim
Jim:
As far as I know, the NJ Supreme Court has put a hold on all NJ Alcotest DUI/DWI cases in New Jersey, unless the local prosecutor believes he or she can take the case to trial without the use of the results of the Alcotest. The prosecutor would have to try the case on just the police officer’s observations alone.
I am not sure why you have to keep going back to court over and over again. I am sure your lawyer has that answer because he or she is just as inconvenienced by these numerous court appearances as you.
If the case is on hold by the NJ Supreme Court, I do not know if the local NJ prosecutor has a duty to turn over any Discovery (the paperwork) at this point. You said your reading was a .09, which is right on the .08 borderline.
If your luck is good, the NJ Supreme Court may order modifications to the Alcotest machine, which may mean that the machine that tested you, may not have been reliable and your case may be dismissed. Personally, if I was charged with a NJ DUI/DWI it would be worth my wait if it was dismissed.
The recent timeline that was set forth by the attorneys arguing the case in the Supreme Court stated that the earliest that we may get a decision would be the end of the year. Hang tight!
Thank you for your reply to my questions. I do understand that there is a good chance my dui may be dismissed or even won at trial.
The Judge is fully aware of the higher court’s stay on alcotest trials where the number may be contested. My attorney and I have appeared before the judge 9 times. He is fully aware of Chun. My attorney has also mentioned on record there are discovery issues. We continue to be called into court by the judge.
The reason we are making so many appearances is clear. It is because the judge continues to issue appearance orders. Could this be construed as prejudice and judicial misconduct by the court (by the judge)?
The judge, knowing full well that my trial at this point can not proceed without the alcotest number has no good cause to continue to order me into court. The State has had 9 chances to trial me without the number and refuses to do so. The court (the judge), I belive has taken unfair action against me by ordering me into court 9 times. Nothing happens in court when we go. I sit for 2 – 2 1/2 hours, my attorney talks to the procecutor a few minutes about a few different cases he has, and sometimes we go in front of the judge to say there are discovery issues and mention Chun. The judge has no reason to continue to call me into court until Chun is decided. I believe I have been prejudiced against by the court for the 9 appearnces I have had to make thus far.
I understand that this Alcotest business is unique. However, do I have any legal rights to due process and equal protection under the law concerning the judge ordering me into court an outrageous number of times knowing that there is no possibility for a trial? Not one time has the prosector or my attorney made one motion on the record in court concerning my case durning any of the 9 appearances thus far.
We all know the time line now for the Chun case. There will be more hearings I belive after the testing is completed. I also belive there will have to be more oral arguements scheduled in front of the justices after that. I also belive that there are too many issues to decided on in Chun, that after the arguments the court must take time to decide all the small details. The question of reliability is basic, but the questions for precedures for use are many details.
I guess my basic question is, is it judical misconduct to to order me into court 10 times and counting (under the circumstances which I have discussed above)?
Thnak you in advance for your reply.
Jim
Jim:
I do not know if it is judicial misconduct. I do not know the true reason why the court is requiring you to constantly appear. This is better left for your NJ DUI attorney to handle.
To make my case of Court wrong doing more clear more I will paste the memo form the NJ J.A.D. to all mucipal courts. In reading this memo concerning the court order of January 10th, 2006 it is clear the Judge (the Court) take no action in any in any case where the alcotest number will be challanged. I have the Judge on at least 8 counts of violating this court order. Every time he sent an appearance order, it was an action in my case.
It technicaly may not be Judicial Miconduct, but it is 8 counts of violating the higher courts order, no?
Below is the memo to all municiapl court Judges in New Jersey :
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
MEMORANDUM TO: Municipal Court Judges
FROM: Philip S. Carchman, J.A.D.
SUBJECT: State v. Chun — Status
DATE: February 14, 2007
This memorandum is to update you on the status of State v. Chun. As you know,
the Supreme Court in Chun appointed retired Appellate Division Presiding Judge Michael
Patrick King as Special Master to develop a record, conduct hearings and report his
findings and conclusions to the Supreme Court regarding the reliability of the Alcotest
device. Judge King submitted his report to the Supreme Court on February 13, 2007. The
Court has arranged for an expedited briefing and oral argument schedule.
The question has been raised as to how the municipal courts are to proceed with
Alcotest cases now that Judge King has submitted his report to the Supreme Court. The
answer to that question is plainly stated in the Court’s January 10, 2006 order in the Chun
case (emphasis added):
Ordered that any and all requests for a reliability hearing in
respect of Alcotest devices are stayed pending the filing of
the Court’s final decision herein, at which time all pending
challenges to an Alcotest device’s reliability shall be decided
consistent with the Court’s disposition; . . .
Accordingly, the municipal courts should take no action based on submission of the
King report to the Court, either in pending cases or in any post-conviction relief
applications. Rather, the courts should wait until the Supreme Court renders its final
decision and act in accordance with that decision.
Jim:
It seems to me that something else is going on in your matter. I dont understand why the Court and your attorney would want to waste any time going to useless court appearances on a “stayed” case. You should pursue this matter with your current NJ DUI attorney.
I have been honest in my submissions to this website. There is nothing else going on in my case. My case is a simple 0.09 alcotest case. There was no accident. The police report says I was pulled over for spedding. However, I was not issued a speeding ticket. I was not drunk. The officer actually had me read him the alcotest operation manual becuase he could not get the software to work. I offered him my services as an expert analytical chemist. He allowed me to read the manual and offer him suggestions. It took an hour and turning the machine on and off several times to get it to work.
As I stated, there have been no motions before the judge on the record. There have been no in chambers motions on or off the record that I am aware of by either the prosecutor or my attorney. There is absolutley nothing going on in my case other then to wait for Chun to end and the completion then of discovery documents.
However, as I read the court order, the Judge is ordered not to take any action in cases that involve a case of an alcotest reading. The “action” of ordering us to appear 10 times is ,I belive, a direct violation of a court order.
There are absolutly no special circumstances in my case. This would be my first offense if convicted.
My attorney hopes to meet with the Judge in chambers one of these times and get the case dismissed. I would like this to be the next time we go to court in August. However, I would interpet this as even being an “action” by the Judge, in violation of the court order.
I feel like a pawn caught in the middle of a poltical game. Judges are not suppose to be political entities.
There is much at stake here for the State of New Jersey. It could cost the State millions to upgrade all Alcotest units with the temperture sensor. The stakes are very high, even for me. The rest of my life hangs in the balance. A DUI showing up on a background check by a potential employer can cost me a good job in the future, even many jobs.
The amount of time the court has spent on me for each of my 9 appearnces so far is almost nil. It is the amount of time required to print an appearance notice, to read my name in two roll calls each time, and maybe 1 minute in front of the Judge, who takes the cavalier attitude , on tape,( at one of the appearances) that this case will be decided in 3 years. Maybe the court spends 3 minuites on me for each appearance. However, I have to drive to court 30-40 minutes, spend 2 – 2 1/2 hours there, and drive home. The amount of time the Judge has taken from my life, in direct violation of a court order, is clear. Also, the continued stresss and anxiety that builds up each time before an appearance has taken a toll on me mentaly and physicly.
It is prejudicial and has got to be ilegal I would think.
I wonder how many other DUI cases in that court are treated in this manner. If this goes on into 2008, being called in every 4-6 weeks until Chun is decided, I belive there should be an iquiry at least as to what happened to me.
Thank you for your time and your candor. It is extremely difficult for a defendant to express these concerns to his own lawyer. It is also extremely hard to get a defense attorney to comment in real legal terms about a case. For that I thank you.
Jim
Mr Saile,
I am researching bringing Comtemp of Court charges against the Muncipal Court and Judge in my case. The Judge is in clear violation of the New Jersey Supreme Court’s order in Chun. This order was made for several reasons I belive, one of them to prevent a defendant from having to appear in court as many times as I have on this case, causing undo stress and anxiety as well as time and a great deal of money for an attorney for each appearance.
I have all the Judge’s orders mailed to me by the municpal court for each of my appearances. I can also have my defense attorney and his firm testify to this as well.
The law must be upheld. Back room deals and political decisions do not take precident over the rule of the New Jersey Supreme Court.
I have just begun my research and I am looking at a case in Massachusettes where defendant brought contempt of court charges against a muncipal judge for not following a clear higher court’s order. I think we can all agree the order in Chun is extremely clear.
Do you have any thoughts on this?
Jim
Jim:
Unfortunately, I am not allowed to give you legal advice because we have not established an attorney/client relationship and due to the fact that you have already retained a lawyer for this matter.
In addition, there are confidentiality issues because this is a public blog and all communcations can be viewed by the public.
I understand. However, I have not yet hired or retained an attorney for the civil action against the Court and the Judge.
Would you be intrested in helpng me bring contempt of court charges ?
I have not mentioned any names in my case on this site. Not my name, my attorneys name, the prosecutors name, the judges name, or the court where this is all taking place.
I understand this is a public blog. There may be other defendants going through what I am going through and If there are I hope they see this and reply. There may be a combined case here.
In general, is it possible to bring a Contempt of Court complaint against a municiapl court judge in New Jersey? Has it been done before in New Jersey?
Maybe you can cite a cae for me I can research for myself.
Thanks
Jim
Jim:
This is not the type of case that our law firm handles. We have no experience in suing an NJ municipal court judge. Perhaps your current lawyer can shed some light on the issue.
I have re-read the NJ Supreme Court Order of January 10, 2006 in State V Chun that is posted on Mr Levow’s website.
The waters are very muddy.
The order states (as relevant to my case as a first time defendant):
“…Ordered that first time offender prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as relevant Alcotest readings…”
Mr Levow’s motion for the Court to reconsider this order was denied.
As I see it , and as my attorney sees it, The State should be going ahead with my trial.
The waters are muddy because , again, as I stated in my first post, the prosecutor will not hand over the required foundational discovery documents for the Alcotest machine I was testred on.
You say the prosecutor may not be required to hand over the documents until Chun is decided because the trials are “stayed”. This is what sent me on a tangent looking at the Judge for wrong-doing.
I have searched and searched the internet and I can not find any NJ Supreme Court order that superceedss the order of January 10,2006.
It appears the State was ordered to proceed with the trials.
It is extrememly unclear how the State can proceed to trial using Alcotest evidence when all hearings on the reliability of the Alcotest are ‘Stayed ” by the suprme court ( another part of the January 10, 2006 order).
A defendant’s right to due process will be violated. How can a municipal court judge find a defendant guilty based on the Alcotest number when the defendant is unable to challange the result? This is the delema the the NJ Supreme Court has caused by its order.
Based on this delema, I belive my rights to due process and equal protection under the law are being violated.
Am I wrong? The January 10th ,2006 order clearly states the State must proceed to trial in my case. The State has not done this.
I am so sorry that I do probably not understand this overall Alcotest case and the legalities.
Please explain to me , again, in light of the January 10 court order, why the State has refused to bring me to trial.
Thanks
Jim
My posts, numbers 3,5,7,8,and 10 are a good example of how a defendant can get on the wrong thinking track when a defense attorney gives out misleading and incorrect information.
You say in post number 2 that the NJ Supreme Court has put a hold on these cases. That information was incorrect. The NJ Supreme Court order of January 10, 2006 stands. I pasted the relevant part of that order in post 10. These casaes are suppose to go to trial as normal.
If there is a “stay” om these cases it is because the Attorney General, local Judges, and defense lawyers are in collusion not to go to trial. That is obstruction of juctice!!
I am just looking for the truth here. A truth that no one wants to talk about.
I was arrsted for DUI in Sept of 2005. I blew into the Alcotest device. Twenty-two months later we still do not have discovery.
This is an injustice to every citizen of New Jersey.
I guess most defendants would be happy to pay a defense attorney a lot of money and have the case “worked out” to the best possible outcome, and not care how it is done. I am not like that. I care about the law, our State, and our Country. Many people have died fighting for our freedoms and rights. Many court battles have taken place to protect and ensure our freedoms and rights.
In this case, the New Jersey Supreme Court made an order on January 10th , 2006 that these cases got to trial. Unless the State appeals that to the United Staes Supreme Court, they must bring these cases to trial. It is outrageous that 18 months have past since that order and the State has not moved on my trial. There is no excuse. The State expects to have these cases tried in 60-90 days of after arrest on a regular basis.
Clearly, the Supreme Court’s intent is to have these cases tried and let appeals fall where they may. Neither the State nor the lower courts, nor defense attorneys want any part of it.
What is the truth here?
It is a truth that no one in public office will stand up and say.
It is a truth that no defense attroney will admit to.
It is a truth that the courts close their eyes to.
I am going ot think about this more. I think we all need to think about it more.
For those of you who are in my position, as a pawn in this political battle, I want you to know you are not alone.
Jim
Jim:
A defense attorney should contest the admission of the Alcotest before the NJ Supreme Court verifies its admissibility.
If a prosecutor believes that he or she should be using the results of the Alcotest to prosecute you (i.e. the prosecutor does not want to try the case on the officer’s observations alone) then the case must wait until the Supreme Court issues its final ruling.
The New Jersey Supreme Court Order was clear. Proceed to trial. The prosecutor has no right to wait to bring me to trial. The State has arrested many people with no way to prove they are guilty. This itself ca not be legal as well.
Lets make up an example. The police belive a person commited a murder, but the only way to porve it is with DNA evidence. However, it is 1960 and there is no DNA testing that is acceptable. Should the State arrest this person, call him into court every 4-6 weeks for 40 years until they are able to have evidence to bring him to trial?
Of course not.
What I am asking is to show me something in writing or on audio or on video tape, from the New Jersey Supreme Court that overrides the Court’s order of January 10, 2006.
The Court said it is OK to proceed and ordered these cases go to trial using the alcotest result if so needed.
Also, it is serious obstruction that a prosecuotor is withholding discovery evidence for 22 months and counting in a regular, no special circumstances, traffic offense.
Please show me the actual New Jersey Supreme Court Order that overides th eOrder of January 10th 2006. Please.
The prosecutor has the duty and obligation to bring defendants to trial on behalf of the State. The prosecutor also has the duty and obligation to provide discovery in a resonable amount of time.
In light of the New Jersey Supreme Court order of January 10th, 2006, the State was ordered to go ahead with these alcotest trials.
What should of happened in my case would of been the prosecutor to complete dicovery at that time. Take the case to trial. My defense lawyer then would object to the admission of the Alcotest evidence, on record. The Municiapl Judge would then make a ruling to admit it into evidence or not. If admitted my attorney could then use all the expert testimony that was made in Judge King’s Court. At that time the prosecuiton would have objected, envoking the 2nd part of the Newe Jersey Supreme Court order of January 10th, 2006, citing that all hearings on the reliablity of the Alcotest are on hold by the high Court. The Judge wouold then make a ruling on that issue. After that , the State should present the rest of its case on record during a trial, including police officer testimony and any other evidence. My attorney would then be able to cross examine the officers. My attorney would then present my defense (which is very sound by the way).
The Judge can then make a decision on my guilt or put the matter on hold until Chun is completed.
Due Process is what I am asking for, and entitled to under the Constitution of the United States and the Constitution of New Jersey. It is what I want. It is part what this great Nation stands for.
The Supreme Copurt order of January 10, 2006 could ahve stated that the trials for first time defnadants where an alcotest result is necessary for prosecuiton be put on hold. The New Jersey Supreme Court never said that!!!!. In fact, they said exactly the opposite ( to ensure due process), that the trials go forward, with alcotest results. Probably in the way which I described in the paragraph above.
After 22 months now and counting, my case is washed up. The Police officer is not going ot remember a thing about my uneventful stop most likely. I have been severely prejudiced against by the State, because the State failed to comply with the New Jersey Supreme Court Order on January 10, 2006. Nothing has gone on record in front of the Judge except to mention Chun one time, with no details what so ever brought up. I am not even sure the recorder device was on that time.
It is not my obligation to bring my case to trial. It is the State’s obligation. The State was ordered to do so and has not. Due process has been swept under the carpet for political considerations.
Although my case is in one of the first 4 counties with the Alcotest, and could not be avoided, I feel the cases in the other 13 counties could of been avoided. The State again ignored the Supreme Court’s order to not roll out the Alcotest in any more counties, and rolled them out anyway.
Do court orders mean anything anymore? What is going on in New Jersey?
Again, I am continuing to think about this.
Jim
Jim:
Let me start by saying that I am not a lawyer. I too was pulled over in October of 2005 for speeding, reckless driving, and DUI. My lawyer asked for discovery and initially did not get all he asked for. We had several court appearances but still did not get discovery. My lawyer was able to waive my appearances as we moved through the process. He would call me before and after each appearance to let me know how things went.
Now fast forward some 19 months after the arrest and he was able to get the judge to toss out all machine readings. How, becuase the prosecuting attorney and the local Police did not know or did not care to provide the luminous data that my attorney asked for. We then has medical experts and a consultant on hand to take care of the field sobriety test. Result, DWI and Speeding tossed out. They would not toss out the reckless. The key to all of this …finding the right lawyer who knows the ins and outs of the Alcostest Machine, the DUI process, and the current state of NJ.
Good lukc
Jeff
Jeff, thats great. Was there a trial on the reckless or did you plead guilty?
My attorney is an expert on the Alcotest. Probably only a few people in NJ know more about the Alcotest then he does.
I just feel that all out eegs are in one basket with this case, the Alcotest number. Well, I figure, since my attorney is an expert on the Alcotest, I have to go along with this.
It just seems to me that we made 9 appearance so far over 22 months and only went in front of the Judge maybe 4 times just to say hi basicaly.
My attorney hopes to meet with the Judge in chambers , present the case off the record, icluding lack of discovery, and get the case dismissed from there, in the back, without putting the Court or the State on the spot. I guess its how local politics go sometimes. When a defense attorney has to go into a local municipal court on a regualr basis 2-3 times a month for the next 20 years throughout his carreer, i feel the dedfense attorney is hesitant to use the law in open court and put the Court and the State on the spot. My feeling on this is I would think the Judge and the State would then press and convict out of spite.
The system kinda sucks in that regard, but it the system we live under.
What are your thoughts on that?
Mr Saile,
Does a Municiapal Prosecutor has the legal authority to grant an adjourment for a case, for any reason, without both parties going in front of the Judge?
The reason I ask is becuase I see it all the time in Municiapl court. For example, someone wants a to plead not guilty and have a trial, but theres 100 people in the court room and the prosectuor tells the person to go home and he will get another notice to appear. Is something like that within the power of the State without going through a Judge?
What if the person wishes to speak with the Judge concerning motions or discovery or other issues, but the person is told to go home by the State before they get a chance to do so. Is that legal?
Jim
Can the State, (the prosecutor) , with support of the Police standing there, basicaly strongarm a defendant out of the courtroom using implied intimidation, when a Judge has ordered the defandant to appear in court on a given day?
A defandant appearing in Court is already fairly intimidated by the experience. Maybe a defendant wants to speak to the Judge, after being ordered to appear by Judge. As in my previous post, there may be some issues the defenadant needs to mention and discuss with the Judge.
Is it legal the State force a defendant out of the Courtroom because they just dont want the defendant to talk to the Judge on a given night, under these circumstances?
Is that obstructing the legal process?
Jim
I was charged with a dui in nj may 06, with .08 bac and a stay sentence pending alcotest. I have a PA drivers license and it was posted on my record. I have been put on suspension from my job until the case is resolved. What options do I have concerning a lawsuit against the state of nj for putting the dui on my record before it was official? This has caused me a great deal of problems financially, please help.
Oh My God, that is outrageous. You were chargerd May 6th, 2007? Was there a trial?
A BAC reading of 0.08 most likely will be reduced to under the limit. Among many things in Judge King’s report was the minimal reduction of 6.58% of every BAC reading. Any reduction puts you the legal range.
Usualy at the low number like 0.08, the number is a major part of the case as you were probably not falling down drunk.
This is eaxactly the kind of Court and Prosececutor wrongdoing I am talking about.
I am not sure what “post conviction relief” means, but in this alcotest businees it should include the State paying lost wages and transportation fees you incured in all fairness, but I dont think thats the meaning.
Mr Saile? Please respond to Mike.
Every Municipal Court Judge in NJ,every Court worker in NJ, every Municiapl Prosecutor in NJ, and every defense attorney in NJ, knows that all readings of 0.08 are most likely going to be reduced to below the limit. How can something like happened to you happen? This is a real outrage!
Mike:
I appears that you would have to research the NJ version of the Interstate Driving Compact. Find out what the duties of the State of New Jersey are with regard to reporting an NJ DUI arrest as opposed to reporting an NJ DUI conviction to the Interstate Driving Compact. If NJ violated the rules you may have a case. Good luck!
I heard that some States will suspend a person’s license solely based on a DUI arrest, before a trial, on the day of the arrest. Is that true in Pennsylvania?
No not in PA Jim, but I heard they do that in Florida.
I just recently received a DWI in NJ (0.10 BAC)- NJ Driver license. My case is currently “stayed”. During the stay, will this DWI appear anywhere on my DMV record?
I am not sure on that. Mr Saile do you know?
I do know that Court Rule R.1:38 does make the fact you were arrested “public record”. I belive that anyone envoloink this rule, could walk up to a court window and ask for a list of all pending cases and charges pending in the court,. I know this because I have received many letters form attorneys envoking this rule.
John, dont worry. Make sure you hire a good attorney. At the worst the 0.10 will be reduced to 0.08-0.09 level,because of the Chun cae, the reason your case is stayed, which means 3 months loss of license for first offender. Hoever, there are numerous defenses that can lead to an aquital or dismissal. The right attorney means everything.
Jim
I am extremely frustrated, stressed out, and anxious about my pending DUI Alcotest case.
It has been almost 23 months since my arrest. I have made 9 appearances with an Attorney. Not one motion has gone before the Judge, not even a motion adjoun during any of the appearances.
I just do not think the the proper rules of Court and Justice are being applied in my case.
Here are some of my concerns.
1) The NJ Supreme Court Order of January 10, 2006 stands, ordering the first time alcotest defendants such as myself proceed to trial – NO trial yet
2) The State made an arrest they can not prove
The State has not provided discovery. Only verbal requests for disacovery have been made concerning the Alcotest
3) The instrument I was tested on was not validated in its final resting place, or anywhere on US soil. (as opposed to calibrated).
Does Drager have any data to show when an instrument is moved it is OK. I doubt it. Not even Pharmaceutical companies get away with that nonsense, they re-validate.
4) My attorney has not investigated the stop, the stop scene, or the officer who questioned me 5 minutes before my stop, who let me drive off.
5)I can only speculate as to what is going on in my case. My attorney defintivley wil not plead me guilty, not for the 4000 dollars I paid him. On the other hand, my attorney does not wish the trial the case either. The State will not provide discovery, and also does not wish to trial the case. The burdon in this is on the State.
6)I have had a lot of problems in my life over the last 3 years. I am now rested and ready to move on with my life. The stress and aniety of the case is hurting me mentaly and then physicaly. I need this case won or dismissed so I can move on with my life. It has been 23 months. No one wants to trial the case, no one wants to make a motion,no one wants to dismiss.
I am stuck. Twenty three months I have been paralyzed by this case. I can not move forward. I can not get on with my life.
The stess, anxiety, and the loss of 2 years of my life I feel is punishment enough for any perceived wrongdoing I am charged with.
I can not move out of State, I can not get a job, I can not do anything in my life with this DUI hanging over my head. It has completely paralyzed me. The State can not prove I was DUI. My Lawyer is really not doing anything “above board”. The Court is not doing anything “above board”. The State is not doing anything “above board”.
It leaves me here to speculate, feel stressed out, and paralyzed. It is not fair.
Mr Saile, taking what I say as the truth, and it is the truth, do you see where I am frustrated?
JIm
As far as the motions to adjourm each of the 9 appearances. How can a Judge hear and grant a motion to adjourn when the Judge is on the bench giving out fines to 100 defendants on plea bargins, and my lawyer comes up to me after meeting with the prosectutor for 5 minutes, and says to me, Ok , we can leave now. Theres no motion to adjourn. The motiuons to adjournmust be being made by the State, on record, after we leave, at the very end of the court session. But that is speculation, and all this speculation is driving me to be stressed out.
Jim,
Your situation appears to be very frustrating. You seem to be very involved in researching all of the legal issues. It appears that you cannot communicate well with your lawyer.
I hear about this problem from many people. In my practice, I strive to keep good communication with my clients via telephone, email, and blog. Even on the weekends I routinely check my email.
Hopefully, this whole thing will be dismissed and you can move on with your life.
How can the State go around arresting people for violations they have no way to prove. That in of itself has got to be ilegal. If the State could prove I was DUI, they should of tried the case already. This is not a major crime here. It is a motor vehicle violation in NJ.
My 10th appearance in coming up in 2 weeks.
Mr Saile, what reason or excuse can there be for the State to take away my right to Due Process in this case?
Even if I get a trial sometime in the future, I can not get a fair trial. Two thirds of my defense is wiped away, and also probably some of the prosecuitons case is wiped away too. After 23 months, the police officer will only be able to go from the police report. Our ability to cross examine anything in the report, because of 2 years passing, has been wiped away. This is exactly what the NJ Supreme Court order of Jan 10, 2006 was written to avoid. To prevent cases where people can no longer fairly defend against the charges.
We all know that even in a per se violation such as this, putting chun aside, there can be resonable doubt to other aspects of the case. In the case where the Wall towenship Police Captain blew a 0.19 on the breathalyzer (sorry, it was not the alcotest, I was wrong) resonable doubt was raised about the stop and the case was won by the defense at trial.
I can not get a fair trial now.
See my frustration?
Mr Saile,
You do very well with communication. I am not even your client and you are communicating with me. I really thank you for that.
I sent my attorney a 4 page report I wrote on May 1st ,detailing and outlining my understanding of my case as it relates to the Oral Arguments made in the Supreme Court on April 5. I persnaly handed it to his secretary at the office. I also sent him all the validation and chemistry information recently too. I also sent him via email a long letter describing what I have described here about the right to due process. My attorney does not contact me or anyhting. I sit here and have to speculate as to if he read my letters or not.
I just checked the internet, and found out that my attorney has a big murder trial he is working on. I understand he has many cases, he also has attorneys who work for him as well though.
I feel bad that I have to make a lot of writing about my case, in light of people may be going away for 30 years.
I do not wish to be selfish or anything like that. I do expect though after 23 months in a reletaivley simple DUI case, as coompared to a murder trial, that somehtiung would of happened by now.
As I said before, I think the punishedent I have recieved by having ot put the last 2 years of my life on hold because of a traffic vilation is punishment enough. We only live so long. I have been punished I feel.
Hopefuly this whole thing will be dismissed and I wil not have to bother thinking about this or writng about it anymore.
I am actualy thinking about trying the get a law degree. I love the law and I love to argue for rights.
Can I get a law degree online? I have BS degree already.
New Jersey has basically become a socialist state. All they care about is collecting fines. This is why there are no work licenses permitted following a dwi. Ever notice the huge number of cops on the roads in Jersey? That’s because of all the money they make off of violations. It’s disgusting, and NJ does not care how many civil liberties and personal rights they trample in the process. Jim’s case is a travesty of law. There are many of us sitting out here with pending dwi charges in Jersey, fortunately for me I am a resident of the Commonwealth of Pennsylvania, who actually cares about individual freedoms and rights. Even after New Jersey fines me thousands of dollars PA will not revoke my driving privileges for this offense. Got bless America, down with the socialists in that disgusting excuse for a state.
4part argument to get the alcotest out of new jersey
Part 1
Does anyone in New Jersey know the actual calculation the Alcotest software uses to take the raw data electronic signal from a standard and a breath sample and calculate a final BAC reading?
Defense lawyers have probably heard this argument a million times in the past with the breathalyzer. The argument becomes more important with the Alcotest.
Are the raw data counts, the raw electronic signal that is measured by the Alcotest and converted into a digital number, available for review for each test?
A lot can be told by looking at the raw data signal in knowing if the instrument worked for a given breath test. I have spent 19 years looking at raw data signals from analytical instruments in review of analysis. It is important.
Are the IR Spectra available for each test? This is important , so we can see the actual baseline on a defendants breath sample and peak shape. A weird looking peak shape will give us the wrong answer and we can see this visually if we had the IR Spectra.
Does the instrument calculate form peak area or peak height?
Putting the Spectra aside, if the Alcotest can not give us the raw data signal, there is no way we can review the calculation. Every test result from the instrument should be VOIDED. New Jersey may as well sell its units to Alabama to recoup some money.
We need to see the raw data and the long form hand written calculation for each breath test.
If the Alcotest cannot supply raw data through its current software, in any way, even it means someone going in and calling up data files, the results need to be voided, every last one.
Part 2
Does the Alcotest instrument store the raw data signals , the counts, for the standard calibration and each breath test , so a defendant can obtain the raw data and do the calculation?
I can forget all the validation I talked about, the calibration, double blind studies, certificates, audits, ect.. everything. We can forget all of this.
The fundamental understanding of the Alcotest evidence against me, and every defendant, is the raw data signal produced by the Alcotest instrument.
The most important piece of evidence is the raw data.
Computers today have 20 gigabytes minimum, there is no reason the software can not provide the raw data. It is an absolute must. No reason at all.
People’s reputations, futures, jobs, driving privileges and freedom ( jail time) are on the line. We can not allow the Alcotest to be in use if it does not provide the raw data.
There are 5 defense attorneys, 5 justices, 3 attorneys for the State, who are going to have to work out justice for the 7 plus million citizens of New Jersey in this case. It is a huge responsibility. Seven plus million people are counting on you. Please fight for raw data.
I do feel real bad for our State if they have bought an instrument that has software that does not store or supply the raw data used in the calculation of the BAC. But it is not our fault. The citizens of New Jersey deserve better then this.
Part 3
We deserve better instrument then the Alcotest ,if this is the case, no signal. For justice for everyone in New Jersey. I do not care if it means higher taxes, higher traffic fines, we need to find the money .
No defendant will ever know if the Alcotest calculated the right number without preserving the signal. This is a must for us.
Without the signal response there is absolutely no way to check any result, no way to check the calculation for any test. This is an outrage beyond belief.
Drager has swindled the State ,in my opinion. In something as important as someone’s freedom, we must have the signal. Saving the signal in a data file is extremely common in analytical instruments that produce a result using a standard and sample. When a instrument is calibrated with a standard like this and a sample is run through it , and a result is produced, a electronic signal, the signals must be available for review. It is not only extremely common, it is the 21st century and it is expected!
This signal, produced when a person blows into the Alcotest, is the fundamental piece of evidence against Alcotest defendants. Evidence that does not exist. Only as a ghost. Appearing and vanishing into a game chip. This is outrageous.
Correct me if I am wrong, but I do believe we were able to see the signal from he breathalyzer ( at least a strip chart recording).
Analytical instruments like GC, HPLC, IR, UV produce electronic signals during a test, these signals are converted into digital numbers. These numbers are shown on the screen, saved in a data files, and even printed out if needed. The signal is more important then the final result. The final result can always be obtained as long as the signal is preserved.
Without the raw data signal, there can be no evidence!!!
This is truly a conviction based on something that no one will ever know is right. The citizens of New Jersey do not want to be convicted based on numbers that can never be seen. (if they realized what this was all about ) .
I woke up early this morning, tossing around in my bed about this, and all of a sudden it came to me. The signal. This is the most basic point there is in this case as far as I can tell at this point.
You have confirmed my nightmare. No signal available.
I am going to think about this issue more, but now I am at a standstill. I am at a loss. Maybe the people of New Jersey need to be educated on the Alcotest through the press , and maybe enough talk can be generated about not having the signal available that we can force Drager out of NJ until it comes back with an acceptable testing device.
In the meantime, the police must rely on observational evidence I guess.
Part 4
On page 10 of document S-49NJPUser- Technical Manual, there is a picture of a sample IR Spectra of human breath. It shows the methodology principal used in the Alcotest.
Drager has a major problem though. They never showed their instrument can produce this spectra. And if it can, why isn’t this spectra data saved for each defendant’s breath test. Why isn’t at least the signal magnitude saved in digital number form for each test so we can calculate BAC by hand?
( because Drager did not design the instrument to do it, that is not our fault, all analytical instruments do it, its common place.)
Especially in something as important AS A PERSON’S FREEDOM IS AT STAKE, WE NEED THE SMOKING GUN, THE EVIDENCE, THE ACTUAL RAW DATA SIGNAL.
The fact is , that without knowing the actual magnitude of the peaks coming form the Alcotest, standard solutions and breath samples, there is absolutely no way to validate the instrument, no way to know if it calculates the right BAC, virtually no way to prove it works at all for a breath sample.
There is no way Drager could of possibly made a valid instrument without having the data I am talking about.
Why isn’t the data for each breath test available to defendants?
I have previously sent my,my thoughts about the need for the raw data signal to be preserved , stored in a data file.
This is the jugular that can be argued to get the Alcotest out of New Jersey as it functions now.
Thank you for your consideration of this argument
Jim
(alcotest defendant, analytical chemist).
Part 1
Does anyone in New Jersey know the actual calculation the Alcotest software uses to take the raw data electronic signal from a standard and a breath sample and calculate a final BAC reading?
Defense lawyers have probably heard this argument a million times in the past with the breathalyzer. The argument becomes more important with the Alcotest.
Are the raw data counts, the raw electronic signal that is measured by the Alcotest and converted into a digital number, available for review for each test?
A lot can be told by looking at the raw data signal in knowing if the instrument worked for a given breath test. I have spent 19 years looking at raw data signals from analytical instruments in review of analysis. It is important.
Are the IR Spectra available for each test? This is important , so we can see the actual baseline on a defendants breath sample and peak shape. A weird looking peak shape will give us the wrong answer and we can see this visually if we had the IR Spectra.
Does the instrument calculate form peak area or peak height?
Putting the Spectra aside, if the Alcotest can not give us the raw data signal, there is no way we can review the calculation. Every test result from the instrument should be VOIDED. New Jersey may as well sell its units to Alabama to recoup some money.
We need to see the raw data and the long form hand written calculation for each breath test.
If the Alcotest cannot supply raw data through its current software, in any way, even it means someone going in and calling up data files, the results need to be voided, every last one.
Part 2
Does the Alcotest instrument store the raw data signals , the counts, for the standard calibration and each breath test , so a defendant can obtain the raw data and do the calculation?
I can forget all the validation I talked about, the calibration, double blind studies, certificates, audits, ect.. everything. We can forget all of this.
The fundamental understanding of the Alcotest evidence against me, and every defendant, is the raw data signal produced by the Alcotest instrument.
The most important piece of evidence is the raw data.
Computers today have 20 gigabytes minimum, there is no reason the software can not provide the raw data. It is an absolute must. No reason at all.
People’s reputations, futures, jobs, driving privileges and freedom ( jail time) are on the line. We can not allow the Alcotest to be in use if it does not provide the raw data.
There are 5 defense attorneys, 5 justices, 3 attorneys for the State, who are going to have to work out justice for the 7 plus million citizens of New Jersey in this case. It is a huge responsibility. Seven plus million people are counting on you. Please fight for raw data.
I do feel real bad for our State if they have bought an instrument that has software that does not store or supply the raw data used in the calculation of the BAC. But it is not our fault. The citizens of New Jersey deserve better then this.
Part 3
We deserve better instrument then the Alcotest ,if this is the case, no signal. For justice for everyone in New Jersey. I do not care if it means higher taxes, higher traffic fines, we need to find the money .
No defendant will ever know if the Alcotest calculated the right number without preserving the signal. This is a must for us.
Without the signal response there is absolutely no way to check any result, no way to check the calculation for any test. This is an outrage beyond belief.
Drager has swindled the State ,in my opinion. In something as important as someone’s freedom, we must have the signal. Saving the signal in a data file is extremely common in analytical instruments that produce a result using a standard and sample. When a instrument is calibrated with a standard like this and a sample is run through it , and a result is produced, a electronic signal, the signals must be available for review. It is not only extremely common, it is the 21st century and it is expected!
This signal, produced when a person blows into the Alcotest, is the fundamental piece of evidence against Alcotest defendants. Evidence that does not exist. Only as a ghost. Appearing and vanishing into a game chip. This is outrageous.
Correct me if I am wrong, but I do believe we were able to see the signal from he breathalyzer ( at least a strip chart recording).
Analytical instruments like GC, HPLC, IR, UV produce electronic signals during a test, these signals are converted into digital numbers. These numbers are shown on the screen, saved in a data files, and even printed out if needed. The signal is more important then the final result. The final result can always be obtained as long as the signal is preserved.
Without the raw data signal, there can be no evidence!!!
This is truly a conviction based on something that no one will ever know is right. The citizens of New Jersey do not want to be convicted based on numbers that can never be seen. (if they realized what this was all about ) .
I woke up early this morning, tossing around in my bed about this, and all of a sudden it came to me. The signal. This is the most basic point there is in this case as far as I can tell at this point.
You have confirmed my nightmare. No signal available.
I am going to think about this issue more, but now I am at a standstill. I am at a loss. Maybe the people of New Jersey need to be educated on the Alcotest through the press , and maybe enough talk can be generated about not having the signal available that we can force Drager out of NJ until it comes back with an acceptable testing device.
In the meantime, the police must rely on observational evidence I guess.
Part 4
On page 10 of document S-49NJPUser- Technical Manual, there is a picture of a sample IR Spectra of human breath. It shows the methodology principal used in the Alcotest.
Drager has a major problem though. They never showed their instrument can produce this spectra. And if it can, why isn’t this spectra data saved for each defendant’s breath test. Why isn’t at least the signal magnitude saved in digital number form for each test so we can calculate BAC by hand?
( because Drager did not design the instrument to do it, that is not our fault, all analytical instruments do it, its common place.)
Especially in something as important AS A PERSON’S FREEDOM IS AT STAKE, WE NEED THE SMOKING GUN, THE EVIDENCE, THE ACTUAL RAW DATA SIGNAL.
The fact is , that without knowing the actual magnitude of the peaks coming form the Alcotest, standard solutions and breath samples, there is absolutely no way to validate the instrument, no way to know if it calculates the right BAC, virtually no way to prove it works at all for a breath sample.
There is no way Drager could of possibly made a valid instrument without having the data I am talking about.
Why isn’t the data for each breath test available to defendants?
I have previously sent my,my thoughts about the need for the raw data signal to be preserved , stored in a data file.
This is the jugular that can be argued to get the Alcotest out of New Jersey as it functions now.
Thank you for your consideration of this argument
Jim
(alcotest defendant, analytical chemist).
They have to show the Alcotest works somehow.
There’s no proof at all it works at all.
How do you know the Aloctest employs the 2100-1 ratio if you do not know what the calculation is programmed to do??? How do you know anything in the calculation in the Alcotest is correct if its secret???
Furthermore, it is impossible to validate an instrument that uses a standard calibration and a sample without having signal.
Putting aside the need for the signal for each defendant, what about in the factory? There’s absolutely no way for Drager to know it works without the information I am talking about. Sheesh!
We do not KNOW the technology works though. That’s the whole point.
The instrument was not validated. If the raw data signals can not be saved, there is no way to validate it!!!! They must of proved it works somehow. Lets see the proof!
I am an analytical chemist 19 years. I know what I am talking about.
How would you know the software that was in the particular instrument I was tested on had the calculation set in the software at 2100-1???? There’s no way to know. That is wrong to have it like this. How would we know the police didn’t go in and change it to 4200-1 the day I was tested??? How would we know the software is not corrupted? How do we know any of this?
Tell me that?
Having the raw data signal for the standard and sample for each test is not like putting a man on the moon. Every GC, HPLC, IR, and UV in NJ, millions of instruments in NJ have it. Its, its ,its, I don’t even know what to say.
Its just part of what instruments do. Its obviously easy to do. Waters, Agilent, Perkin Elmer, Hitachi, Thermo Orion, Varian – are all analytical instrument manufacturers – all do it.
What is there to hide? It can easily be done. We deserve to have instruments that do it.
Why doesn’t the State and Drager and the Court understand?
What is the big deal. I do not understand it. It makes no sense that an instrument can easily be made that provides the raw data and calculation and we don’t have one for BAC. It is beyond belief.
Obviously there is something they are hiding? What is the problem?
The US Supreme Court never said that we should not or cannot have an analytical breath instrument that tests for BAC that has raw data files for each test.
We can have it if we want it.
Why wouldn’t we want it?
I want it.
I think most people would want it.
So what is the big deal? Let’s buy one with it.
Unless the Alcotest technology don’t work and they are hiding something.
Get my point?
We just need 2 more columns on the BAC report. One for standard signal, one for sample signal. And the example calculation on the bottom.
It nothing hard to write into the software. It is so common it is unimaginable we do not have that information on the BAC report.
Why would the State fight so hard to keep that information secret?
That the State is fighting so hard to keep it secret right there tells us something is wrong with the instrument.
Jim
Well, I had my 10th appearance tonight. Good news. The State is conceeding the Alcotest number is false, unprovable, and will not go to trial with it.
They want to trial the case based on observational evidence alone. Half of their case has dissappeared. I feel after 23 months now and counting, we can win for sure now. I am confident.
I am going to start researching DUI based soley on observational evidence.
I was not drunk, and I was operating the vehicle just fine. It is not like I was falling down drunk or anything. I have a top DUI trial attorney, so I feel we can win.
A plea offer was made, although against policy, of reckless. I said no to the plea deal. My attorney, well one of the firm attorneys, that showed up to represent me tonight, was very against my stance, he adsvised against it. I do not think it was right for him to do that. I was offered, it was all explained to me, I said no. I think they just want money out of me, like the guy said that posted above. However, pleading to a 2nd offense reckless in NJ carries a possible 90 day jail term, there is no way I can plead to that!
I am defintively not guilty of reckless driving.
I am defintively not guilty of DUI.
So what if the officer says he smelled alcohol, and that maybe I was shaky on the field sobriety test, I do not think that is proof of DUI. Thats why they have breath testing machines. These cases are for people who are blitzed, falling down drunk, and obviously drunk. If I was obsiously drunk, they could of taken the case to trial on any number of ten appearances over the 23 month time span.
If I was obviously drunk, why would the pofficer of let me read him the Alcotest manual and help him figure out how to work it for over an hour.
Mr Saile , do you think this is a good development?
Jim
I just realized I am probably screwed on this. By the State not entering the BAC result into evidence and going on the field sobriety test and observations alone, if I am found guilty I will lose my license for 7 months on a first offense instead of 3 I think. This is outrageous.
No one will ever be able to fight a DUI where they blew a 0.08 or 0.09 because the State can drop the evidence and convict you on the higher consequences. If the defense wants to bring in a 0,08 or 0,09 into evidence then, it is an auto matic per se conviction. This is an outrageous situation I am in now. We have waited 23 months for discovery on the Alcotest, now all of a sudden the prosecutor sandbags us in court and says he is ready to trial the case on observational evidence only. Sheesh!
Why isn’t my attorney making any arguments in front of the Judge.
5 hours ago I was happy they dropped the BAC number, now I am thinking the situation is worse for me.
I dont know, but i cant sleep at all.
Jim
Mr Saile, if the sate does actualy go to trial on my first offense DUI case where I blew a 0.09, but does not use the number in the trial , only uses observational evidence, and I lose, will it be the same as losing a 0.10 or higher case, 7 monmth loss of license instead of 3? Please respond, my attoney can not speak with me until September 10th and I am going out of my mind.
If that is the case, how can anyone ever contest a 0.08 or 0.09? The State can pull the number out, and trial a defendant based on observations and win. Forcing the defense to submit the numbe into evidence , thus conceeding a finding of guilt on the 0.08, 0.09.
If this is the case, what is Chun all about?
Is the number important or not?
I just do not understand anymore. I have spent months, since April 6th or so , whenever the Oral Argument Vidoe came out, researching and talking about the Alcotest, because I was lead to belive that if one beats the Alcotest, they will win the case. Obviuously theres a loophole where the State can pull the number , not submitt it into evidence and get a conviction with even higher penalities. I am beside myself. I has been nearly 2 years. The prosecutor was prepared to go to trial last night based on observational evidence and my attorney was not ready to proceed. I am going nuts. We need a field sobriety expert and the officer that questioned me 5 minutes before me stop in the next town over. Do you understand my frustration? For almost 2 years my attorney been telling me about the Alcotest,that it is important, that we need to beat it, that Chun may bring my number down or have it thrown out, but he never once talked about the observational case. Now I am finding out my attorney is not prepared for the observational case.
Appeanrtly, wheather we beat the number or not we would need a defense for the field sobriety testing and the stop.
Mr Saile, please at least answer my first question, – will the penalty be higher if I lose a case based soley on observaton , rather then the 0.09?
ps, the attorney I actualy hired, the top DUI guy ,was not there last night, he sent one of the staff attorneys.
Jim
Jim:
If your trial proceeds with out a BAC reading then then I believe the longest driver’s license suspension that you can in NJ get for 1st offense is 3 months…
Thank you, I hope you are right. I am trying to confirm through another source. Then of course my attorney on September 10th.
I felt at the begining of my case that my attorney out all our eggs in one basket, the Alcotest number, and that because of this attitude by him, I thought that if we beat that number I can be not guilty of DUI. Well, now we have beat the number, the State will not use it against me, and my attorney is running scared. It is unbewlievable.
I guess maybe we should have been attacking the stop from the begining, constitutionality issues and everything else concerning the stop and arrest. I d onot understand why i am not getting hte zealous defense I paid for. Last night is a perfect example, once again, we did not appear in front of the Judge. I sat there for 2 hours, then was told to leave by my attorney.
Do most attorneys work like this? All I heard for the first 23 months of my case from my Attorney, his attorney staff, and his office staff, anytime I asked about anything was “CHUN”. Everytime we went to court they would say there is a problem with CHUN. Obviously there is no problem, CHUN does not even affect my case, they can trial me and convict based soley on on=bservational evidence. What is th epurpose of fighting a number that means nothing? Well, now the number is out in my case!
Well, my attorney gave the Judge a letter last night stating I am invoking my right to a speedy trial. I di not know about this and was informed after the fact. What kind of professionalism is that? Where is the communication? Last time we went to court in June my attorney said we wil not preess them for the discovery because it can easily be obtained by the State. That was the last I heard from him until last night’s letter to the Judge. Totally opposite of what he told me in June our plan was, and without my knowledge or authorization. Wel, now we pressed the State last night and appearantly the 2 yerar old documents we need are not that easily obtained by the Styate and they want to go to trial without the BAC number now. And my attorney is not prepared. I just dont understand it.
I need all my optrions explained to me again, including now what are the consequences of a conditional guilty plea.
Jim
You are right, I have confirmed this with a 2nd attorney. I fno BAC result is entered into evidence, and it is a first offnese DUI, then if found guilty there is only a 3 month loss of license.
Are the observations of a Field Sobriety Test considered Objective Observation evidence or subjuctive evidence.
To me, as a regular person, I would think they are subjective, could be different from different observers.
This can be overcome by an expert trial attorney.
I am asking because the NJ Supreme Court Order of Jan 10, 2006 states
The order states (as relevant to my case as a first time offender):
“…Ordered that first time offender prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as relevant Alcotest readings…”
It makes me angry to find out the prosecutor has been , excuse my language, yanking me around for 2 years. I have been represented by an attorney at each of the 10 appearances.
It is not our fault that every time we go the prosecutor does not have the remaining 50% of the discovery documents for the Alcotest breath machine. No we find out at the 10th appearance, 698 days into the case, these documents will never be forthcoming.
The question is being begged to ask of the prosecutor, in front of the Judge, how long has he known this.
My stress and anxiety level has been ever increasing and getting worse and worse.
People do not live forever, I have lost 2 years of my life worrying about this, and now I find out the prosecutor been playing games for 2 years.
Now the prosecutor says he will go to trial without the Alcotest reading, no BAC result at all
Now , everyone I hope can understand what I have been talking about.
I believe a Speedy trial has already been violated in my DUI case. The lengthy delay, almost 2 years now, and 10 appearances thus far is enough.
We waited from the date I hired my attorney near end of September 2005 to August 15, 2007, ( encompassing 10 appearances) for Per Se related discovery documents form the State.
We find out on August 15, 2007 the prosecutor has not given us these documents because he is “Lazy” as my attorney put it. We find out on August 15, 2007 the prosecutor will not be giving us these documents and will trial the case on observational evidence only.
Although there may have been a 7 month delay form September of 2006 to April of 2007 because my attorney’s other trial work, that is no excuse for the State to not supply discovery in my case and not bring my case to trial on any one of the 10 appearances we did make, ( 7 appearance between September 2005 and September 2006, and 3 more appearances , April 2007, June 2007, and August 2007).
When are we going to receive an answer form the Judge concerning my motion for a Speedy Trial?
I received the new Court date in the mail , it is for November, 2007. Will we receive an answer on the Speedy Trial motion before that Court date, or will we receive it during that Court appearance?
A three month delay for a Court appearance, after asking for a Speedy Trial, for a case the State and Court wants trialed within 60 days of arrest, where the NJ Supreme Court issued and Order on January 10th ,2006 , ordering the State to proceed to trial, in a case that will be 26 months old at that point (Nov 2007), is a further violation of my constitutional rights.
Below is some case law notes I found on the Internet concerning Speedy Trial for DU in New Jersey.
In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction was reversed and case dismissed based on speedy trial violation.
The court held: “Excessive delay in completing a prosecution can potentially violate a defendant’s constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55.
In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 (1972). Gallegan, supra, 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990).” Farrell, supra.
Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay.Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). State v Farrell
NJ
supra.
Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation.Gallegan, supra, 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff’d o.b., 70 N.J. 213 (1976).
In a related vein, the defendant’s demonstration of prejudice is not strictly limited to a “lessened ability to defend on the merits.” Ibid. Rather, prejudice can be found from a variety of factors including “employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like.” Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)), cited by State v Farrell, supra.
The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987).
Someone asked me if my attorney has requested a dismissal basedon a speedy trial violation.
This is how I replied:::
No, not yet. I am going to talk to him about it in our upcoming meeting. We met the last the the 4 criteria on August 15, 2007 -an assertion of my right to a speedy trial.
According to the Case Law I put in my post above, we did not really have to do it, as long as the other 3 criteria are met and weighed heavily.
The letter to the Judge simple stated I am invoking my right to a speddy trial. No substance to the letter at all. The Judge promptly turns around and puts the next trial date 90 days out from the letter.
I think we got them now.
The 4 criteria to be weighed by the Judge are :
1) Length of delay – in my case it will be 26 months out at my my next court appearance ( 10 appearances made already)
2)Reason for delay – in my case it is a lack of discovery and thus lack of prosecuiton , as well as some Court delays which can not weigh against me.
3)Prejudice from delay – in my case there are several factors here on this one -
a) severe stress and anxiety over the unresolved prosecution has paralyzed my life (everyone is different, this delay has affected me greatly). I am not just saying this to use it. I swear to God and on my Fathers grave that not a minute goes by I do not think about the pending prosecution. I often just sit on the sofa and mumble and talk to myself about it. This is what the delay has caused me to do!
b)lessoned ability to defernd on the merits – I was questioned 5 minutes before my stop by a police officer in the next town over as I was walking to my vehicle form the girlfriend’s parent’s front door. The officer was responding to a call that a strange man was in the area. I answered a few questions and asked a few questions. The officer did not smell alcohol or think I was drunk, as he allowed me to get in my vehicle and drive off. After 26 months it wil be impossible to have the officer testify to that and probably even to get the police logs for that night that show the call and the officers log.
As well as lessoned ability to cross examine the arrresting officer and breath test officer on what happened as they will not remember anything!
c)I am in between jobs right now in my carreer, partly because of ther stress and anxiety of this case, and not only is the stress and anxiety of the pending prosecuiton paralyzing me on a daily basis. It is preventing me form obtaining a job in my field. I am a professional chemist. I can not take a job in a lab in a factory up north and quit after 3 months because I lose my license. I am dead broke, I need to start working again.
4)Invoking my right to a speedy trial – I have done this on August 15, 2007. I think this should be the least of the factors. Just because someone does not invoke their rights or know their rights are being violated sooner, does not mean that they are not being violated.
Here are addtional facts:
1)The simple fact is the State and the Court wants DUI cases trialed within 60 days of arrest. Although some delays are common and unavoidable a 26 month delay is too long.
2) I have attended each Court session I was ordered to, in good manner, with an attorney. Ten court appearance so far.
3) After each appearance I was sent home because the prosecutor does not have discovery
4)The New Jersey Supreme Court Ordered the State to “proceed to trial” on January 10 of 2006!
At This point I need the following:
1)My attorney to write a lengthy defense brief explaining why my right to a Speedy trial was violated. I would like it to be 50 pages at least.
2)The defense brief submitted to the Judge
3)A request for a hearing on Speedy Trial violation. At which I can testify and get on the stand and show them how this delay has paralyzed my life.
4) If we do not get a dismissal on all this, be prepared for a trial and get it done.
5)Appeal any conviction based on a speedy trial.
Well, I will think of more to say later this morning I am sure ( as it is all I ever think about) I think this is a good post for now.
I aplogize for the spelling errors and wording erros in the above post. I write and post, and try to get my point across and do not realize there are spelling errors.
Mr Saile, I know better than to ask you for specific legal advice on here, however I do have a question.
In general, is what I wrote in th epost directly above, based on my point of view, an unreasonable assessment of this situation?
From what I can tell from my research, as long as I have asserted my right to a Speedy Trial, before an actual trial takes place, I am covered in New Jersey. I have done this.
Back in September of 2005, when my attorney notifed the Court of his taking of my case, he also notified the Court that I want all my Rights. That, along with the letter invoking my right to a Speedy trial, before any trial has taken place, assures me of meeting that criteria.
The first criteria that needs to met however, before the Judge can look at any of the other 3 criteria, is the actual length of time that has elapsed. In my case, it will be 26 months as of my next Court appearancecinNovember of 2007. That meets the criteria for being too long a time, when considering I habe made 10 Court appearances so far over the first 698 days (23 months).
I spelled out my case a few posts above concerning the prosecutor and prejudice.
I honestrly believe it is worth a shot to get a dismissal at this point.
I believe an attorney dedicated to the Law and his client would want to let everyone know that he feels the State’s Prosecutor has acted in a lazy and prejudicail manner by stringing us along for 26 months for discovery documents that we will never receive.
If a defense attorney takes the approach, well, I have to bring other cases in here over the next 20 years of my carerer defending clients, I don’t want to rock the boat and make waves and cause the prosecutor ofr Judge to look bad, so I will try to screw my client over so he doesnt realize all this, well, then, Justice is gone in New Jersey, we are all truly salves.
Jim
Those of you who have read my posts in this forum about my case should have an understanding of the stress and anxiety I am going through over the unresolved prosecution of the first offense, low level, DUI charge I have against me.
I was arrested in September of 2005. I have made 10 Court appearances with an attorney over that time. That is 23 months time. Each time I get sent home because the Municipal Prosecutor has not completed discovery.
My attorney stated in a Letter to the Court in September of 2005 that I want all of my Rights. My attorney has also stated in a letter to the Court in August 2007 that I am invoking my Right to a Speedy Trial.
During the 10th appearance, 23 months after my arrest, the Municipal Prosecutor told my attorney we are not going to get the completed discovery and he will trial the case on observational evidence alone.
1) What legal reason can the Municipal Prosecutor give the Court for delaying a trial out 2 years in this case?
2) Is there any Moral or Legitimate reason at all?
3)The Prosecutor can not say he was involved in Plea Bargaining with us, as Plea Bargains are strictly forbidden in DUI cases by both the Attorney General’s Office and the New Jersey Supreme Court.
4)As the State was ordered to “Proceed to Trial” by the New Jersey Supreme Court on January 10, 2006, what possible legitimate reason can the State give for not following this order.
5)It is not a complicated case. It is a run of the mill DUI charge with no accident and no video tape.
6)It is important the Municipal Prosecutor do his duty and bring DUI cases to trial on behalf of the State and everyone in New Jersey. Why has he not done this?
7) It does not make sense. The Municipal Prosecutor has strung us along for 2 years on ten appearances without providing completed discovery.
I need HONEST answers to my questions. I want the TRUTH.
Here is an index of my other posts on the New Jersey Law Network forum site.
Speedy trial – 12
Impact of Chun – 10
Alcotest Calculation – Secret Evidence – 7
Contempt of Court – 2
Alcotest reliability – 22
Right to Trial -1
Alcotest Help Needed – 3
Alcotest Prosecutions – 3
Objective V Subjective Evidence -1
DUI Observation Case – 3
Municipal Prosecutor Authority – 2
Court Rule R 1:38 – 3
That is 67 posts I have written regarding my unresolved prosecution.
Proof of the stress and anxiety the unresolved prosecution has caused me to experience.
I have also sent my own attorney 40 letters about the case since May 1st, 2007.
(with no reply)
I have posted an additional 61 posts on this law blog site.
How many years can the charges remain on my head before someone is legally held responsible for the vicious treatment I am receiving in a New Jersey Municipal Court?
The New Jersey Supreme Court Order of January 10, 2006 that Ordered the State to “Proceed to Trial” was an order that the State will not be able to get around in my opinion. THAT ORDER RIGHT THERE PROTECTED MY RIGHTS TO A SPEEDY TRIAL.
How is the State going to get around this in my case?
The order states (as relevant to my case as a first time offender):
“…Ordered that first time offender prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as relevant Alcotest readings…”
I am sure I am not the only person that has figured out the New Jersy Supreme Court Order of January 10, 2006 was written and designed to protect the defendants rights to Due Process and Speedy trial.The order states (as relevant to my case as a first time offender):
“…Ordered that first time offender prosecutions involving the use of an Alcotest device shall proceed to trial based on clinical evidence when available, including but not limited to objective observational evidence, as well as relevant Alcotest readings…”
As I asked in another post, do NJ Supreme Court Orders carry any weight anymore? I would hope they do.
I was arrested in September of 2005, the New Jersey Supreme Court Ordered on January 10, 2006 the State to “proceed to trial”.
It did not say to wait, it did not say to withhold documents, it did not put a stay on prosecutions – It ordered the prosecution to “proceed to trial”
We all read and understand English , do we not? This is not like Bill Clinton trying to redefine the word “is”.
The order is extremely clear and I do not see any other interpetation of it. Do you?
I am a pawn in this political game that has 3 powerful sides to it, the State, the Judiciary, and Defense attorneys.
I hired an attoreny to protect my rights in September of 2005. The New Jersey Supreme Court further protected my rights with the order of January 10,2006
Why is it now September of 2007 and I have not had any trial or hearing yet on my case?
The ultimate responsibilty is on the State, the prosecution.
The State has failed in their responsibilty.
Remedy – Dismissal
Below is an copy and paste form the software house’s report sent to Judge King on August 28, 2007.Good news for everyone, even the State, as they can get back 7 million form Drager!
In a report released August 28, 2007, Base One determined:2
As a matter of public safety, the Alcotest should be suspended from use until the
software has been reviewed against an acceptable set of software development
standards, and recoded and tested if necessary. An incorrect breath test could lead
to accidents and possible loss of life, because the device might not detect a person
who is under the influence, and that person would be allowed to drive. The
possibility also exists that a person not under the influence could be wronglyaccused and/or convicted.
http://www.nj-dmv-dwi.com/pdf/AlcoTestReportBaseOne82707v2.pdf
Any new news or status with the Chun Case?
The decision below applies to my current case that will be 789 days old as of my next Court appearance in Novemeber of 2007.Farrel was charged with DUI and weaving in traffic, I was charged with DUI and carless driving.
The decision below can be applied to everything I have been talking baout in my case for a Speedy trial dissmissal!
Well, what does anyone think now?
Here is the decision in Farrell :
In balancing and applying the four factors of Barker, we conclude that the delay in completing this case, far beyond what was reasonable, was plainly excessive; and that the reasons for the delay were the prosecution’s clear inattention to its responsibilities along with the municipal court’s patent failure to prepare itself to try the matter expediously and shepherd it to resolution efficiently. These shortcomings were so egregious that no showing of prejudice is required in order for this defendant to succeed on his argument that, in fundamental fairness terms, he was denied his adequately asserted right to a speedy trial. Ibid. As a matter of logic and decency, given that the four factors of Barker call for a balancing of considerations, when the delay in concluding a trial is excessively long by any measure, as here, the burden upon defendant to satisfy the other factors is correspondingly diminished. When there is no reasonable explanation or justification for the excessive delay, speedy trial principles have been violated.
The failures of the process in this matter so far surpassed those previously described in the cases we have analyzed as to mandate a different result. We conclude that, here, the denial of fundamental fairness was so great, and the integrity of the judicial process so crippled, as to require that the convictions be vacated.
Reversed.
Here is the link to the entire appealate case:
http://lawlibrary.rutgers.edu/decisions/appellate/a6842-96.opn.html
Thanks for the information Jim!
You are welcome. I have been a nervous wreck here worrying and worrying about my DUI case.
I meet with my attorney on this coming Monday and I hope he can see it clear to make the arguments I want made.
The general tone of the Appealate Court’s decison in Farrell does apply exactly to my case.
“When there is no reasonable explanation or justification for the excessive delay, speedy trial principles have been violated.”
“the denial of fundamental fairness was so great, and the integrity of the judicial process so crippled,..”
Farrell did not even have a NJ Supreme Court Order to back him up like I do.
When the New Jersey Supreme Court wrote the Chun Order of January 10, 2006 ordering the prosecution of first offense DUI cases that involve the Alcotest to “proceed to trial”, I should have had a trial at least within 240 days of that order.
When we appeared in Court for our 8th appearance in April of 2007, my lead attorney told the Judge we still do not have discovery.
And I have made 2 more appearance after that without discovery completed!
The prosecutor is suppose to do his job and the Judge is suppose the “shepherd” the case!
Mr Saile, on the Chun case, are there going to be hearings in Judge King’s Court before he writes a report to the Justices?
Jim I am not quite sure. The time table presented says that Testimonial hearings are to be completed by 10/12/07. I would presume the Special Master would want to hear som follow up argument.
I just found out that testimonial hearings will begin on 9/17, running through 10/4 or 10/11
Jim
Below is an outline of what a typical infrared instrument validation package should contain.
Each and every Alcotest would need to be validated in its place of use, following a similar validation program as below, to be scientifically acceptable. Also, ongoing validation . IQ/ OQ/ PQ – The entire analytical scientific community in New Jersey would agree with me. It is just part of normal everyday business in the 1000′s of Pharma and Over the Courter comaponaies in New Jersey. It is just expected! It is 2nd nature!
Here is the outline:
The Validation package for these product lines consists of three documents; Validation Overview, Installation Qualification (IQ) and Operational Qualification (OQ). The package also includes a Validation disc to conduct tests on your instrument and/or accessories.
Installation Qualification
Guides you through the process of finalizing your instrument installation site, unpacking and initial configuration of your instrument and installation of your software. The document is a series of tests and procedures that you and the Varian Representative will work through together to ensure that all of the Varian recommendations and specifications have been met. The IQ provides you with a place to store your associated documents such as Test Certificates, warranties, and packing lists.
Operational Qualification
The OQ puts your instrument and software through its paces to ensure that all the components are correctly functioning. This ensures that the instrument and software are performing to the specifications provided by Varian, Inc.
In addition, the OQ gives you the scope to perform Validation tests on your instrument and accessories by accessing the appropriate worksheets on the Validation disc.
If you are looking to re-qualify your instrument, the OQ document is the perfect solution.
Refer to the ordering information for AA, FT-IR and ICP-OES (720/730-ES Series)
For Varian AA (SpectrAA versions 4 & 5 Base, PRO and CFR software), Fluorescence, ICP-OES (Vista-PRO) and UV-Vis-NIR instruments
The Validation documentation package for these product lines consists of a Validation Overview Booklet, a number of Validation Binders and a Certification Manual.
Binder 1
Validation Requirements
Guides you through setup of your validation plans, prior to installation. It also informs you of the tools and tests, special system features, documentation and the support that is available to assist you.
Validation is explained in relation to statutory obligations and quality assurance.
The validation process is then broken down into major chronological phases. For each phase, the tasks and the responsibilities of vendor and user are clarified.
The validation activities cover testing of each system component (instrument, apparatus, software and computer) as well as the system performing as a whole.
This section can be obtained separately. Refer to the ordering information: AA, Fluorescence, ICP-OES (Vista-PRO) , UV-Vis-NIR
Validation of Design and Development
Provides you with information to assist in demonstrating that the instrument system you have purchased is the correct choice for its intended purpose. It covers:
System design and development (including development history)
System testing procedures
Operational and functional specifications
Development of the instrument and Varian-manufactured accessories, including descriptions of the hardware, firmware and accessory development processes
Manufacturing processes, including testing
Software development, including details of the software development life cycle and the procedures for test plans, change control, archiving, maintenance and upgrades
User documentation, development and maintenance procedures
This section can be obtained separately. Refer to the ordering information: AA, Fluorescence, ICP-OES, UV-Vis-NIR
PQ/OQ Checks Available
Outlines the tests and checks that are available for each system component, as part of Operation Qualification (OQ) and Performance Qualification (PQ). It also describes special system features that assist your method validation and other GLP obligations.
Binder 2
System Description and User Identity
Provides forms to define the system purpose and identify the equipment and software (such as instrument name, model and serial number).
Depository for the system interconnection diagrams, unless indicated elsewhere.
Installation Qualification Records
Provides checklists covering all aspects of pre-installation and installation. These should be completed prior to and during the installation process.
Store the copies of the Customer Test Certificate, CE Declaration of Conformity, delivery docket, packing list and customer order in this section.
Operation Qualification Records
Provides checklists relating to the operation of the system and its components, prior to routine use.
Store OQ test results in this section.
Plan for Verifying and Maintaining Performance
Store your Performance Qualification plans in this section. Note that developing and adhering to this plan is your responsibility, as it must be tailored to you requirements.
Details of maintenance and training plans can also be inserted here.
Log of Events
Provides log sheets where you can record events covering the system’s performance history.
Performance Qualification Records
Insert the results of the tests used to verify the performance of the system, including tests performed using any instrument software Validation application, or whole-system tests.
Service and Maintenance Reports, and Contracts, Policies and Warranties
Store any reports related to the service and maintenance of the system and any warranty and service agreements related to the system in this section.
Customer Support
Record the contact details of your local service organization.
Use the Software Performance Report to report any software problems encountered.
Test Certificates
Where automated testing is not available, Test Certificate templates are provided for recording test results.
Certification Manual
Instrument Operation/Performance Qualification Test Details
Provides specific details of the tests that verify the performance of the instrument itself. Expected results are included.
Please let me know if this is correct,
A BAC reuslt could only supply exculpatory evidence, and that the only value of the BAC number has is related to the Federal Highway Transportation Act, which provides extra highway dollars for those States which have a DUI statute that includes a DUI limit of 0.08?
Is it true the State is fully capable of sustaining a DUI conviction without a BAC number?
I am completely confused on this issue.
I have read some reports that say the field sobriety test is only capable of telling if person has a BAC of 0.10, but I suppose there are also experts that will say a Field Sobriety test can assure a person has a BAC of 0.08.
What is the real deal? What is the actual truth?
I would say maybe the State is about half way there when it comes to documentation, as I am assuming that they have the serial numbers for each individual piece of software in each Alcotest instrument, and things like that.
However, I would say that the State is only about 10 percent of where is needs to be on actual validation testing for each instrument and documentation of it.
I understand there is a catch 22 involved in this. If each Alcotest instrument is validated to the point I am describing, it will be hard to discount any result if the State does it correctly. However, there will be more things to look at and more things to challenge.
Also, the actual stop, field sobriety test , and arrest, are strong evidence for the State, which must be overcome first, before the number is involved.
Actually, I am very confused on this point. If the stop, field sobriety test, and arrest, are all in order, the actual BAC can only serve an exculpatory evidence, if it is below the limit, as I see it, and provide nothing more for the prosecution, as they already have arrested a person and impounded the vehicle. I hope to get an answer from you on this point , as the prosecutor in my first offense case involving the Alcotest, that will be 789 days old as of my next Court appearance, wants to finally go forward on observation evidence alone.
I think I understnd DUI prosecutions now, as they relate to field sobriety testing and breath testing
1) If the State goes on the per se case, the breath number,and proves only resonable suspician at the stop, the lesser of the 2 proofs, and submits the BAC number to convict, then the defense presents evidence to umdermine the BAC number, the defnse wins because the State did not prove the higher proof on the observational side.
2) If the State goes on observations only, they need to prove the higher proof beyond on reasonable doubt based only on the Stop and field sobriety obsevations.
3) I would think in most caes the State will go for both proofs, the higher proof on the stop side and the per se case , that way, even if the number is beat by the defense, the State would have shown enough evidence to convict on observations alone. No?
This is why any evidence the defense has about the stop is critical. For example, If a person was questioned by a police officer 5 minutes earlier, up the road, in another town, and the officer did not smell alcohol odor or think the defendant was drunk, and let him get in his vehicle and drive away, it is important to get this officers statement! A defense attorney who blows this off and does not even try to get it, is acting in a negligent manner!, in my opinion.
Any information surrounding the stop and field sobriety is critical to winning a DUI case for the defense. Also, if the defense can disprove probable cause they State will not even get to the breath number.
mr saile, concerning your comment nuber 2 of july 2007 318pm-
2 appearances ago, the 13th appearance, we got the prosecutor on record saying he has felt he can make the case on obersevations alone from the begining.
so, if your point of vierw is correct, and i am not sure i agree with it totally, the prosecutor hung himself on record, because he never initiated a trial.