NJ DUI-DWI drunk driving breath Alcotest Update.
Sep 17th, 2007 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving)Recent news from the attorneys that are directly involved with the NJ Alcotest hearings in the NJ Supreme Court:
“On Monday September 17, 2007, a new series of hearings will begin before Special Master Judge Michael Patrick King, P.J.A.D. (ret.) in the on-going Alcotest litigation in State v. Chun. The hearings should last between three and four weeks.”
Master Judge Michael Patrick King will then draft a new report with his new findings from the recent hearings and deliver his report to the NJ Supreme Court Justices by October 28, 2007. The Justices may then hold oral arguments in the NJ Supreme Court if they wish or make their rulings directly from the Judge King’s reports.
Hopefully this matter will be resolved by years end. Tens of thousands of NJ DUI-DWI suspects await the Supreme NJ Court’s final ruling on the new NJ DUI-DWI drunk driving breath test. Depending on any modifications to the currently used machine, thousands of individual prosecutions may have to be withdrawn if the Alcotest DUI-DWI breath test used in NJ was unfair and/or not scientifically reliable.
The author of this Law Blog, Bucks County PA & Mercer County, NJ criminal attorney, 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, Morrisville, Yardley, New Hope, Holland, Washington Crossing, PA, and other Bucks County courts. We handle DUI cases in Philadelphia, Bucks, Chester, Delaware, and Montgomery County, PA. We are located just outside of Philadelphia in lower Bucks County.
If you read the Base One report, the software house who conducted the investigation for the defense, you will see they have said that the Alcotest software can replace results at random, putiing totally false results onto the report.
I feel they are probably software experts and their findings will hold up under scrutiny in the testimonial hearings.
There is still the possibility the State can move ahead in many cases without a number and try to provide evidence beyond a reasonable doubt based on observations of the police.
I have no doubt that in some cases the observational proof presented by the State will meet the burden of proof reqwuired for a conviction.
I have no idea what percentage this may be. It would be extrmely intresting if we had a list of all cases pending sentencing or trial and the details of each, and try to make sense of how many cases fall where.
I would venture to say however that in over 99 percent of the cases, probable cause does exist, and even though those cases may be thrown out because a Per SE case can not be made, and the observation evidence is not strong enough to convict, the defendant will not be able to sue for false arrest.
I kno win my case, tthe observational evidence will not be enough to convict. The more things I look at the better I feel.
Today I looked at the “DWI Detection Guide provide by the U.S. Department of Transportation”
There is a list of 20 things in the guide that are used by police to detect a DUI driver at night. None of the things on the list are in my case.
I would really like to know how many first time offenders have been waiting for a trial like I have. I have talked to several attorneys in the past few months all over the State, and all have been trying first offense cases.
My case will be 789 days old when I go to trial in November and I know the State was orderdd to proceed to trial on January 10, 2006!
It is probably possible that there are a number of people in my situation and the Law Divison and the Appealate Division, and the NJ Suprmeme Court are going to be in a difficult position based on “Barker”, in those specific cases.
I am just hoping the Law prevails and they do the right thing as to the Law.
Jim
Here is the Nj Supreme Court Oral Argument Schedule.
If there are oral argumentas to be made it looks like the earliest could possibly be November 13th 2007. I am assuming this will not be possible as the Justices will need ample time to review the software reports as well as Judge Kings report, and with the holidays coming up and the severe case load the Justices have ahead of Chun, I do not think they will get to oral arguments until later in 2008, unless they move it ahead of every case.
They have arguments scheduled for january, Feb, march, April , and May
http://www.judiciary.state.nj.us/calendars/sch_0708.htm
September 10-11
24-25 Monday & Tuesday
Monday & Tuesday
October 9-10
22-23 Tuesday & Wednesday
Monday & Tuesday
November 13
27-28 Tuesday
Tuesday & Wednesday
January 7-8
22-23 Monday & Tuesday
Tuesday & Wednesday
Another point.
The attorney that is acting as an impatial helper of the Court, stated in the Aril 5, 2007 arguments that the Court should take slow and measured steps.
The software was tested. That is one step. Even if there is hope the software can be saved, the hardware still is in question!
The software houses did not check anything on the hardware.
This is additional testing that will need to be performed most likely, if the software can be somehow salvaged out of these testimonial hearings.
This is my main argument – the hardware – from an analytical chemsitry point of view.
If the hardware goes unchallanged in the Chun case, it will still be out there for a defendant like me to appeal it based on what I know a typical analytical instrument should do and provide!
Here is a quote from the summary of the 2 reports. I am not sure who wrote the combined summary
“Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.”
How is Judge King going to have the hearings be able to look at 19,400 errors in 4 weeks.
Assuming they look at each error independantly, as best they can, and work 5 days a week for 4 weeks, 20 days, it would be a detailed description of 970 errors per day.
No Courts hear terstimony 5 dyas a week, I belive Monday and Friday are set aside for motions and other things.
Judge King has an overwelming task ahaead of him and should go to the NJ Suprmeme Court for more time.
Mr. Saile,
Can you provide me with some information on police officer testimony and “memory”.
My DUI case, based on obervatons only, will go to trial on Novemeber, 789 days out form the arrest.
I am just starting to research information on memeory, and testimony based on memeory. I am finding a lot of articals on it.
It is really a very intresting subject. I know the US Supreme Court has had some rulings on pstycological experts trestifying on memeory issues.
I feel though it is important for me to learn as much as I can about “memory”. i twill apply directly to the credibility of th epolice officer inmy case.
The case against me is extrmely light on paper, and I shoul dbe able to win without even going after the memeory, but why leave it to chance.
If you have any information concerning “memory” or can lead me to infoirmation, please do so.
I need to get educated on the subject so I can educate my attorney.
Thnaks
Jim
The police officer can always refresh his or her memory before and even in some circumstances in court and during a trial.
I do not have any “information” on memory per se. It is you lawyer’s job to test the memory and point out any deficiencies in the police officers memory in any DUI-DWI trial.
In your case, which you have told us is now based only on “observations”, it will be very difficult for the NJ police officer to remember specific details, other then his or her notes and DWI report.
Hopefully your case can be thrown out of court due to the issue of prosecution’s violation of your right to a speedy trial.
Well, any notes the officer has would of needed to be turned over in discovery, correct? There are no notes in discovery.
Furthermore, in eviewing the 6 page police report, on page 2 of 6, section 23 “examination” the choices to check are chem breath test, breath trst rtefused, observation, doctors examinatuon, blood trst, narcotics, –
Only Chem breath test was checked. This m,eans I was charged with DUI based only on the chem breath test, and not on obsevations!
I do not think my attorney has a PHD is memory psycology. WE would need to hire a an expert phd memory psdycologisdt and oput the officer through rigorous testing to see how his brain works. It wil be intresting to see what the Judge will say to this.
Also, I am not only going fo the Barker SArgument, I am going for “contempt of Court” charges to be brought against the prosecutur for failing to obey the Nj Suprmeme Court Order of Jan 10, 2006.
I want Lane Miller in jail..
Mr. Saile,
I am sure you are aware of the Rules of professional Conduct for New Jersey Lawyers. Below is one of the relevant part of the rules in my case
RPC 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer
(a) A lawyer shall abide by a client’s decisions concerning the scope and objectives of representation, subject to paragraphs (c) and (d), and as required by RPC 1.4 shall consult with the client about the means to pursue them.
If I want the “scope” of my representation to include the officer’s memory, I am entitled to it. Especialy since we are not going to trial now for 789 days and counting.
Police officers are people like you and me and their ability to remember things are no better then that of any person at random.
Here is a link to a grat memory report i found on the internet.
http://mcadams.posc.mu.edu/zaid.htm
If we do not go for the psycologist to test the officer in a clinical setting, I am thinking we should at the very least get copies of his last 300 DUI arrest reports and question him on the contents of each.
Mr. Saile, your statement above “The police officer can always refresh his or her memory before and even in some circumstances in court and during a trial.”
I do not agree with that satatement at all. Officers can not always remember. They can pretend to remmeber. Keoping long term memory for specific details involves a daily rehearsal of the details in one’s brain. In my case, the officer would have needed to rehearse the information in his brain on a daily basis for 789 days! We both know he did not do this. Furthermore, interferance to the long term memory of my stop and arrest is prevalant in my case, as the officers have experienced many DUI and stops.
Long term ememory is often recalled in the brain by through 2 processes. One, the officer being in the same ” emotional state” at he was at the time of the arrest, and TWO, the officer being in the same physical environment as the arrest. Neither of these will be the case during my trial.
Read the artical and maybe do some research. It is really very very fascinating stuff.
Mr. Saile, I think you are right about the officr legaly being able, allowed, to refresh his memory in Court. By reading his report an houir or so before before the trial and even on the witness stand.
However, there are many areas of concern for this type of testimony. One beingm, the only things included in the arrest DUI report will be harmful to the defense, and no exculpatory observations are made on a DUI arrest report.
The best an officer can do for a defendant is to intentionally make a vauge report and make alot of errors on it.
In my case, the report is extrmemly vauge (spelling?) and there are at least 12 erros I can find on the 6 pages of the report.
Legaly, there is no question you are right about officer testimony, however psycologicaly, we all know that long term memory is interfered with over time with short term memory, and the accumulation of memories.
I once saw a DUI Trial in Freehold Boro, I think I may have metioned this in another post on here, in about , umm, 2003 maybe. I was in court for a routine traffic ticket and Judge Bloom told the people to hang on, that he needs to get this trial in as it has been 8 months.
Well, I sat and watched along with the rest of the galllery.
In this case, the trial had been started 8 months earlier and the offifer had testified to some things. I am not sure why there was an 8 month delay to the cross examination.
However, the defense attorney totally confused the officer on what he had testified to 8 months earlier, even with the officer having read his testimony from 8 months earlier, just prior to taking the witness stand again.
The defense won the case on a few areas. One being probable cause, as although the defendant was in Freehold Boro at rt 33 west, turning left onto south street, he had pulled over into VANs parking lot in Freehold Township and was then appraoched by the freehold “boro ” officer, and even though Freehold Township was called to the scene, the Freehold Boro officer made the arrest.
The other area the defense won on was on the officers report and previous testimony. Ther officer was unable to repsond to the defense questuions with the “right” answer and the officer totally said the opposite on amny points he had already testified too under oath. This led tro reasonable doubt as well.
I wish I knew this defense attorneys name. I know he is a life long resident of Freehold Boro, probably in his mid 40′s of 50′s.
He did such a great job.
My case will be 26 months. Not 8 months.
I think it was important that we were allowed the pre trial miranda hearing 2 years ago when we asked for one, just for the reason of getting some officer testimony on record, so we could later examine him on what he said.
Judge Webber never even responded to our rewuest for a pre trial miranda hearing.
I know that my rights to Due Process and Speedy ztrial have been violated, as well as Lane Miller breaking the LAW by nit folloliwng the clear and direct order of the NJ Supreme Court.
I am continuing to stress and think about my case.
JIm
I just wanted to know the latest in the Chun case. What is transpiring right now, and will there be a decision before the end of this year. It is possible that the case could take at least another year or two? It seems as though it has been going on forever.
Matt,
Testimonial hearings are going on right now as we speak. They may last 10/4 or 10/11.
I wish it was televised! I would love to see what is going on in Judge King’s Court.
After the hearings, Judge King has 2 weeks to write a report to the New Jersey Supreme Court.
The NJ Supreme Court will need time to read the report and probably have Oral Arguments I would most likely think.
There is a chance that the 19,400 errors found in the software will be so overwelming the Court will have no choice but to through out all results. It is just what I think could happen.
On the other hand, you never know.
My case is pending since September of 2005 without as much as a pre trial miranda hearing , let alone a trial. Totally against what the NJ Supreme Court Ordered to happen on January 10, 2006.
I have made 10 appearances so far and nothing has happened in any of them , but I get sent home!
Personally, I have the ability to raise all kinds of scientific arguments that the Chun Defense team has not raised as far as I can tell. I am an expert analytical chemist and I understand what instrument validation means, entails, and what is needed to validate each instrument individualy.
Anyway, If the Chun defense loses, there is a whole other set of arguments to go up against the Alcotest.
I mean, for God;s sake, Drager will not even tell us how much light is transmitted/absorbed for a given concentration of ethanol.
It is really not a good situation in New Jersey, where Pharamceutical companies are held to the highest standards by the FDA, and yet the State is trying to let Drager get away with this bogus, bs!
I think this is really interesting.
Below is a response to what an attorney wrote last night, to me, on another blog site, about my pleading not guilty in my first offnse DUI case
Unkown New Jersey Attorney wites::
“If you had a drink or two and drove your car and got stopped be a man and own up to it. Take your punishment and be done. I believe you are still in the denial stage…..think about it, is everyone out of step except you. By the way the posting regarding hanging yourself and having the prosecutor cut you down is pure hogwash and really a cheap shot. Also if you sent me 74 e-mails in just a few months, I would petiion the court to be relieved and let you take me to fee arbitration. Its no wonder why some of your posts were deleted.”
My Response
The problem with your statement is that you do not understand that we can not even get in front of the Judge to say anything, me or my attoney, 10 appearances theough tthew first 698 days, 11th appearance coming up on the 789th day!The New Jersey Suprmeme Court Ordered the Satte to “Proceed to Trial” on January 10, 2006!!!!!
Not everyone chargeds with DUI is guilty, that is another thing you do not understand!
AS my attorney told the Justices ” ..there have always been DUI trials in NJ and there must continue to be”
I have RIGHTS!
My rights to Due Process and Speedy trial have been violated. Judge Webber has completely refused to Shepherd the case and Lane MIller is in contempt of the NJ Suprmeme Court!
We asked for a Miranda hearing in Ocotober of 2005 and never even recieved an answer to it, let alone a hearing!
All Lane Miller does is prevent defendants from exercising their Rights to Due Process.
As Far as my attorney goes. Read the Rules of Professional Conduct!
I have every right to communicate with my attorney and ask questiuons. My attorney has the responsibility of answering them!
Furthermore, my attorney has the responsibility to abide by the Scope and Objectives that I want i my case!
I out 100 percent of the blame on Lane Miller though!
The stress and anxiety that has overwelmed my life is a direct result of Lane Miller’s vicious treatment in my case.
If I do get overcome completely and hang myself on the court house lamp post, I do hope the mkae Lane Miller cut me down!
Listen, I have sent other attorneys DUI questions over this same time frame, and even Mr Levow will respond to me at 6am in email with answers.
lso, if you read the Rules of Professional Conduct, you will see that I have done nothing to warrant my attorney being relieved from my case.
All I want is the defense I paid him for!
You seem to have no understanding about the stress and anxiety a DUI arrst can have on a person. Let alone now over 2 years and still unresolved.
You read some attorneys websites, like Mr Levows, and others, they all convey an understanding of a defendants plight!
I am innocednt and I am going to fight this wil my last dying breath. That is what Lane Miller has done to me!
You know, by stating what you are saying about being out of step and all, you are even undermining the NJ Suprmeme Court, The New Jersey Constituion, The United States Constitution, and you are even degreading all US Service Perseonel who are and who have faught and dies for freedom!I think you are a disgrace to the legal proffession!
Every Justice on the New Jersey Supreme Court belives the “Alcotst” hearing and Trial going on at their direction is IMPORTANT!
They even appointed a Special Master!
You would have all the CHun defendants, including Jane Chun, plead guilty right now, and have the whole Alcotest challange dropped. You are so wrong in your thinking!
The God Dam Alcotest instrument replaces rssults at random!!!!!!!!!
Have you not even read the software house’s report?
With all that being said…
Nothing can change the fact that the New Jersey Suprmeme Court Ordered the State to “Proceed to Trial” in alcotest cases, on January 10, 2006, and that Order stands to this day!
There is absolutley no reason for the State to have made me suffer for now over 2 years with ever incresing stress and anxiety.
I can not even get a pre trial miranda hearing!
This is not justice! This is not the United states that millions of Americans have faught and died for!
Not only bullying me out of the court room on each appearance , but bullying every defendant in Old Bridge Court out of their Rights to Due Process!
Lane Miller even threatened to have people in the gallery “SHOT”! This is an outrage beyond belief!
But it is all true!!!!
Are there any more updates in the Chun case? Is it now at the supreme court?
Matt:
I have not heard anything yet.
Why is there not talk of Chun? I agree with Matt, what is going on with the case? It seems that there is no timetable with the supreme court. Looks like it is going to leak into 2008, and perhaps even into 2009. How is this legal?
I do not know when the Chun Argument (if any) before the NJ Supreme court will be scheduled.
Is this legal? There may be speedy trial arguments that the NJ DUI-DWI defendants may have.
As a policy issue, I cannot imagine that NJ courts would rule in a defendant’s favor on the speedy trial argument because tens of thousands of NJ DUI-DWI suspects may be let off the hook.
Mr. Saile, will it not be nearly immpossible for the State to explain their failure to follow the NJ Supreme Court Order that ordered them to proceed to trial?
What excuse can they possibly have for not obeyingthe ORDER?
Local courts may not dismiss based on it, but they are also culpable in the failure, the law division and the NJ Supreme Court must investigate why there has been widespread contempt for their order!
Mr. Saile, are you saying, lets make this up,
If a police officer wrongly shoots one person, it is actionable on the wrongful shooting, but if he open fires into a crowd at a concert and kills a thousand people, it is not actionable because many people were affected?
That doesnt make sense.
Just becuase the rights of possible thoudsands of people were violated, does not make it right that the rights of an individual were violated!
The New Jersey Supreme Court Orderd the prosecution ( the State) to “PROCEED TO TRIAL” JUST IN CASE ANYONE DIDNT KNO WWHAT TO DO!
IT IS AN ARGUMENT I AM GOING TO MAKE OFFICAL ONE WAY OR ANOTHER!
You got to understand one thing with this whoile mess,
What the WHOLE litigation AND DELAY legal was the NJ Supreme Court Order to “PROCEED TO TRIAL”.
tHERE WOULD BE NO DELAY , SHOULD HAVE BEEN NO DELAY TO PROCEED TO TRIAL BY THE STATE AFTERT THIS ORDER.
wHAT IS THE PROBLEM WITH THE STATE TRIALING THESE CASES, THEN WAIT FOR CHUN TO END FOR A RELIABILITY HEARING, IT IS WAHT THE COURT ORDERED, WHY HASNT THE STATE FOLLOWED THIS ORDER?
The New Jersey Supreme Court on January 10, 2006 made a delay in sentencing legal, but made any delay in having a trial ileagal!
They ordered the Sttae to “proceed to trial”
How is the State going to explain widespread contempt of this ORDER????
Well, that is exactly what I am going to find out eventually!