Sequestering a Breathalyzer Expert barred in DUI Trial

On February 17, 2009 the Appellate Division in State v. Popovich, A-2862-07, found that the Municipal Court judge committed an error by ordering the the sequestration of defendant's expert. Sequestrating a witness is the act by which a Judge expels a witness from the Court room so as to prevent that witness from hearing the testimony of a witness under examination. In other words, prevents the sequestrated person from hearing testimony given on the stand in court. In the matter of State v. Popovich,

Defendant was stopped while driving on August 12, 2007, in Lake Como. He agreed to take a breathalyzer test, and the results showed a blood alcohol level of .13 and .14. Defendant was arrested and charged with driving while intoxicated.

Defendant, together with his attorney, appeared on November 20 in the Lake Como Municipal Court to defend against the charge. Defendant's attorney had retained the services of an expert to assist him in the defense. Following argument, the municipal court judge granted the request of the municipal prosecutor for a sequestration order and directed that defendant's expert was subject to that order. The municipal court dismissed the objections of defendant's attorney that such an order would hamper his ability to cross-examine the prosecution's witnesses. The municipal court judge indicated that defense counsel, if he felt the need to consult with his expert before proceeding to cross-examination, could either take accurate notes of the testimony or order a transcript of the relevant testimony and then consult with his expert. The municipal court judge relied upon State v. Lanzel, 253 N.J.Super. 168 (Law Div.1991), which held that expert witnesses are as subject to sequestration as lay witnesses.

Faced with that ruling, defendant entered a conditional plea of guilty, waiving any jurisdictional defects and any question of jeopardy. Defendant agreed upon the record that if the sequestration order were reversed in the Law Division, the matter would be remanded to the municipal court for trial, and the prosecution would be free to seek to establish either a per se violation through the Breathalyzer readings or a violation based upon the arresting officer's observations of defendant. All parties agreed that the purpose of proceeding in this fashion was to permit defendant to appeal the sequestration order to the Law Division.

The Law Division judge, after argument, found that the municipal court judge had not abused his discretion in excluding defendant's expert, although he noted that he would have exercised that discretion differently. He entered an order finding defendant guilty of violating N.J.S.A. 39:4-50. Defendant now appeals to this court, arguing that it was error to order the sequestration of his expert. We are compelled to agree."

The practical outcome of this recent ruling is that expert witness in DUI cases can directly challenge the reliability of the state's testing techniques. Basically, if the state introduces facts and conclusions that were, to some extent unanticipated by defense or were unknown prior to trial, the defense can rebut same through competent scientific based testimony.

NEW JERSEY STATE POLICE TICKETING?

I just received an interesting email from a colleague that i felt was worth sharing. PLEASE BE ADVISED THIS STATEMENT IS UNTRUE, IN THAT, THE STATE POLICE WOULD NEVER MANDATE TICKETING AS SOURCE OF INCOME. With that said, i felt this email was noteworthy strictly as a cautionary tale to remind us to SLOW DOWN!! So here is the email:

STATE POLICE - NJ TICKETING

Here's the latest NJ State Police Initiative (Radio Station 101.5 FM confirmed this info).

Starting today, New Jersey will launch a 30-day speeding ticket frenzy. The state estimates that 9 million dollars will be generated in speeding tickets. One million dollars will go to pay state troopers over-time.

There will be 50 state troopers on duty at all times patrolling the 9 main intersections and highways as follows:

I-295 North and South,
I-95 Jersey Turnpike North and South
I-80 East and West
I-287 North and South
I-78 East and West
I-195 East and West
I-280 East and West
Route 130 - North and South
Garden State Parkway - North and South

5 MPH above the limit can justify a ticket and every state trooper is supposed to pull a car over and write a ticket every 10 to 20 minutes.

They have issued 30 brand new unmarked Crown Victoria cruisers and are bringing in all of their part-timers on full time. If you work in NJ, NY, DE or CT, you will probably be on one of these highways.. So, please be on guard and drive safely!

The price of a violation to show your driver's license, registration or insurance card at the time you are stopped is $173.00. (Keep these documents in your car) . And the fine for not having all three documents is $519.00!

The fine for hand-held cell phone is $180.00.

LTI Marksman 20-20 Laser Speed Detection discussed

A client came into my office today inquiring as to the validity of the LTI Marksman 20-20 Laser Speed Detection system. My answer to his question was, Yes but that is not the end of the story because its reliability can be challenged. In 1998, the NJ law Division case of Matter of LTI Speed Detect System, 314 NJ Super. 233 (Law Div. 1998) held that the LTI Marksman 20-20 Laser Speed Detection system (hereinafter, Laser Gun) may be admitted into evidence in a speeding case however, as a prerequisite the State must show:
1. Police officer had appropriate training
2. Officer performed the pre-operational checking procedures.
In addition, it is imp0rtant to understand that the Laser gun (according to the opinion) is reliable in measuring speeds within 1,000 ft thus anything outside of 1,000 ft should be challenged. Moreover, if at the time the speed measurement was taken it was raining or snowing then the State MUST introduce expert testimony demonstrating the reliability of the reading in those conditions.
Well, what does that mean to u? If you incurred a speeding ticket in the rain or snow (which is not unusual this time of year) and the device used by the police officer to measure ur speed was the Laser Gun cited above then u can collaterally attack the ticket (since most municipal prosecutors will not take that extra step in retaining an expert). BTW to substantiate ur argument do not forget to bring with u a copy of the weather report for the day in question

Appellate Division completely misinterpreted the unsafe driving statute

The New Jersey Appellate Division decision, Patel v. New Jersey MVC, the Court for the first time, interpreted the the forgiveness component of NJSA 39:4-97.2, unsafe operation of a motor vehicle. NJSA 39:4-97.2 is a statute promulgated by the nj legislature that permits individuals to downgrade traffic tickets bearing motor vehicle points to a NO POINT TICKET (unsafe driving). The statute was clear until now. The Appellate Division's decision that the five-year time period between offenses does not apply to third offenses, regardless of how long a time goes by between the 2nd and 3rd offense made a mess of the statute. The Court indicated that the point forgiveness part of the statute only applies when there is a period of 5 years or more between a 3rd and subsequent offense. Thus, a first and second offender are not assessed points. A third offender will receive 4 points. Thereafter, if 5 years go by following the 3rd offense, the defendant may once again plead guilty without the assessment of points. THE COURT GOT IT WRONG!! The only thing this decision did is to complicate an already clear statute. Basically, you only have two shots at the unsafe driving statute. If you plead to it a third time, regardless how much time as past since your last plea, then u will be assessed 4 motor vehicle points.