A Surrogate Lab Technician Does Not Satisfy the Sixth Amendment Confrontation Clause in Criminal and Quasi Criminal Cases in New Jersey

April 29, 2011, the Appellate Division in State v. Rehmann held that the Confrontation Clause of the United States Constitution requires that the State produce the person who actually performed the forensic test, or, as in this case, the person who witnesses the test being performed, and certify that all the proper steps were performed, before an laboratory report will be admitted into evidence.

In this case the State proffered the testimony of a State lab technician in a DWI blood case for the purpose of presenting the defendant’s blood alcohol level (or BAC) was above the legal limit. However, the State in this case did not actually produce the technician who performed the gas chromatograph test but rather his supervisor who witnessed the test being performed. Under these circumstances the Court ruled that the supervisor was not a surrogate witness and because he actually witnessed the proper procedure being performed could accordingly testify without violating the defendant’s Sixth Amendment right to confront witnesses against him.

Although this was a narrow ruling limited to the facts of this particular case, this case however reaffirmed the well stated rule of law in New Jersey that any lab report is inadmissible hearsay without the testimony of the forensic lab technician.

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

Tel. No. (908) 354-7706

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Police use of the Phenolphthalein Test a/k/a Kastle-Meyer Test to Determine the presence of Blood Not Admissible in New Jersey.

On May 13, 2011 the Appellate Division in State v. Pittman ruled that Phenolphthalein Test, a/k/a Kastle-Meyer Test is inadmissible to prove the presence of blood.

In this case a police detective took a cotton swap from the defendant’s clothing to determine whether the defendant’s cloths had the presence of blood. The Court ruled that there is no evidence that this test was generally accepted in the scientific community. Accordingly, although this test is useful tool in a preliminary investigation of the presence of blood, such a test is not admissible in court, without the testimony of an expert witness by the state. Although some states have allowed the admissible of this test it is based on specific jury instructions which concede that false positives can be triggered by potatoes, rust, bleach, red beet and tomatoes, as well as other common substances.

For a full discussion of this test by the State Police Forensic Laboratory go to:

http://www.state.nj.us/njsp/divorg/invest/Criminalistics.html.

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

Tel. No. (908) 354-7706

CriminalDefenseNJ.com

Beating the Municipal Court Traffic Ticket Takes More than Showing Up for Court

All to often attorneys who specialize in representing motorist charged with a moving violation are to quick to recommend that their client plea to N.J.S.A. 39:4-97.2 (unsafe driving), which is a no point ticket, but carries a fine with surcharges in the amount of $450.00, depending on the municipal court judge. Also, many insurance companies consider that moving violation in determining insurance rates. Further, that ticket can only be used twice, and a third conviction for this offense will result in four points being assessed against the motorist.

However, with a little work, diligence and multiple court appearance it is often possible to have the moving violations dismissed totally.

The first thing that the attorney must do in every case is request discovery. If it is a speeding case and the police officer contends that the motorist vehicle was paced the prosecutor must turnover all discovery on the police vehicle to determine whether the odometer was calibrated properly to record a correct speed. In addition, with radar cases all radar calibration must be turned over to the defense. Often a careful review of the discovery reveals that much of the required radar calibration material is either missing or unavailable.

Specifically, with all speeding summons by New Jersey State Police in which the Stalker Lidar Device was used our New Jersey Appellate Division in State v. John Green, has held that the device is not admissible to gauge the speed of an automobile because it has never been specifically tested by the New Jersey courts to be scientifically accurate, and accordingly, all such speeding ticket issued on the basis of that machine must be dismissed.

In addition, an experienced attorney in this field will have some understanding of norms and local customs of the specific court he or she is before, and be able to give the motorist some good advice, and hopefully good results in the ultimate outcome of the case based on the attorneys experience and reputation in that court.

For further information in beating the municipal court traffic ticket consult the Law Office of Vincent J. Sanzone, Jr., Esq., CriminalDefenseNJ.com

Sanzone Firm, P.O. Box 261, 277 N. Broad St. Elizabeth, NJ

Tel: (908) 354-7006

Motion to Suppress, and the Smell of Raw or Burnt Marijuana

Law Enforcements often reliable ace in the hole for probable cause: “I Smelled Raw or Burnt Marijuana in the Vehicle”, appears to be no longer sufficient for probable cause and in one case the court suppressed forty pounds of weed.

In State v. Ender Pompa, 414 N.J. Super. 219 (App. Div. 2010), the New Jersey Appellate Division gave solace to criminal defense attorneys in New Jersey attempting to defend the “plain smell” marijuana cases, in which the police officer after conducting an illegal search and discovering marijuana in a motor vehicle later claim that the reason for the search was that the officer had smelled raw or burnt marijuana in the vehicle during the motor vehicle stop.

In these types of cases, and the subsequent motion to suppress evidence it was virtually impossible to cross examine the officer to disprove whether he or she did in fact smell anything, and present any evidence that the cop was fabricating a justification for the illegal search.

However, in the Pompa case, the Appellate Division gave a remarkably good weapon in the arsenal of defense attorneys when it held that the “plain smell” of raw marijuana in the sleeping compartment of a tractor was insufficient to allow the New Jersey State Trooper to search that compartment, and that a search warrant was necessary before a search could be done.

This case is of tremendous importance because now it will be more difficult for police officers to fabricate an excuse to search an automobile without a search warrant, and should finally close this loophole for police officers whom routinely disregard the defendant’s Constitutional rights and the Fourth Amendment protections against unlawful and unreasonable searches.

For more information regarding your rights in a criminal case and defending the serious drug and narcotics case in New Jersey criminal courts, consult the Law Office of Vincent J. Sanzone, Jr., at CriminalDefenseNJ.com

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

CriminalDefenseNJ.com

YourCivilRights@gmail.com

Tel: (908) 354-7006

Cell: (201) 240-5716

The Motion to Suppress Evidence and Driving While Intoxicated Charge

In New Jersey most of the defenses that are available in other States have long been eviscerated by our courts in the Garden State. Accordingly, because of this trend and the difficulty of beating a DWI charge, it is more important that the defense attorney handing these types of cases be aware of every driver of a motor vehicle in this State from being pulled over for reasons which our courts have ruled impermissible.

Specifically, in New Jersey a driving motorist can only be pulled over if a police officer has reasonable suspicion that the driver has been engaged in a violation of law, or if a motor vehicle infraction by the driver is witnessed by the police officer. In addition to those circumstances, our courts have allowed police officers to investigate and/or stop motor vehicles under what is called the “community caretaking” exception.

On May 5, 2011 the Appellate Division in an unpublished opinion, State v. Brackin, ruled that a motorist who paused at a green light for approximately 10 seconds before proceeding through the intersection was not long enough to trigger the police officer to effectuating a motor vehicle stop of the motor vehicle under the community caretaking exception. Both the Municipal Court and Law Division judges denied the defendant’s motion to suppress the evidence obtained from the automobile stop. However, the Appellate Division reversed the DWI conviction holding that the 10 second delay was not sufficient to trigger the stop.

In ever DWI case the first line of defense, and often the only line of defense is the motion to suppress evidence.

Attorney Sanzone has been successful in many of his cases in which this was a viable issue, and has had many cases dismissed because of the suppression of evidence and various types of contraband.

Law Office of Vincent J. Sanzone, Jr., Elizabeth, N.J. 07207

Tel. No. (908) 354-7006; Email, yourcivilrights@gmail.com

CriminalDefenseNJ.com