Posted on Tue, Jun 04, 2013 @ 04:13 PM
Alcotest, the drunken-driving tester that replaced the Breathalyzer in New Jersey just five years ago, will soon be phased out of use, the state attorney general says in court papers.
Because the machine’s manufacturer, Draeger Safety Diagnostics of Irving, Texas, will warranty it for only three more years, a replacement technology will have to be put in place by 2016.
In the meantime, the state wants the Supreme Court to relax the controls on Alcotest that it set down in State v. Chun, 194 N.J. 54 (2008), the seminal ruling that found the device scientifically reliable as evidence in DWI cases.
That would allow the state to devote its resources to finding a new machine.
The disclosure that Alcotest is approaching its sunset came May 31 in response to a March 15 motion in aid of litigants’ rights, which asks the court to order the state to implement a series of revisions to the Alcotest software that were mandated by Chun.
Defense attorneys Evan Levow and Matthew Reisig claim in their motion that the online database of Alcotest readings, required to be maintained under Chun, is faulty and incomplete. They also take issue with the fees for use of the database, which range from $5 to 60 depending on number of reports requested.
Deputy Attorney General Robyn Mitchell, in a 62-page opposition, says the state’s decision to retire Alcotest came after it was unable to work with Draeger Safety to make programming revisions that would facilitate uploading of data from machines in police departments around the state to the centralized database.
Draeger hired a software developer, Ayoka Systems, to work on that job. Draeger advised the state last November that it was not willing to continue employing Ayoka, according to Mitchell. Draeger wanted the state to retain Ayoka or another software company directly or do the work in-house. But the state lacked the resources to do the work itself and said it would have to put the work out to bid, which would cause a delay of six to nine months.
“In light of Draeger’s decision to stop supporting the existing Alcotest 7110 instruments at the end of 2016 and the state’s lack of a direct business relationship with Ayoka, the time that it would take [to make the necessary software changes] will likely be comparable to the time it would take to implement a new breath testing program,” Mitchell says. “Given that the Alcotest 7110 will become obsolete at the end of 2016, it makes more sense for the state to focus its attention and resources on replacing the Alcotest 7110.”
Draeger officials did not respond to a reporter’s call about the case; nor did Arlington, Texas-based Ayoka.
The Supreme Court directed in Chun that the state arrange with Draeger to make revisions to programming code in the Alcotest in accordance with directives recommended by Special Master Michael King, a former Appellate Division judge. But the Mitchell notes that the Supreme Court said in Chun that nothing suggests that Alcotest reports generated on machines lacking the mandated updates are in any way inadequate. The court stated, “we agree with the Special Master that updating the firmware to provide this information in addition to that which it already provides would merely be beneficial.”
In the state’s filing, Mitchell describes in detail the technical difficulties the state had in creating the online database and concedes that numerous discrepancies exist between the database and the raw data, noting the database filters out exceptional files.
Peter Aseltine, a spokesman for the Attorney General’s office, says that “none of this goes to the reliability of the Alcotest device, and we have a secure, operating database.”
Jeffrey Gold, who represented the amicus curiae New Jersey State Bar Association in Chun, says, “I really do find it outrageous, the gall the state has in saying, not only are we in violation of this order, in terms of changing the software, for five years, but we want another three years because we’re going to investigate another [machine].”
Gold says King recommended the database requirement as an accommodation to defense lawyers because Draeger does not allow non-government entities to obtain an Alcotest, so defense experts can’t conduct experiments to determine if a particular defendant’s reading is within normal limits. However, the database’s design and its use of Microsoft Excel instead of Microsoft Access, as recommended by the court, hampers its use, he says.
Levow, who heads a Cherry Hill firm, and Reisig, who heads a Freehold firm, decline to comment on the state’s filing.
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Posted on Tue, May 28, 2013 @ 03:53 PM
Court Swears Off Bright-Line Rule For Speedy Trials in DWI Cases
Drunken driving cases need not be tried according to a strict timeline to protect the defendant's constitutional rights, the New Jersey Supreme Court ruled on Monday.
The court left in place a decades-old test that determines speedy-trial violations on a case-by-case basis, rejecting requests by the American Civil Liberties Union-New Jersey and the State Bar Association to modify or abandon it.
"We determine … that we should not adopt an inflexible try-or-dismiss rule," the court said in State v. Cahill, A-47-11. "We also hesitate to suggest even an aspirational goal, as goals have a tendency to evolve over time into rules."
That said, the justices upheld dismissal of a DWI case for which trial had been delayed for 16 months.
On Oct. 27, 2007, Michael Cahill, who had been drinking at a Pennsauken bar, swerved to avoid a blocked lane of traffic and struck a police car, injuring the officer at the wheel. He pleaded guilty in Superior Court to assault by auto and was sentenced on Nov. 14, 2008, to a year of probation. The same day, DWI and other traffic charges were remanded to the municipal court, and the Camden County prosecutor notified that court by letter.
Cahill heard nothing until March 17, 2010, when he received a letter notifying him that the charges were scheduled for trial the following month. He retained counsel and moved to dismiss, claiming the delay violated his right to a speedy trial. The delay limited his job search to positions that would not require driving and paid less, he said.
Municipal Court Judge Steven Petrillo denied the motion, attributing the delay to negligence by court administrators or the county prosecutor's office. Cahill entered a conditional guilty plea.
On appeal, Camden County Superior Court Judge Anthony Pugliese reversed, based on Barker v. Wingo, 407 U.S. 514 (1972), which established four nonexclusive factors to determine violations of the right to a speedy trial: the length of the delay, the reason, any prejudice and assertion of the right by the defendant. He also cited a 1984 directive from Chief Justice Robert Wilentz recommending a 60-day maximum for disposition of drunken-driving cases.
Appellate Division Judges Ariel Rodriguez and Laura LeWinn affirmed, finding Pugliese properly analyzed the Barker factors.
On Monday, the Supreme Court, led by Judge Mary Catherine Cuff, temporarily assigned, said the delay weighed against the state, finding Cahill's failure to inquire about the charges was inconsequential because a defendant "does not … have the obligation to bring himself to trial."
Prosecutors suggested that the municipal court clerk lost or misplaced the November 2008 letter, but ultimately gave no explanation for the delay, Cuff said.
Cuff added that a speedy trial violation can be established without prejudice but acknowledged there was at least "some measure of anxiety by the existence of a pending and long-unresolved charge."
The NJSBA urged abandonment of two of the Barker factors — those related to the defendant's assertion of the right and prejudice — but the court declined. The ACLU-NJ asked the court to establish a specific timeline for speedy trial, as 32 states have done via statute or court rule.
Courts in jurisdictions that have implemented a hard timeline still use the Barker analysis, Cuff noted.
Also, New Jersey courts are governed by rules requiring prompt disposition of criminal charges and a more recent directive, No. 04-11, from July 12, 2011, which instructs Superior Court judges to dispose of all parts of a case, including municipal court matters, absent "some compelling reason otherwise," Cuff said.
"To be sure, on occasion, a case-by-case analysis rather than a bright-line time limitation may lead to seemingly disparate results," Cuff noted, citing a dismissal that occurred after three months of delay and a 32-month delay that was held justifiable.
She said that disposition times "should bear some relation to the nature of the offense and of the evidence required."
Cahill's appellate counsel, Marissa Costello, says she's "a little surprised that they didn't go further, but pleasantly surprised."
"We have a good framework," says Costello, of Costello & Whitmore in Marlton. "A bright-line rule doesn't take into account different variations to the facts."
ACLU-NJ policy counsel Alexander Shalom, who argued on behalf of the organization, says he hoped for more meaningful "concrete guidance" rather than a continuation of the "piecemeal approach." "We think speedy trial protections bring us closer to our goal of equal justice," Shalom says.
Jeffrey Gold, who argued for the NJSBA and once headed its Municipal Practice Section, says Barker "has kind of become a litmus test, but really didn't set out that way." More factors means more discretion by municipal court judges, and "discretion, in our view, sometimes leads to disparate results," says Gold, who heads a Cherry Hill firm.
The decision is "not as far as we'd like them to go, but it would've been a disaster if they reversed," Gold adds.
Assistant Camden County Prosecutor Jason Magid says the reaffirmation of the Barker test “was what the state was looking for,” although he says Cahill shouldn't have received the benefit of it, given his failure to assert his speedy-trial right and the lack of any real prejudice to him from the delay.
New Jersey Law Journal April 2, 2013
Posted on Tue, May 07, 2013 @ 01:47 PM
A state appeals court on Monday vacated a $7.4 million judgment for a pedestrian hit by a driver who had been drinking at a pool party at an apartment complex.
The judges, in Lau v. Seabring Associates, A-3864-10, found the trial court had given erroneous charges to the jury on social host liability and respondeat superior.
Henry Lau, now 69, was walking his dog in the early morning on Dec. 27, 2006, when hit by drunken driver David Figueroa, who had been drinking during an after-hours pool party at the Excelsior, a Hackensack apartment complex owned by Seabring.
Figueroa's blood-alcohol concentration was .192 percent, far in excess of the legal limit of .08. He pleaded guilty to third-degree assault by auto and fourth-degree leaving the scene of an accident, and was sentenced to five years' probation and 180 hours of community service.
Lau, a cardiologist at Hackensack University Medical Center, broke both legs, his pelvis, back and several ribs. He was unable to return to work.
A Bergen County jury awarded Lau $5 million and his wife $350,000 per quod. It also awarded Lau $1.73 million, under a stipulation by the parties, for lost future wages, and the verdict was molded to include $365,000 for past and future medical expenses.
The jury apportioned 55 percent of liability to Seabring, 25 percent to Figueroa and 20 percent to Gabriel Ortiz, an Excelsior front-desk concierge who let the party-goers enter the building, left the door to the pool unlocked and permitted consumption of alcohol despite a no-drinking policy at the pool.
Figueroa settled for $15,000 before trial and Ortiz defaulted.
A judgment for the entire $7.4 million in damages, minus the $15,000 settlement paid by Figueroa, plus $1.2 million in pre-judgment interest, was entered against Seabring under the joint and several liability statute.
Seabring's 55 percent share, and its respondeat superior liability for Ortiz's 20 percent share, placed it over the 60 percent threshold for full liability under the statute, according to Lau's attorney.
On appeal, Seabring argued that Superior Court Judge Alexander Carver III wrongly submitted the questions of respondeat superior liability and social host liability to the jury and gave erroneous instructions on the issues.
In their per curiam decision, Appellate Division Judges Susan Reisner, Harris and Margaret Hayden said the factual picture was "insufficient to present the jury with a viable dispute regarding vicarious liability based on respondeat superior."
The decision by Ortiz, a member of the security staff, to admit trespassers was clearly outside the scope of his employment as it "directly undermined the security of the building that Ortiz was hired to provide," the panel said.
The judges further held the "record does not warrant the inclusion of a stand-alone charge on a social host theory of liability because Seabring was not a social host. It was an employer."
Figueroa was only 20 at the time of the party and liability for providing alcohol for people under 21 is governed by traditional negligence principles under common law, not social host liability, the panel said.
In addition, the pool party was not sponsored or condoned by Seabring, and there was no evidence it provided the alcohol, the panel said.
Seabring asked the appeals court to find that an accumulation of errors required a new trial on liability and allocation of fault.
Again the panel sided with the company, finding that Carver "improperly fused" respondeat superior and social host liability, and jurors were never asked to consider the differences between vicarious and primary liability.
The panel said it had "no confidence" that the jury properly evaluated the actors' liability and assigned appropriate percentages of fault.
"When viewed under the totality of the circumstances, the material surplusage of issues presented, the trial court's overlapping instructions, and the unnecessarily narrow-focused verdict summary form combined to create a misleading deliberative environment, fully capable of engendering an unjust result," it said.
The appeals court ordered a new trial on liability and apportionment of blame. But that is now moot as the plaintiff will receive $5 million under a high-low agreement with defendant Seabring Associates while the appeal was pending, according to his lawyer, Rosemarie Arnold, who heads a firm in Fort Lee.
Arnold says she disagrees with the ruling but her client would have prevailed if the case had been retried solely on a negligent supervision theory of liability against Seabring. "The evidence was in abundance that they negligently supervised" Ortiz, she says.
As for the high-low settlement, "no one likes to lose, but when the booby prize is north of $5 million, it's not that bad," she says.
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Posted on Mon, Apr 29, 2013 @ 12:02 PM
Defense lawyers say they expect to file more suppression motions as a result of a recent, favorable U.S. Supreme Court ruling on drunken driving.
The court, in Missouri v. McNeely, No. 11-1425, held on April 17 that as a general rule, police must obtain a search warrant or consent in order to extract blood from a driver to test for alcohol.
Previously, the fact that the passage of time would cause a drop in blood-alcohol levels was deemed a sufficient exigency to justify an exception to the Fourth Amendment warrant requirement for searches.
Under McNeely, however, the drop in levels may support an exigency finding in a particular case but does not do so categorically.
The issue must be decided case by case, based on the totality of the circumstances, including the evanescent nature of blood-alcohol levels and the resultant loss of evidence as time passes, the court said.
New Jersey courts have allowed police to require blood testing so long as it is not performed forcibly or against physical resistance.
Blood-alcohol levels are typically based on Alcotest breath samples, with police resorting to extraction of blood where the Alcotest cannot be used — for example, when the driver has been injured, has bad asthma or for some other reason cannot provide a sample.
DWI defense lawyers are grappling with questions raised by McNeely, including whether it will be applied retroactively, which the court did not address.
Jeffrey Gold of Cherry Hill, a past president of the State Bar Association's Municipal Court Practice Committee, says nothing in the case indicates it will not be retroactive.
It is not a new rule, just an interpretation of the warrant requirement, and thus, should be applied retroactively, in his view.
Gold estimates that 5 percent of his DWI cases involve blood tests, and he will move to suppress based on McNeely in all of them.
Hammonton solo Robert Pinizzotto says at any given time, he has one to five blood-draw cases.
He wonders whether the courts will allow only pipeline retroactivity, limited to pending charges, or complete retroactivity, which would allow DWI conviction challenges.
Another issue raised by McNeely is the warning police will likely have to give in seeking consent to a blood test, similar to when they seek consent to search a vehicle.
Pinizzotto also sees a potential impact on urine tests of drivers suspected of drug use, usually done without a warrant, by consent. If those drivers must also be warned, consent might be harder to come by, he thinks.
Defense lawyer Peter Lederman of Lomurro Davison Eastman & Munoz in Freehold points to additional aspects of McNeely he likes: the credence given to National Highway Traffic Safety Administration standards regarding sobriety, which New Jersey judges do not share, and language recognizing that the interest in preventing DWI does not trump the Fourth Amendment.
Jon-Henry Barr, head of the municipal prosecutors' association, calls the reaction to the ruling "much ado about nothing."
"I am confident that the New Jersey Attorney General's Office will issue some type of guidelines now to assure that consent is obtained in a proper way before blood is drawn," says Barr, who heads a firm in Clark.
"In the event a suspected drunk driver does not consent, there will be an appropriate procedure to quickly and probably telephonically obtain a warrant," he adds.
Within 24 hours of the McNeely holding, he received an email about the case from the Union County Prosecutor's Office — Barr is a prosecutor in two Union County municipalities, Clark and Kenilworth — stating that police should be advised that the need for a blood-test warrant will be evaluated on a totality-of-the-circumstances standard.
Barr, who says roughly 5 percent to 10 percent of DWIs he prosecutes involve blood tests, acknowledges that police have a problem due to McNeely and will need a consent form to draw blood with appropriate warning language and a procedure for obtaining a warrant if consent is not given.
In his experience, police are reluctant to obtain warrants because of the inconvenience. He says the process can be made easier by allowing telephonic warrants. Superior Court judges can already issue them and McNeely has increased the pressure to allow municipal courts to do so as well, he says.
The Supreme Court Municipal Court Practice Committee report released on Feb. 1 mentioned the possibility but held it for future consideration.
The committee said it did not want to contradict the report of the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which recommended against municipal judges issuing telephonic warrants.
But it also noted that the warrant committee report said if warrant requests increased to the point where Superior Court judges could not handle the volume, certain municipal judges might need to be enlisted.
More than 35,000 driving while intoxicated (DWI) cases were resolved in New Jersey from July 2011 through June 2012, the most recent fiscal year for which statistics are available.
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Posted on Thu, Mar 14, 2013 @ 08:30 AM
COURT IS ASKED TO ORDER STATE TO FIX ALCOTEST DATABASE BUGS
Defense lawyers have lodged another challenge to statewide use of the Alcotest in drunken driving cases, claiming the database of readings established in compliance with a Supreme Court directive is incomplete and corrupt. In motion papers filed Tuesday, Evan Levow of Cherry Hill and Matthew Reisig of Freehold want the Attorney General's Office to show cause why it should not be compelled to redesign the database, established last November. Discrepancies found in a review of data downloaded from a state website ranged from "confusion of data to sanitization of demonstrable error," the lawyers allege.
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Posted on Fri, Mar 08, 2013 @ 11:50 AM
REFUSAL WARNINGS ARE INADEQUATE, REVISION NEEDED, STATE BAR SAYS
The New Jersey State Bar Association is asking for a court-ordered rewrite of the warning police give to suspected drunken drivers about the consequences of refusing to take a breath test. The bar is amicus curiae in State v. O'Driscoll, A-7-12, a case at the state Supreme Court that could have broad implications for thousands of refusal convictions and pending appeals. In its brief filed Jan. 5, the bar says the current standard warning — issued by the Attorney General's Office on July 1 — fails to tell potential refusers that they face mandatory license suspensions, fines, installation of ignition lock devices and attendance at Intoxicated Driver Resource Centers.
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Posted on Wed, Feb 06, 2013 @ 01:30 PM
BILL AUTHORIZING IGNITION LOCKS FOR FIRST-TIME DWI OFFENDERS ADVANCES
A Senate panel on Monday approved a bill that would make installation of ignition-lock devices, rather than license suspension, the main penalty in most drunken-driving cases. The Senate Judiciary Committee advanced the measure, S-2427, in a 12-0 vote, with one abstention. First-time offenders could continue driving with the mandated devices, which allow the vehicle to start if the operator produces a clean breath sample. Second or subsequent offenders would need a restricted-use license — only allowing work-related or other travel set by a judge — for at least the first year the lock is in place.
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Posted on Tue, Jan 08, 2013 @ 12:30 PM
COURT TO DECIDE IF DWIS COUNT AS PRIORS FOR BREATH-TEST REFUSERS
Nearly two years after the Supreme Court held that prior breath-test refusal convictions cannot be used to ramp up drunken driving penalties, it has agreed to decide if the opposite is true. The justices, in State v. Frye, A-30-12, granted certification on whether prior DWI offenses can be counted to sentence a defendant as a repeat offender on a refusal conviction. Appellate courts have answered yes in a string of decisions — including State v. Clapper, A-2338-11, decided Monday, three days after the grant of certification in Frye. And there are at least two similar cert petitions pending.
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Posted on Thu, Mar 22, 2012 @ 02:57 PM
A municipal judge who fed questions to the prosecutor during an ex parte chat in a drunken-driving case was publicly reprimanded on Feb. 24. The state Supreme Court agreed with the Advisory Committee on Judicial Conduct that Gregory McCloskey undermined confidence in the bench's independence and impartiality by showing a preference for the prosecution and should have disqualified himself. According to the ACJC presentment, McCloskey "directed" the prosecutor — outside the presence of defense counsel — to ask two questions of a witness that were "specifically central to the State's case and specifically critical to the defense theory."
NJLJ 2/28/2012
JUDGE IS REPRIMANDED FOR COACHING PROSECUTOR IN DRUNKEN-DRIVING TRIAL
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Posted on Mon, Feb 13, 2012 @ 12:25 PM
A state appeals court has set out guidelines for judges in dram shop cases where a tavern's defense is that an imbiber's high alcohol tolerance made his drunkenness too hard to detect. The ruling, in Davis v. Barkaszi, A-2345-10, means a new trial for a South Plainfield nightclub found liable for negligently served alcohol to a patron who later got into an accident, injuring his passenger. The defense should have been allowed to use non-expert testimony to counter the plaintiff's expert testimony that Barkaszi's tolerance was about the same as anyone else's, the panel said, citing Panko v. Grimes, 40 N.J. Super. 588 (1956), which held questions of tolerance are for a jury to decide.
EVIDENCE OF PATRON'S ALCOHOL TOLERANCE HELD RELEVANT TO DRAM SHOP LIABILITY
NJLJ 2/10/2012
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