DWI blood case defense

10 Tips on Defending the DWI blood & urine case
 By Kenneth Vercammen, Co-chair, ABA Criminal Law Committee Solo Division
  1. Make a detailed request for blood records discovery, not sending a short lazy letter “Please provide discovery…”  The following is a portion of our form discovery demands from the NJ ICLE seminar book “Handling Drug, DWI and Serious Motor Vehicle Offenses” by Ken Vercammen and John Menzel, JD.
Ex: My client is charged with DWI, which has Consequences of Magnitude.
More info at http://www.njlaws.com/dwi-blood.html
 Additional Discovery demanded by defense and expert:
1 all gas chromatograph results and notes pursuant to State vs. Weller 225 N.J. Super. 274 (Law Div.1986).  
2. All results and notes of any tests performed.
3. The operator's manual for all instruments used to test the substances, pursuant to State v Green 417 NJ Super. 190 (App. Div. 2010) and State v Ford 240 N.J. Super. 44 (App. Div. 1990). Defense requests all operating procedures, instruction manuals, test protocols, maintenance logs of the gas chromatograph or equipment used, performance evaluations, and test result printouts.
4. resume and personnel file of scientist
5. all the 911 and police calls for date of violation.
6. All video for police vehicles or other video available.
7. names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information including a designation by the state as to which of those persons the state may call as witnesses; and their dates of birth

 2. Make a formal Demand for documents regarding Field Sobriety testing. Also make a separate request for Public records under the Open Public Records OPRA law to township clerk and police chief.

1. training materials for each any "test" usually given to individuals under suspicion of DWI including manuals, lesson plans, texts, tests, and article reprints kept by Police department.

2. Many departments rely on the NHTSA Manuals dealing with field sobriety. If your department relies on these manuals, please provide a copy of the specific manual relied on by Police department

3. Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of walk and turn

4. Documents which set forth Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform the field sobriety, test of finger to nose.

5. Documents which set forth, Police department’s policy on accommodating person’s with physical disabilities who are requested by police to perform other field sobriety tests, such as the one legged stand.

Driving unlicensed or no license ever 39 3 10

39:3-10a Driving with an expired license
fine $0-  $500
where the offender has been licensed in NJ or elsewhere (listed 39:3- 10A in ATS)
or imprisonment in the county jail for not more than 60 days 
39:3-10 b Fine or imprisonment for not more than 60 days and no license to issue for at least 180 days
39:3-10b Driving without ever being licensed
Fine $200- $500
 or imprisonment in the county jail for not more than 60 days 
More info at http://www.njlaws.com/unlicensed_drivers.html
39:3-10   Penalties
 39:3-10  No person shall drive a motor vehicle on a public highway in this State unless the person is under supervision while participating in a behind-the-wheel driving course pursuant to section 6 of P.L.1977, c.25 (C.39:3-13.2a) or is in possession of a validated permit, or a probationary or basic driver's license issued to that person in accordance with this article.

Domestic violence defense

DOMESTIC VIOLENCE DEFENSE by Kenneth A. Vercammen, Esq.
 New Jersey domestic violence laws are very strict. A spouse or girlfriend could call the police and if there are any signs of physical injuries the police must arrest the man.  Even without independent witnesses and no physical injuries, police may arrest the man. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report.  For example, O.J. Simpson would not have gotten away with abuse in New Jersey. More info at http://www.njlaws.com/restraining_orders_in_domestic_violence_cases.html.
    Police are automatically required to arrest an abuser if they see any evidence of abuse or assault.
 Even during the evening, your town Municipal Court or Superior Court can issue a Restraining Order, which is a legally enforceable document. The Temporary Restraining Order (TRO) will prohibit the defendant/abuser from any contact with the victim or entering the residence.
 Unlike a criminal case where a person is provided with lengthy due process rights, and if guilty receives probation and a monetary fine, a domestic violence hearing allows judges to issue far-reaching orders.  A domestic violence hearing is usually held within only ten (10) days after the filing of an ex parte complaint and temporary restraining order.  After a hearing, NJSA 2C:25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant.
 Too often lawyers throw up their hands when a client presents a complaint involving domestic violence and related criminal charges. While defense of the complaint may become an involved process requiring commitment and persistence, there are a number of viable defenses and arguments that can achieve a successful result. Rather than simply suggest that a client plead guilty and avoid trial, an attorney should accept the challenge and apply his best legal talents to protect the client’s rights.
We require a great deal of cooperation from our clients in an effort to help keep their costs reasonable. We require our clients to prepare diagrams and provide us with the names, addresses, and telephone numbers of witnesses.
Sometimes a family friend can act as a go between for the parties and convince the complaint to dismiss the charges. A DOMESTIC VIOLENCE complainant can be withdrawn or Civil Restraining Order negotiated. However, if a criminal complaint is signed by the police, only the prosecutor can make a motion to dismiss.
1. The In-Office Interview at the Law Office
We advise potential clients to bring in a copy of the complaint, all their papers in connection with their case, and any documents they received from the Police or a court.  Often we will instruct them to write a confidential narrative for themselves if it is a case that is fact-specific or involves a great deal of detail, to help them remember the facts.
Prior to the client coming into the office we e-mail them the Confidential New Client Interview Sheet. We obtain background information such as their name, address, the offenses charged, date of the person’s arrest, other witnesses, what they told the police, their occupation and information regarding prior criminal arrests and immigration status. Our interview sheet also asks if there is anything else important, such as a medical condition that affects their case. This form will also let us know whether or not the client will follow instructions and cooperate with us. If they refuse to provide information we may have a problem client.
After reviewing the complaint and the interview sheet at the in-office consultation I ask a series of questions of the client. We request the client wait until the end of the interview before explaining their side of the story. We also ask them if there is anything else of importance in connection with the case that we should know. The client may have pending serious criminal charges in another state or county. I often open up our statute book and show the clients the specific language of the offense they are charged with and explain to them the maximum penalties that could be imposed. By understanding the charges they are facing, my clients are more likely to realize the seriousness of the offense and pay our retainer.
2. Retaining the Attorney
Once we receive our retainer (are paid), we begin work right away. Usually while the client is still in the office, we prepare a discovery letter on the computer to the prosecutor/district attorney and court and hand a copy to the client. We occasionally call the court to advise them that we will be handling the case and to inquire who handles discovery. We check the State Lawyers Diary to determine who are the judges and prosecutor/district attorneys for the county or town. It is important to know who may be the judge and the prosecutor.

Discovery demands in DWI blood and urine cases

The US Supreme Court required a warrant before taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013). We submit this also applies to blood & urine cases where consent was not obtained in writing. More info at http://www.njlaws.com/dwi-blood.html
Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.
Held: The judgment is affirmed.  358 S. W. 3d 65, affirmed.
Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. 
(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is

Defense of Pot charges and penalties 2C:35-10 Marijuana pot charges CDS

2C:35-10 Marijuana 2C:35-10 pot charges CDS
      Kenneth Vercammen’s Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
The Municipal Courts of New Jersey have jurisdiction to hear the following drug-related offenses:
NJSA 2C:5-10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35-10(b), using or being under the influence of CDS;
NJSA 2C:35-10(c), failure to deliver CDS to police;
NJSA 2C:36-2, possession of drug paraphernalia
More info at http://www.njlaws.com/marijuana.html
Violation of these statutes constitute disorderly person offenses. If convicted, the court may impose a $500.00 Drug Enforcement Reduction penalty and a $50.00 lab fee for each CDS charge. The court has discretion to fine a defendant up to $1,000 and/or incarceration for up to six months. The $50.00 VCCB penalty also must be imposed.
Moreover, the court must suspend the defendants drivers license for a time period between six months and two years. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed.
If you elect to initially plead not guilty, your attorney will send a discovery letter/letter of representation to both the Municipal Prosecutor and the Municipal Court Clerk. If you have a drug problem, it is recommended that you attend a substance abuse treatment programs to seek help for any addiction. Proof of attendance of such a program is of benefit at sentencing or in obtaining an application for conditional discharge.
CONDITIONAL DISCHARGE
New Jersey State statute N.J.S.A. 2C: 36A-1 provides that a person not previously convicted of a drug offense and who has not previously been granted supervisory treatment under 24:21-27, 2C:43-12 or 2C: 36A-l may apply for a conditional discharge. The court upon notice to the prosecutor and subject to 2C: 36A-l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.).
Since the granting of a conditional discharge is optional to the court, you should be prepared to prove, through letters, documents, or even witnesses, that the defendants continued presence in the community or in a civil treatment program, will not pose a danger to the community.
You should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty, and $50.00 lab fee. The court further has the option to suspend a defendants drivers license between six months and two years.
The conditional discharge period is also between six months and two years. If the defendant is convicted of a drug offense during the CD period or violates the conditions set by the court, the prosecution resumes. The defendant may even apply for a conditional discharge after he/she is found guilty, but before sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory.

website: njlaws.com

Criminal mischief

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey.
more info at http://www.njlaws.com/criminal_mischief.htm
Criminal Mischief 2C:17-3. a. Offense defined. A person is guilty of criminal mischief if he:

(1)Purposely or knowingly damages tangible property of another or damages tangible property of another recklessly or negligently in the employment of fire, explosives or other dangerous means listed in subsection a. of N.J.S. 2C:17-2; or

(2)Purposely, knowingly or recklessly tampers with tangible property of another so as to endanger person or property.

b. Grading. (1) Criminal mischief is a crime of the third degree if the actor purposely or knowingly causes pecuniary loss of $2,000.00 or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service.

(2)Criminal mischief is a crime of the fourth degree if the actor causes pecuniary loss in excess of $500.00. It is a disorderly persons offense if the actor causes pecuniary loss of $500.00 or less.

(3)Criminal mischief is a crime of the third degree if the actor damages, defaces, eradicates, alters, receives, releases or causes the loss of any research property used by the research facility, or otherwise causes physical disruption to the functioning of the research facility. The term "physical disruption" does not include any lawful activity that results from public, governmental, or research facility employee reaction to the disclosure of information about the research facility.

(4)Criminal mischief is a crime of the fourth degree if the actor damages, removes or impairs the operation of any device, including, but not limited to, a sign, signal, light or other equipment, which serves to regulate or ensure the safety of air traffic at any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however, if the damage, removal or impediment of the device recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(5)Criminal mischief is a crime of the fourth degree if the actor interferes or tampers with any airport, landing field, landing strip, heliport, helistop or any other aviation facility; however if the interference or tampering with the airport, landing field, landing strip, heliport, helistop or other aviation facility recklessly causes bodily injury or damage to property, the actor is guilty of a crime of the third degree, or if it recklessly causes a death, the actor is guilty of a crime of the second degree.

(6)Criminal mischief is a crime of the third degree if the actor tampers with a grave, crypt, mausoleum or other site where human remains are stored or interred, with the purpose to desecrate, destroy or steal such human remains or any part thereof.

c. A person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to pay to the owner of the damaged property monetary restitution in the amount of the pecuniary damage caused by the act of graffiti and to perform community service, which shall include removing the graffiti from the property, if appropriate. If community service is ordered, it shall be for either not less than 20 days or not less than the number of days necessary to remove the graffiti from the property.

d. As used in this section:

(1)"Act of graffiti" means the drawing, painting or making of any mark or inscription on public or private real or personal property without the permission of the owner.

(2)"Spray paint" means any paint or pigmented substance that is in an aerosol or similar spray container.

Amended 1979, c.178, s.30; 1981, c.290, s.17; 1991, c.336, s.1, 1995, c.20, s.2; 1995, c.251, s.1; 1998, c.54, s.1; 1999, c.95, s.1.

Consequences of a Criminal Guilty Plea

1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s)

2. Do you understand that if you plead guilty:

a. You will have a criminal record

b. You may go to Jail or Prison.

c. You will have to pay Fines and Court Costs.

KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
website: www.njlaws.com

Consequences of a criminal conviction

Consequences of a Criminal conviction
1 You will have a criminal record
2 You may go to Jail or Prison.
3. You will have to pay Fines and Court Costs.
4. When you are on Probation or Parole, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail.
5. You must wait 5-10 years to expunge a first offense. 2C:52-3
6. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your driver's license for 6 months - 2years.
7 You could be put on Probation for up to five years.
8.. You may be required to do Community Service.
9 You lose the presumption against incarceration in future cases. 2C:44-10 You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution.
11. Future employers may not hire you because you have a criminal record. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty and may be barred from any future city, state, federal or school employment
12. If you are not a United States citizen or national, you may be removed/deported by virtue of your plea of guilty or prevented from citizenship.
13. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) in front of a crowded room of people and the records are open to the public.
        More info at
http://www.njlaws.com/consequences_of_a_criminal_guilty_plea.htm
       The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense.