New Jersey DWI Defense: The Law and Practice

Description
Reviews

Author: Steven W. Hernandez, James Nesci
ISBN 10: 1-933264-86-1
ISBN 13: 978-1-933264-86-8
Copyright Date Ed: May 16, 2016
Pages: 320 pages
Binding Information: Casebound plus CD-ROM
Size: 8.5 ✕ 11 Inches (US)

For even the most seasoned attorney admitted to practice in the State of New Jersey, defending DWI cases has always presented special challenges. Today mounting a successful defense is more difficult than ever. Now you have the advantage with New Jersey DWI Defense: The Law and Practice. This text and supplementary DVD contains the most important information to help you attain a successful verdict.

Written by Steven W. Hernandez and James Nesci, both members of the National College for DUI Defense, New Jersey DWI Defense: The Law and Practice ensures that you understand the chemical, biological and technological concepts and issues underlying DWI prosecution and defense in the State of New Jersey. The authors provide the most up-to-date information available on key areas of DWI law in New Jersey including: DWI Investigations, Driving and Field Sobriety Testing, Drug Recognition, Evaluation and Chemical Testing, Blood Alcohol Calculations, Pre-trial Investigations and Motions, Practice, Plea Offers and Agreements, DWI Trial Procedures, and more.

Many practical tools and applications designed to streamline and simplify the complex DWI defense process have been developed along with this book. They are all included on a bonus DVD—so you can locate, review and print them out in a matter of seconds. The companion DVD contains NHTSA studies, articles and visual detection videos, DRE manuals, example forms, and more.

Lawyers & Judges has published twenty state-specific DUI defense reference books. A practitioner in Colorado raved in the Colorado Lawyer that Colorado DUI Defense: The Law and Practice is “a must-have resource” and would make “a nice gift for the lawyers in your life who practice DUI defense.” The Wisconsin Lawyer reviewer gave Wisconsin OWI Defense: The Law and Practice a touchdown review, calling the book “the best book I have read pertaining to Wisconsin operating-while-intoxicated (OWI) law, and one of the best in dealing with the substance of OWI law.”

Includes information on the Alcotest 9510 and Intoxilyzer 9000, two breath test machines to which the State is currently considering switching.

Topics Include:

Advertising
Client Relations
DWI and the Oklahoma Motor Vehicle Division
Pre-trial Investigations
Pre-trial Motions Practice
Plea Offers and Agreements
DWI Trial Procedures
DWI Investigations, Driving & Field Sobriety Testing
Drug Recognition Evaluation
Chemical Testing
Blood Alcohol Calculations
Expert Witnesses
Resources
New Jersey Case Law

CD-ROM topics include:

USDOT “Drugs That Impair Driving” manual
“DUI Mandatory Sentencing Chart”
USDOT “DWI Detection and Standardized Field Sobriety Testing” manual
USDOT “SFST Refresher Training Course” manual
New Jersey rules
Jury instructions
NHTSA “The Detection of DWI Motorcyclists” brochure
NHTSA visual detection (videos)

Tables of Cases
Preface

Chapter 1: Lawyer Advertising
1.1 Ethical Issues in Advertising
RPC 7.1 Communications concerning a lawyer’s services
RPC 7.2 Advertising
RPC 7.3 Direct contact with prospective clients
RPC 7.4 Communication of fields of practice
RPC 7.5 Firm names and letterheads
1.2 Advertising Resources
A. Phone Book Advertising
B. Internet Advertising
C. Giveaways
D. Television
E. Print
1.3 Social Media
A. Ethical Concerns
B. Confidentiality vs. Privilege
C. The 3 Tenets of Social Media: Timeliness, Honesty, and Transparency
D. Facebook
E. Twitter
F. Social Media as a Research Tool
G. Final Thoughts on Social Media

Chapter 2: Basic Client Relations & Representing Clients with Special Circumstances
2.1 Meeting the Prospective Client
2.2 Client Intake Questions
2.3 Client Intake Interview
2.4 Retainer Agreements
2.5 Fees
2.6 IOLTA
2.7 Communication
2.8 Client File Retention
2.9 Representing the Military Client for DWI
2.10 Pilots and Merchant Marines
2.11 Non U. S. Citizens—Immigration Consequences
2.12 Canadian Travel
Endnotes

Chapter 3: Driving While Intoxicated
3.1 Overview
3.2 New Jersey 39:4-50, Driving While Under the Influence
3.3 Allowing Intoxicated Operation, N.J.S. 39:4-50
3.4 Underage Consumption of Alcohol and Operation, N.J.S. 39:4-50.14
3.5 Boating While Intoxicated, N.J.S. 12:7-6
3.6 Commercial Drivers Licenses: A Lower BAC Threshold, N.J.S. 39:3-10.24
3.7 DWI with a Minor under Age 16 in the Vehicle at the Time of the Offense
3.8 Assault by Auto While Under the Influence
3.9 Criminal Homicide While Under the Influence
3.10 Operating during the DWI or Refusal Suspension period

Chapter 4: Implied Consent: Refusal Offense
4.1 Overview
4.2 Implied Consent to Taking of Chemical Samples- N.J.S. 39:4-50.2
4.3 Refusal to Submit to Breath Test-N.J.S. 39:4-50.4a
4.4 Possible Refusal Defenses
4.5 No Recantation or Cure of Refusal
4.6 No Right to Attorney Prior to Taking Chemical Test
4.7 Consciousness of DWI Guilt

Chapter 5: Pre-Trial Investigations
5.1 Overview
5.2 Proper Filing Techniques
5.3 Client Investigation
5.4 Discovery
5.5 Visiting the Scene
5.6 Photography and Videos
5.7 Diagrams and Aerial Photography
5.8 Accident Reconstruction
5.9 Event Data Recorders (Black Boxes)
5.10 Roadblock (a.k.a. “DWI Checkpoint”) Investigations
5.11 Pre-Trial Interviews, Civilians
5.12 Pre-Trial Interviews, Emergency Personnel
5.13 Prior Offenses

Chapter 6: Pre-Trial Motions Practice
6.1 Overview
6.2 Procedural Motions
A. Notice of Appearance
B. Request for Discovery—Holup Dismissal Motion
C. Request for Jury Trial
D. Double Jeopardy Dismissal
E. Speedy Trial
F. Statute of Limitations
6.3 Substantive Motions
A. Evidentiary Hearings: N.J.R.E. 104(a) Admissibility of Evidence and Qualifications of Witnesses
1. Evidence
2. Statements—Miranda
i. Motion to suppress statements taken in violation of Miranda rights
ii. Motion to suppress involuntarily made statements
3. Motions to suppress evidence: R. 7:5-2
B. Reasonable Suspicion: Stop or Investigative Detention
1. Field inquiry
2. Motor vehicle stops or investigative detention
3. Third party tips for stop or investigative detention
4. Mistake of fact v. Mistake of law—Stops
5. Community caretaking stops
6. DWI checkpoints
7. Ordering defendant out of car—State v. Bernokeits
C. Probable Cause to Arrest
D. Relevant Case Law
1. De facto arrest
2. Blood searches—consent and search warrant issues
6.4 Motions in Limine
A. Destruction of Evidence by State—Due Process Violation
B. Unreasonable Force Used in Blood Search—State v. Ravotto
C. Recusal of Judge or Prosecutor
D. Breath Test Readings Not Taken Within Reasonable Time of Operation
E. Failure of Police Witnesses to Appear—Possible Dismissal

Chapter 7: Plea Negotiations
7.1 Overview
7.2 Guilty Pleas
7.3 Conditional Guilty Pleas
7.4 Plea Negotiations
A. Guideline 4
B. Administrative Office of the Courts Dismissal Directive
7.5 Related Offenses

Chapter 8: Trial
8.1 Overview
8.2 Setting a Trial Date
8.3 The Evidentiary Hearing
8.4 No Right to a Jury
8.5 Opening Statements
8.6 Cross Examination
8.7 Closing Arguments
8.8 DWI Direct Penalties
8.9 Refusal Direct Penalties
8.10 Collateral Consequences
8.11 Victim’s Rights
Appendix: Jury Trial

Chapter 9: DWI Investigations: Driving and Field Sobriety Testing
9.1 Overview: National Highway Traffic Safety Administration (NHTSA)
9.2 Driving Behavior
9.3 Standardized Field Sobriety Testing (SFST) Validation Studies
9.4 Legal Analysis and Summary of the SFST Validation Studies
9.5 Standardized Field Sobriety Test Battery
9.6 Horizontal Gaze Nystagmus (HGN)
9.7 Walk and Turn
9.8 One-Leg-Stand
9.9 Refusal of SFSTs and General Admissibility
9.10 Commonly Used Non-Standardized/Non-Validated Field Sobriety Tests
9.11 Videotaping the Driving and Investigation
References

Chapter 10: Drug Recognition Evaluation
10.1 Overview
10.2 DRE Statutory Law
10.3 Per Se Statutes Comparison
10.4 Impairment Statutes Comparison
10.5 Defenses
10.6 Implied Consent Laws Comparison
10.7 DRE Case Law
10.8 The 12-Step DRE Protocol
10.9 Deconstruction and Analysis of the 12-Step DRE Protocol
10.10 Effects of Various Drugs
10.11 Drug Evaluation Classification Protocol (DECP)
10.12 Drug Evaluation Classification Training Program

Chapter 11: Chemical Testing
11.1 Overview
11.2 Henry’s Law and Blood to Breath Ratio
11.3 Evidential Breath Testing: Alcotest 7110 MkIIIC
11.4 Alcotest® 9510
11.5 Intoxilyzer® 9000
11.6 Breath Testing: Methods of Attack
11.7 Requirements for Admissibility
11.8 Portable Breath Testing
11.9 Blood Testing: From the Vein to the Lab
11.10 Headspace Gas Chromatography
11.11 Uncertainty of Measurement
11.12 Blood Testing for Drugs
11.13 Secondary Blood Testing
11.14 Blood Draws: Statutory and Other Requirements for Admissibility
References

Chapter 12: Blood Alcohol Calculations for Attorneys
12.1 Blood Alcohol Calculations for Attorneys
12.2 Determining the One-Drink Potential
12.3 Elimination and Retrograde Extrapolation
12.4 White’s Retrograde Extrapolation
12.5 Partition Ratio Conversions
12.6 Unit Conversions

Chapter 13: Expert Witnesses
13.1 Overview
13.2 Qualification and Admissibility of Expert Testimony
13.3 Pretrial Preparation
13.4 Expert Notice Requirements
13.5 Confrontation Issues
13.6 Notice and Demand
13.7 Cross of the State’s Expert Witness
13.8 Direct Examination of the State’s Expert as a Defense Witness

Chapter 14: DWI Appellate Practice and Post-Conviction Relief
14.1 Appellate Practice Overview
14.2 Municipal Court Appeal-R. 3:23
14.3 Interlocutory Appeal to Law Division-R. 3:24
14.4 Direct Appeal to Appellate Division
14.5 Interlocutory Appeal to Appellate Division
14.6 State Supreme Court Review
14.7 Post-Conviction Relief Overview
14.8 Reconsideration Motions
14.9 Seeking a New Trial
14.10 Seeking “Laurick” Relief-R. 7:10-2(g)

Appendix A: Statutes

Appendix B: The Aging Process and Field Sobriety Tests
by Mimi Coffey, Esq.

Appendix C: DWI—Modern Day Salem Witch Hunts
by Mimi Coffey, Esq.

Appendix D: DWI—Fear and the DWI Field Sobriety Tests
by Mimi Coffey, Esq.

About the Author

Index