Video Course Evaluation Form. Atty ID number for Pennsylvania: Name of Course You Just Watched

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1 Garden State CLE 21 Winthrop Road Lawrenceville, New Jersey (609) fax Video Course Evaluation Form Attorney Name Atty ID number for Pennsylvania: Name of Course You Just Watched Please Circle the Appropriate Answer Instructors: Poor Satisfactory Good Excellent Materials: Poor Satisfactory Good Excellent CLE Rating: Poor Satisfactory Good Excellent Required: When you hear the bell sound, write down the secret word that appears on your screen on this form. Word #1 was: Word #2 was: Word #3 was: Word #4 was: What did you like most about the seminar? What criticisms, if any, do you have? I Certify that I watched, in its entirety, the above-listed CLE Course Signature Date Garden State CLE, 21 Winthrop Rd., Lawrenceville, NJ fax

2 Garden State CLE presents:: Police Report Writing in Complex DWI Cases Lesson Plan

3 Goals of Report Writing in Complex DWI Cases 1. To discourage the filing of motions to suppress 2. To encourage guilty pleas by defendants 3. To serve as a road map for the prosecution of the case 4. To provide a basis for persuasive testimony at trial

4 Required Characteristics of Police Reports in Complex DWI Cases 1. Accurate 2. Truthful 3. Professional (Spelling, Grammar, etc) 4. Comprehensive (Nothing omitted) 5. Persuasive (Defendant must plead guilty)

5 Scope of Instruction: Complex DWI Cases Defined a.) Evidence of Intoxication Based upon Blood Draw b.) Evidence of Intoxication Based upon Urine Sample c.) Defendant under the influence of Drugs d.) Evidence of intoxication based solely upon Alcotest evidence e.) Evidence of intoxication based solely upon driver under the influence f.) Seizure of Physical Evidence - Fourth Amendment Issues g.) Miscellaneous Issues

6 a.) Evidence of Intoxication Based upon Blood Draw 1.) Introduction On April 17, 2013, New Jersey procedure related to blood draws in drunk driving cases changed as a result of the Supreme Court s decision in in Missouri v. McNeely, 133 S. Ct (2013). Under the new law, the taking of a blood sample from a drunk-driving suspect must be accomplished either by search warrant or under an exception to the warrant requirement, usually exigent circumstances. Under current New Jersey law, a blood sample may be taken from the body of a person who has been arrested based upon probable cause to believe that he operated a motor vehicle while under the influence of drugs or alcohol. 2.) Practical Impact for Law Enforcement The legally preferred method of blood extraction is via a search warrant which will generally have to be authorized via telephone application. Every case of a blood draw that does not involve a search warrant will be subject to a motion to suppress, challenging the claimed exigent circumstances in your report. The suppression of blood-alcohol evidence may be fatal in a drunk driving prosecutions as well as in cases involving homicide and aggravated assaults.

7 3.) Contents of Report Blood Sample Taken by Search Warrant 1.) Except that the Attorney General will issue uniform procedures on making a telephonic application for a search warrant within the next few weeks. In the meantime, the procedures are set forth in the Rules of Court, subject to supervision by the county prosecutor. Your activities and report should closely track the currently required procedures: 2.) Current Procedure Requires Review of your oral application by Deputy AG or Assistant County Prosecutor. 3.) Following review, you will contact the Emergent Duty Superior Court Judge on call who will hear your warrant application.

8 4.) Procedure as per Rule 3:5-3(b): A Superior Court judge may issue a search warrant upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate longhand notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the applicant must identify himself or herself, specify the purpose of the request and disclose the basis of his or her information. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a search warrant. A warrant may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown. Upon approval, the judge shall memorialize the specific terms of the authorization to search and shall direct the applicant to enter this authorization verbatim on a form, or other appropriate paper, designated the duplicate original search warrant. This warrant shall be deemed a search warrant for the purpose of R. 3:5. The judge shall direct the applicant to print the judge's name on the warrant. The judge shall also contemporaneously record factual determinations as to exigent circumstances. If a recording is made, the judge shall direct that the testimony be transcribed as soon as practicable. This transcribed record shall be certified by the judge. The judge shall promptly issue a written confirmatory search warrant and shall enter thereon the exact time of issuance of the duplicate original warrant. In all other respects, the method of issuance and contents of the warrant shall be that required by subsection (a) of this rule. 5.) Use of a search warrant, coupled with a report that tracks the proper procedural requirements should normally eliminate a motion to suppress evidence

9 4.) Contents of Report Blood draw without a warrant a.) Time is of the essence since blood alcohol level may be decreasing at the rate of 0.015% per hour. b.) Exigent circumstances coupled with probable cause provide an acceptable exception to the warrant requirement. Exigent circumstances are comprised of the totality of factors that make it impractical, given the time constraints and the need for immediate action for the officer to obtain a telephonic warrant. Time is the critical factor. c.) Remember, when preparing your report, the reasonableness of your conduct will be judged by the totality of the circumstances. d.) By way of example, when relevant, your report should include the following information: Time spent investigating the case before probable cause to arrest had been established; Crime scene issues that delayed transport of defendant to medical facility; Action by defendant that delayed transport (e.g. flight, false information, resisting arrest, injury and the need for onscene medical treatment; Co-defendants that had to be arrested and processed; Legitimate manpower and transport considerations; Defendant refused to submit to Alcotest at the station; Alcotest at the station ineffective due to control test failure, mouth pieces, solution change; Alcotest results were.00 or inconsistent with the level of intoxication of defendant;

10 Defendant failed to submit to breath test, DRE required blood test after examination; Any other factor(s) that made it impractical n the basis of time to apply for a search warrant. e.) Avoid police-created exigency exigency that is created by way of purposeful police delay, misconduct or negligence will not serve as a basis for an exception to the warrant requirement. (Example, multiple trips to departments in search of a working Alcotest)

11 5.) Contents of Report Use of Force in extracting blood sample a.) There is no issue of consent or refusal associated with the taking of a blood sample. Please may utilize a reasonable amount of force in extracting the sample. The amount of force that is reasonable is a function of the seriousness of the charges. There no prohibition on telling a resisting defendant that the blood sample will be taken by force if necessary. b.) Minor amount of force authorized for simple drunk driving ticket Enhanced levels of force authorized for serious offenses such as in aggravated assault, aggravated manslaughter cases. State v. Ravotto, 169 NJ 227 (2001). c.) When force must be used, it is vital that the level and justification be well-documented in your report. In cases involving homicides, potential homicides or aggravated assaults, seek the advice of county prosecutor to determine the appropriate level of force necessary to secure the evidence. d.) Reason for defendant s refusal should be noted in your report. Unreasonable refusal to cooperate in the blood draw allows the judge to draw an inference of guilt.

12 6.) Contents of Report Chain of Custody a.) It is vitally important that the initial marking of the blood sample and the chain of its possession while in police custody be noted so that ever person in the chain will be readily available to called into court to testify. This information is a vital part of your report in blood cases.

13 7.) Contents of Report Witnesses and Victims a.) Serve subpoena on the person who draws the blood sample immediately at the hospital and inform the person that he will be receiving a notice on when to appear in court. b.) Provide the names and addresses of all witness and victims in the report so that the prosecutor can have them added to the court s ATS system for future notification of court dates.

14 b.) Evidence of Intoxication Based upon Urine Sample 1.) Analysis of a urine sample will not provide information related to blood alcohol level, but will provide circumstantial evidence of the recent consumption of narcotics, hallucinogens, chemical inhalants and habit producing drugs. 2.) Prior New Jersey law authorized the taking of a urine sample as a search incident to a lawful arrest. This is probably not good law any longer as a result of McNeely. 3.) Your report should detail how the urine sample was obtained, including the monitoring of the taking of the sample by a same-sex officer. Report should reflect standard marking of sample and chain of custody. 4.) Although there is no right to refuse to provide a urine sample, there does not appear to be any level of force that would be deemed reasonable under New Jersey law.

15 c.) Defendant under the influence of Drugs 1.) Introduction The preferred procedure calls for the use of expert testimony, although the fact-finder at trial may also conclude (circumstantially) that the defendant was under the influence of drugs without the benefit of expert testimony. 2.) In addition to DRE report/testimony (when available), your report should reflect in precise detail the following evidence where present: Admissions by defendant of recent drug use; Odor of marijuana on the person or within his recently occupied vehicle; Paraphernalia, medications of CDS found on defendant s person, vehicle or vicinity; Detailed review of defendant s demeanor, behavior, speech, admissions as to recent drug use, performance on FST, witness statements; Your own opinion based upon your prior training and experience, which should be set forth in the report; In marijuana cases, include your opinion based upon your observations and training (including police academy).

16 d.) Evidence of intoxication based solely upon Alcotest Evidence [See sample police report] 1. ) Common errors in police reports related to Alcotest procedures are the following: Inability to account for 20 minute observation/deprivation issues [It is common multiple, inconsistent times reported in different parts of the same report.]; No secondary waiting period following mouth alcohol, gum, etc.; No report of observations, including no burping, vomiting; No report related to objects in oral cavity (tongue rings, etc); No mention of mouth piece changes; No mention of removing all portable electronic devices, cell phones; No mention of reading instruction prior to each test (refusal cases); Each of these issues should be detailed in the report.

17 e.) Evidence of intoxication based solely upon driver under the influence Police officers have an enormous amount of personal experience and training in dealing with intoxicated people. This foundational evidence is critical in an under the influence of alcohol case. Your report should include: Your experience and training as a police officer with regard to intoxicated persons; How many DWI arrests you have made; Link defendant s conduct to your prior experiences; Results of FST Admissions as to alcohol consumption or intoxication General demeanor, mood swings, voice and appearance Observed or inferred driving conduct (accident, swerving, high speed) Remember, this will be the only evidence of intoxication. Your report should paint a picture that truthfully & persuasively reflects the intoxicated state of the defendant.

18 f.) MV Stops & Seizure of Physical Evidence - Fourth Amendment Issues Remember that judges will rule on motion to suppress issues based upon objective reasonableness and the totality of the circumstances. You report will provide the basis for both of these considerations. 1.) Automobile exception; It requires both probable cause and exigent circumstances. Exigent circumstances make it impractical to obtain any type of search warrant. Reasonableness of police action will be judged on the totality of the circumstances. Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk As we have previously noted, [f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant. State v. Pena-Flores, 198, NJ 6, 29 (2009). Your report must specify ever fact that made it impractical to obtain a search warrant for the vehicle. In the DWI setting, the towing of the vehicle to an unsupervised yard leaves the vehicle open to interference by non-law enforcement personnel.

19 2.) Plain View: requires that officer lawfully be in the view area, the discovery of the evidence was inadvertent and that there was probable cause to associate the item with a violation of the law. Report should stress these elements, being mindful that often harmless objects can prove to be valuable evidence. (a can opener, empty beer cans, plastic baggies, vomit, blood stains. 3.) Consent: Must be freely and voluntarily given. In the context of an automobile search, your report should reflect a reasonable suspicion that evidence was in the vehicle before you asked for consent to search. Your report should stress the reasonable suspicion. This requirement applies for both operational vehicles and those that are broken down. Make sure report reflects advice to defendant of his right to deny consent, limit scope of search and time of search. Also that defendant was not subject to force, threats or any form of coercion. 4.) Incident to lawful arrest Does not apply to a search of the vehicle. Limit to person of the defendant and his immediate area. Object is to recover weapons, implements of escape and evidence. 5. Weapons Search (frisk) must be based upon reasonable and articulable suspicion that weapons are secreted in the passenger compartment of the vehicle or on the person of the defendant. Your report should stress the reasonable suspicion. 6. MV Stop based upon anonymous tip When vehicle is located, please make sure that report indicates link between broadcast vehicle description and vehicle stopped. 7. MV Stop based upon MDT Unless vehicle registration is expired, revoked, vehicle reported stolen or fictitious plates, attempt in your report to link driver with pedigree information in the MDT look-up. Also mention criteria for vehicle selection for MDT look-up in your report.

20 g.) Miscellaneous Issues School Zones & Crossings Mention of this issue can provide enormous leverage for a prosecutor in resolving a case. The school zone offense need not be initially charged (90-day statute of limitations). Remember to note in report if defendant drove thru a school zone or school crossing with the municipality prior to the MV stop. School zone issues also critical in criminal cases involving assault by auto. Adverse Inferences Judges and juries can draw and inference of guilt based upon the refusal to properly perform FST, submit to a breath test or voluntarily provide a blood test (perhaps urine sample too). This evidence must be clearly noted in your report. Admissions There is nothing more persuasive of guilt than defendant s admission that he is (was) intoxicated. Note and report phrases such as I ve had too much to drink I could not perform that test while sober I m just drunk etc. If this is electronically recorded, please note in report.