Archive for the ‘DUI/DWI’ Category

US Supreme Court rules Lab Report Not Admissible in DWI Case.

March 28, 2012 Leave a comment

US Supreme Court rules Lab Report Not Admissible in DWI Case.  Bullcoming v New Mexico   131 S. Ct. 2705  (2011)


The Sixth Amendment’s Confrontation Clause gives the accused “[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.

The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.


Benjamin G. Kelsen, Esq. named a “Super Lawyer”

March 23, 2012 Leave a comment

Benjamin G. Kelsen, Esq., of  The Law Offices of Benjamin G. Kelsen, Esq. LLC, a Teaneck New Jersey based firm with offices in Lakewood and Newark, has been named to the New Jersey Rising Stars list as one of the top up-and-coming attorneys in New Jersey for 2012.  Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection  for this respected list is made by the research team at SuperLawyers. SuperLawyers, a Thomson-Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a state wide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The Rising Stars lists are published nation wide in Super Lawyers magazines and in leading city and regional magazines across the country.

For more information about SuperLawyers, go to The first SuperLawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 SuperLawyers was acquired by ThomsonReuters the world’s leading source of intelligent information for business and professionals

New NJ State Supreme Court Ruling : State v. Cecilia X. Chen (A-69-08)(063177)

August 24, 2011 Leave a comment

In this appeal, the Court considers whether suggestive behavior by a private party, without any state action,
should be evaluated at a pretrial hearing to determine whether an eyewitness’ identification may be admitted at trial.

There are many DWI cases where the court must decide “was defendant really the driver?” Where the issue is at play it is crucial that defense attys review the process of identification. When the police initiate the process, the law has been clear that defendant is entitled to Wade hearing on whether the process was too suggestive. But what is there is no state action, I.e. it is a friend or relative of the victim who was too suggestive? The Supreme Court today,in State v Chen, the Court ruled that state action or not, the process of eyewitness ID is so fraught with prejudicial peril that the trial court must entertain the Wade type hearing regardless.
HELD: Even without any police action, when a defendant presents evidence that an identification was made under highly suggestive circumstances that could lead to a mistaken identification, trial judges should conduct a preliminary hearing, upon request, to determine the admissibility of the identification evidence.
1. This case is not about government conduct.  As a result, the Court is not concerned about deterring future conduct by law enforcement officers.  Nonetheless, the Court must consider the admission of eyewitness identifications tainted by private suggestive procedures in light of the rules of evidence and the trial courts’ gatekeeping function.  Courts have a gatekeeping role to ensure that unreliable, misleading evidence is not admitted. (pp. 12-15)
2. The Court notes that identification evidence has historically raised serious questions about reliability. Today’s decision in State v Henderson contains a broader examination of the extensive body of scientific evidence that has developed in the past thirty years.  Among other things, that evidence reveals the suggestive effect that private actors  can have on an eyewitness’ recollection of events.  In Henderson, the Court concluded that non-State actors like cowitnesses and other sources of information can affect the independent nature and reliability of identification evidence and inflate witness confidence. (pp. 15-26)
3. Because of the pivotal role identification evidence plays in criminal trials, and the risk of misidentification and wrongful conviction from suggestive behavior – whether by governmental or private actors – a private actor’s suggestive words or conduct will require a preliminary hearing under Rule 104 in certain cases to assess whether identification evidence is admissible.  Today in Henderson, the Court modified the traditional Manson/Madison test and held that defendants can obtain a pretrial hearing by showing some evidence of suggestiveness that could lead to a mistaken identification.  The Court makes a modification to Henderson in cases in which there is no police action, requiring a higher, initial threshold of suggestiveness to trigger a hearing, namely, some evidence of highly suggestive circumstances as opposed to simply suggestive conduct.  The Court holds that the following modified approach shall apply to assess the admissibility of identification evidence when there is suggestive behavior but no police action: (1) to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant has the burden of showing a very substantial likelihood of irreparable misidentification. (pp. 26-
30) 4. Applying the above framework to the facts of this case, the Court finds that JC’s words and actions were so highly suggestive that a pretrial hearing is warranted to assess the admissibility of Helen’s identification evidence.  The Court therefore remands the case to the trial court for a Rule 104 hearing. (pp. 30-32)

Senate Gives Nod to Measure That Considers Refusal as Prior DWI

April 29, 2011 Leave a comment

Senate Gives Nod to Measure That Considers Refusal as Prior DWI

Michael Booth


The state Senate on Thursday approved a bill that would overturn a Supreme Court ruling that breath-test refusal convictions do not count as prior DWI offenses for sentencing purposes.

In a 31-0 vote, the Senate passed S-2671 , which would upend State v. Ciancaglini , 204 N.J. 597 (2011). There, the Court held it was not clear from the state’s drunken-driving statutes that prior convictions for refusal were to be considered prior convictions at sentencing.

The bill clarifies that refusals are prior convictions under the drunken-driving statute and that drunken-driving convictions are prior convictions under the refusal statute.

On May 1, 2008, Rumson police stopped Eileen Ciancaglini for erratic driving. A breath test turned up a blood-alcohol content of .17 percent, more than twice the legal limit of .08 percent.

She pleaded guilty to DWI but argued that she should be treated as a first-time offender despite her May 18, 2006, refusal conviction. She cited State v. DiSomma 262, N.J. Super. 375 (1993), which said refusal is not a prior DWI.

But a municipal judge treated her as a second offender, sentencing her to six months in jail and suspending her driver’s license for 10 years. He relied on State v. Cummings , 184 N.J. 84 (2005), which raised the burden of proof for a refusal conviction from a preponderance of the evidence to beyond a reasonable doubt, putting refusal on par with a DWI conviction, prosecutors said.

Monmouth County Superior Court Judge Anthony Mellacci Jr. reversed, holding that DiSomma still applied. He sentenced Ciancaglini to 30 days in jail and a one-year license suspension.

The Appellate Division reversed and reinstated the municipal ruling, holding that Cummings had equalized DWI and refusal offenses, and thus that they were interchangeable for sentencing purposes.

But a unanimous Supreme Court overturned the appellate ruling and reinstated the less-severe penalty, saying that the “Legislature clearly understood how to provide for enhanced sentences by reference to prior convictions,” but did not.

The bill also would change the burden of proof in establishing the elements of a refusal violation from a preponderance of the evidence to beyond a reasonable doubt. Courts have held that a refusal conviction is quasi-criminal in nature and therefore requires proof of each element beyond a reasonable doubt.

The bill is sponsored by Sens. Jefferson Van Drew, D-Atlantic, and Sandra Cunningham, D-Hudson. An identical measure, A-3762 , is pending before the Assembly Law and Public Safety Committee.

DWI Conviction Entered in Face of Reasonable Doubt Is Reversed

February 25, 2011 Leave a comment

DWI Conviction Entered in Face of Reasonable Doubt Is Reversed

Charles Toutant

New Jersey Law Journal

February 24, 2011




An Essex County judge who shifted the burden of proof to the defendant in a drunken-driving case and convicted her despite finding reasonable doubt was reversed Thursday by a state appeals court.

The Appellate Division rejected the state’s request for a limited remand, on the theory that Superior Court Judge Robert Gardner merely spoke imprecisely. “The fact-finder found a reasonable doubt yet convicted defendant nonetheless. If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt,” the appeals court said in State v. Driscoll, A-5842-08.

Patricia Driscoll was pulled over after a Fairfield police officer saw her driving very slowly on Route 46. She also struck a curb and ran a red light. Driscoll failed field sobriety tests, could not recite the alphabet beginning with the letter “K,” seemed disoriented and staggered while walking.

A breath test yielded a reading of zero alcohol in her blood, but a urine test revealed the presence of codeine and butalbital, a barbiturate.

Convicted in municipal court, Driscoll appealed to the Law Division. There, the state contended that she was guilty because she was under the influence of a narcotic. She was taking a drug called Fioricet, which contained codeine and butalbital, to treat chronic headaches, and Paxil, which enhanced the effects of the codeine and butalbital.

The defense presented testimony from Driscoll’s treating neurologist, Nabil Yagzi, who said her erratic driving on the night of her arrest was the result of Lyme disease, fatigue and a condition called presyncope, which causes dizziness, disorientation, loss of balance and mild cognitive dysfunction.

Yagzi testified that the Fioricet, which he prescribed, would not affect Driscoll’s driving because her brain had adapted to the medication regimen through long-term use.

Gardner, in deciding to let Yagzi testify, said he would rule whether Yagzi “produced a reasonable doubt or not with regard to the allegations alleged against the defendant.” But after hearing Yagzi’s testimony, Gardner said the defense “has the burden of proof with regard to raising the defense in this matter.”

In his oral opinion on June 16, 2009, finding Driscoll guilty, Gardner said he did not find Yagzi’s testimony credible. He said Driscoll’s actions on the night of her arrest were consistent with symptoms of fatigue and headaches as well as drug or alcohol intoxication.

“As a reasonable doubt exists as to the etiology of the observed symptoms, the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered in this case,” Gardner said.

On appeal, Driscoll maintained that Gardner committed plain error by imposing a burden of reasonable doubt on her and convicting her after concluding reasonable doubt existed. The state, on the other hand, argued that the trial judge did not intend to impose the burden of proof on the defendant, but was confusing in his verbiage.

But Judges Edith Payne and Ellen Koblitz refused to discount the trial judge’s findings of reasonable doubt.

“Findings are not formulaic phrases lacking serious import. When the trial court finds a reasonable doubt, we accord great weight to that finding. We do not accept that a finding of reasonable doubt is merely a poor word choice or result of some confusion in the court’s mind,” the panel said.

The panel said Driscoll “had a prescription for a medication that explained the presence of drugs in her urine. This evidence could have easily raised a reasonable doubt in the fact-finder’s mind.”

The state has not decided whether try to seek certification from the Supreme Court, says Assistant Essex County Prosecutor Maria Guerrero, who argued the appeal.

“My reading of the transcript is that the judge was not trying to shift the burden of proof to the defendant. The court did not agree,” Guerrero says.

The state’s contention that Gardner misspoke when he imposed a burden of proof on Driscoll fell flat because he made the same statement three times on the record, says defense lawyer Scott Kobil of Latham & Watkins in Newark, who took the case as a pro bono assignment.