Law Offices of Jimmy Johnson PLLC

Criminal Law Attorney in Flushing, New York & Newark, New Jersey:

When you’re faced with criminal charges or an arrest, it’s only natural to feel scared and alone. If you’ve recently been charged with a crime, calm your fears and give yourself defense options by turning to the Law Offices of Jimmy Johnson PLLC, a criminal lawyer in Flushing, NY. Law Offices of Jimmy Johnson PLLC can handle all types of criminal law cases, including:

• Homicide
• Car Jacking
• Sex Crimes
• Drug Crimes
• Violent Crimes
• White Collar Crimes
• Juvenile Crimes
• DUI Or DWI Offenses







So, whether you’re facing a traffic infraction at the state level or have been arrested for a federal crime, the Law Offices of Jimmy Johnson PLLC is prepared to litigate your case.  During your legal proceedings, the Law Offices of Jimmy Johnson PLLC will serve as your advocate and offer you ongoing support.  So, the Law Offices of Jimmy Johnson PLLC will fight for you to receive a fair trial, challenge any evidence that is illegally obtained, and make certain that your defense is presented as strongly as possible.  Additionally, the Law Offices of Jimmy Johnson PLLC will:

• Carefully investigate your case to uncover evidence.

• Interview all parties involved, including police.

• Bring in witnesses, when appropriate, to testify on your behalf.

• Present you with defense options to help you combat your charges.

• Negotiate with prosecutors to have your charges or sentence reduced, if possible.

To learn more about the Law Offices of Jimmy Johnson PLLC's criminal law services, call us today at 347-426-8803 to set up an initial Free case evaluation.

 

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. Thus, Defense and Expert demanded the following additional Discovery:

1 All gas chromatograph results and notes.

2. All results and notes of any tests performed.

3. The operator's manual for all instruments used to test the substances; 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 applicable Open Public Records OPRA laws/ Freedom of Information.

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 advise in writing the website link to 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.

6.    The most recent training manual for Field Sobriety Testing by Police department

7.    The NHTSA Manuals dealing with field sobriety in Police department.

8.    Documents from NHTSA dealing with field sobriety tests in Police department

9.    Documents from NJ Division of Highway Traffic Safety dealing with field sobriety tests in Police department.

10.Documents used by Police department involving HGN testing

11.Documents showing Defendant's informed consent to taking of samples.

3. File applicable Motions without lengthy briefs examples:

1.    Suppress Evidence  [must be in writing]

2.    Miranda/Privilege

3.     Exclude Lab Tests

4.     Demand for Specific Discovery

5.    Notice of Objection to Lab Reports

6.    Speedy Trial

It is a good idea to be detailed in your objection to lab report. For example:

“The defendant through attorney, Kenneth A. Vercammen, does hereby object to the entry of proffered laboratory certificate as evidence at the time of trial in this matter, pursuant to Bullcoming v New Mexico 131 S. Ct. 2705 (2011), Crawford v. Washington 541 U.S. 36 (2004).

  The certificate is not clear, and has not been fully certified. The certificate fails to detail the analysis performed, the subscriber's full training and experience, the nature and condition of the equipment used, or the full conclusions reached by the subscriber. Defendant also objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.

            The State has failed to provide all results and notes. The defense requests these results and notes.

            Please Take Further Notice that at the time of trial, the defendant shall contest the chain of custody with respect to the sample, and subsequent tests performed thereon.”

4. Copy and Mail Discovery to Your Client to Review and Comment

    Ex: Please read the enclosed police records, which are called Discovery from the Prosecutor. Please write down any inaccurate statements or comments and mail them back to the law office. Please reference the page and paragraph of the inaccurate details. Do not call to indicate the inaccurate details. Keep the portions of Discovery that are correct.

5. Watch the video, then have client watch the video either in your office or at home

    ex: Please find enclosed a copy of the DVD video of your police stop. Please carefully type up or hand print detailed notes indicating what happened and what was said plus write the exact time of each occurrence.  When you have completed your review please return the video along with your notes and observations to our office. It is important to write down everything the police said, and everything you said. Watch the video more than once.

Ex  write down:

1:01:33am  officer said……

1:01:43 am       driver said

1:02: 09 am      officer did….

            If you hand write, your print must be legible. Return the video and your notes within 5 days.

6. If no response to discovery within 15 days, send reminder letters and call whoever handles discovery, then file a discovery motion

Prior to filing a discovery motion, under many court rules you must confer with, or attempt to confer with the prosecutor. Typically I try not to bother the prosecutor in their private law office, but this revised court rule requiring conferring prior to filing a Motion of Motion to compel discovery or dismiss for failure to provide discovery. If complete discovery not provided, file a Motion.

7. File your brief to challenge the stop of any vehicle     

The United States Supreme Court has declared that random stops for license and registration checks violate the Fourth Amendment prohibition against unreasonable searches.  Delaware v. Prouse 99 S.Ct. 1391, 1401 (1979).  If there was no indication that motor vehicle laws were violated or that any other laws were violated, police officers will have violated the constitutional rights of defendant by ordering him to exit the vehicle so the police on the scene could conduct warrantless searches. To help prepare for the Suppression motion, your Clients may wish to take photos of stop/accident location.  Clients may also wish to prepare a diagram of the stop/ accident location.

8. If no warrant, after discovery received file brief in opposition to the blood taken without a warrant.

As a criminal defense attorney, the US Supreme Court McNeely case will help you defend your clients. The US Supreme Court indicates a warrant should be obtained before the routine taking of blood in DWI Missouri v McNeely 133 S. Ct. 1552 (2013). McNeely 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.

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 objectively reasonable.’ ” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene. 

(b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451. Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U. S. 291, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically. 

(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.

Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.

9.  Bring a proposed Order to court on discovery

         Prepare a proposed Discovery Order.  Forward to the prosecutor and court to avoid unfair surprise. At the status conference, insist that that Prosecutor review the proposed Order for the State and Lab to provide discovery.  Often the defense attorney and prosecutor can agree on items to be provided and items no longer needed. Have the Judge sign the discovery order. If there is no agreement, the court can rule on the record which items are to be provided and which items not to be provided.

10. Prepare a written objection to chain of custody

    Some judges claim that if there is no written objection to chain of custody, the state does not have to bring in witnesses.

         The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." Evidence Rule 901. A party introducing tangible evidence has the burden of laying a proper foundation for its admission.

Where an incriminating object has passed out of the possession of the original receiver and into the possession of others, the “chain of possession” must be established to avoid any inference that there has been substitution or tampering.

            Prepare for cross-examination using the procedures and manuals of the Attorney General’s office, many of which are online.

CONCLUSION

            The defense of a person charged with DWI is not impossible. There are a number of viable defense and arguments which can be pursued to achieve a successful result.  Advocacy, commitment and persistence are essential to defending a client in any municipal court matter.

Kenneth Vercammen is an Edison, Middlesex County, NJ trial attorney where he  handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's new book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association.  As the Past Chair of  the Municipal Court Section he has served on its board for 10 years. 

Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.

Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine.  He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.

            For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.

His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings.  Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.

            Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4^th degree black belt.

KENNETH VERCAMMEN

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

NewJersey State Criminal Law/Justice Process.

New Jersey State Courts Home Page: http://www.judiciary.state.nj.us/index.html

NJS Courts Governing Rules:  http://www.judiciary.state.nj.us/rules/index.html

NJS Judicial Forms Help Page:  http://www.judiciary.state.nj.us/form_help.htm#tips

onstyle.pdf

NJS Courts Legal Practice Forms: http://www.judiciary.state.nj.us/forms.htm

NJS Manual On Style on Writing Judicial Opinions-Briefs:  http://www.judiciary.state.nj.us/appdiv/manual

NJS Courts Fees: http://www.judiciary.state.nj.us/forms/11112_courtfees.pdf

NJS Courts—NJS Rules of Evidence: http://www.judiciary.state.nj.us/mcs/rules/index.html

NJS Criminal Model Charges: http://www.judiciary.state.nj.us/criminal/juryindx.pdf

United States District Court for the District of New Jersey:  http://www.njd.uscourts.gov/ 

NJS-Essex County Bar Association (ECBA): http://www.essexbar.com

New York State Criminal Law/Justice Process: New York State  Criminal Court System.

New York State Unified Court System:  http://www.nycourts.gov/

New York State Court System- Court Forms: http://www.nycourts.gov/forms/

New York State Court System-Types of Courts: http://www.nycourts.gov/courts/

New York State Court System-Structure of the Courts: http://www.nycourts.gov/courts/structure.shtml

United States Court of Appeals for the Second Circuit: http://www.ca2.uscourts.gov/home.html