In this morning’s Appellate Division decision the Court ruled that it was improper to order the sequestration of the defendant’s expert in a drunk driving trial. The Court went on to reason that experts in these types of cases know nothing about the facts and their presence in the courtroom is necessary for them to be able to comment upon the testimony of fact witnesses or other experts.
Download a copy of State v. Popovich.
In a comprehensive, written decision stemming from a municipal appeal, a Judge of the Superior Court, Law Division, has construed the 20-minute observation period that is required as a foundational proof for the admissibility of Alcotest blood-alcohol results. In the municipal appeal, captioned State v. Nagorniak, Judge Mitchel Ostrer, J.S.C., ruled that the requirement of a 20-minute observation period is not merely dicta in the Supreme Court’s decision in State v. Chun, 194 N.J. 54 (2008), but rather is a foundational issue that must be proved by the State by clear and convincing evidence. The judge also went on to hold that although the Alcotest operator need not be the only person continuously observing the test subject, an observing police officer who is not a qualified operator must know what to look for and what specifically to observe about the test subject in order to meet the State’s burden. Without such proofs, the Alcotest results are inadmissible.
The Law Division’s decision in State v. Nagorniak has not been approved for publication. Accordingly, its use is extremely limited and must be exercised within the limitations set forth by Rule 1:36-3.
Download a copy of State v. Nagorniak.
As a result of a municipal appeal, the Law Division has acquitted a defendant who claimed that her operation of a motor vehicle while intoxicated occurred as a result of so-called “sleep driving” from taking the drug Ambien. Despite a blood alcohol level of ..10%, the defendant was able to successfully argue that she was the victim of common-law pathological intoxication as a result of the unforeseen impact of the Ambien she had consumed before going to bed.
The Law Division’s decision in this case, under the caption State v. Connelly has not been approved for publication. Accordingly, its use is extremely limited and must be exercised within the limitations set forth by Rule 1:36-3.
Download copy of State v. Connelly.
