I have another case though that I’d like to talk to you about if I can. It’s one last case for the day that I’d like to talk about in New Jersey. This is a case where my client was charged with a DUI, it’s NJSA 39:4-50. He was also charged with a DUI in a school zone which is NJSA 39:4-50 and that’s subdivision G. This case dates back to September of 2013.
How the Police Will Proceed When They Believe a Driver Is Impaired by a Substance Other Than Alcohol
This case was literally dismissed just a couple of days ago. My client was operating a motor vehicle, he was driving in a very slow manner and he was actually pulled to the side of the road and the police came along. They thought that he was under the influence of an impairing substance. They did not believe he was under the influence of alcohol so they didn’t give him a breath test but they did take him to the hospital because he was somewhat incoherent.
The Driver Is Transported to a Hospital to Undergo a Blood Draw with a Police Department-Provided Blood Kit
For a variety of reasons, one was his own safety but the other was to figure out whether or not there was any forensic test they could do to try to establish that he was under the influence of something. The police provided a blood kit to the personnel at the hospital.
Blood kits are police department equipment essentially and it’s a sealed kit. They unseal it and inside of the blood kit are vials for blood to be deposited into. There’s a tourniquet, there’s Betadine swabs and a variety of other items that are used or given to the personnel at the hospital so that they could draw blood.
The Police are Responsible for Following Proper Protocol in Storing and Transporting the Blood to a State Laboratory for Testing
They then give the blood to the police and then the police are charged with refrigerating the blood and ultimately getting it into the hands of the state lab. That’s exactly what did happen in this particular case.
My client’s blood was drawn through a blood kit by personnel at the hospital. The police did gather that evidence, they did refrigerate it, and they did send it to the police lab. I demanded all of the police reports including the lab results and we went to court. We went to court several times and the prosecutor’s office had never provided to us the results of the laboratory analysis report on his blood.
Providing Discovery and a “Holup” Motion
After a series of court appearances I decided to file what’s called a “Holup” motion in the State of Jersey. It essentially asks for the judge to study deadline on providing documents that are essential in the case to the defense. If those documents or discovery items are not provided within the prescribed period of time, the judge can decide on a sanction or a penalty that the state may pay for not providing that.
A Holup Motion Ensures the Prosecution Complies with the Timely Release of Discovery Needed for the Defense
Lo and behold, I did present to the judge and the prosecutor a motion that said that after a certain date that if the laboratory analysis report results of my client’s blood results were not provided—and since the judge did agree to sign that order and say that if it wasn’t provided within a reasonable time—that that item would be suppressed. This would essentially disable the DUI case.
So I made this motion before the judge. He agreed to sign it and before putting the deadline date down he asked the prosecutor in front of me and in open court how much more time they needed to get that result. The prosecutor indicated that he would need an additional 30 days and the judge signed the order for 30 days later.
Those 30 days ran out earlier this week and my client and I went to court. We had our signed order in hand indicating that if on that date the laboratory report on my client’s blood wasn’t provided that the judge agreed to suppress the evidence. Again, this would basically not allow any evidence of my client’s blood result into evidence at a trial.
If the Prosecution Fails to Comply with a Judge’s Order Based on a Holup Motion, the Evidence Cannot Be Bought against a Defendant in Trial
The state failed to provide the results of the blood test and the judge actually suppressed the blood evidence result so the DUI case that was pending against my client was dismissed.
Cases Based on Evidence from a Blood Draw Are Defensible
This is not a typical result and every case is very different. I don’t want to mislead people to think that this will happen in their case or any case or every case—that’s simply not true. Many people do think that blood cases are indefensible. I take a much different approach to them.
I’ve prosecuted them and I’ve also defended them and I find that there are a lot of nuances in these cases. I find that they are defensible and, of course, everybody’s case is different.
I would suggest that anybody that has a case that involves blood or urine even, because those cases can be also tricky for the state to prove as well, if they give me a call we can discuss the case in detail.
Interviewer: The moral story for that is to keep fighting, keep trying to see what will happen. You could never tell what could happen and to never give up on that.
A Defense Attorney Should Fully Explain Strategies with Clients and Welcome Their Input
Carl Spector: Exactly. To have a strategy that you share with your client, discuss with your client and get input from your client because you’d be quite happily surprised that clients have a wonderful perspective. Once they start thinking about their case with an attorney who is open to hearing their suggestions.
This was my suggestion of course, my client didn’t know about holup motions. My client was patient enough to give me an opportunity to let the case “get old enough” instead of being anxious to resolve the case earlier by taking some kind of a plea, for instance.
He was patient enough and cooperative enough with me at the right time when I filed the motion so we had the benefit of the law and of the facts of this particular case work to our advantage.
By Carl Spector