Pretrial Motions and Preserving a Claim

Submitted by New Jersey DWI lawyer, Jeffrey Hark

The recent case State v. Parikh involved a DWI charge that was disputed on jurisdictional grounds. However, in the background of the case there was another issue that deserves special attention on this blog. In a last-ditch attempt to have his case dismissed, Parikh invoked the “fruits of a poisonous tree doctrine” to have all evidence relating to his being pulled over  excluded. The “fruits of a poisonous tree doctrine” is a general legal doctrine that essentially says that any evidence stemming from an illegal search or seizure is inadmissible.  This is not a foolproof legal argument as there are often exceptions. For example if a search warrant was found to be invalid based on  probable cause but was executed in good faith by government agents, that evidence may still be admitted. What is important to note in the Parikh case is that he was not permitted to argue any of the issues on appeal because the attorney did not file any motion to suppress evidence prior to trial.

The court ruled the defendant’s failure to make a pretrial motion to municipal court seeking to suppress evidence constitutes a waiver of objection during trial de novo in the Law Division (R. 7:5-2(d)). This applies to any type of case but DWIs are a particularly good lens to view the implications of this rule through. If you are charged with a DWI and your attorney does not preserve claims by raising them in a pretrial motion this should raise an alarm for you.  As a defendant you may think you are in an unwinnable position if you have been pulled over and failed a field sobriety test followed by a blood test. However there is a litany of reasons why such evidence may be suppressed that may not occur to you but should occur to your attorney. These include due process considerations, such as consent, constitutionality of roadblocks, probable cause for pulling a vehicle over if there was no visual evidence of driving, just to name a few.

These claims must be made in a pretrial motion or they will be lost forever. Making these claims in DWI cases is especially advantageous because on each appeal the court will look at the case de novo. This means that they will not give any deference to the lower court’s analysis of your legal defenses. So, a motion for suppression of evidence that is rejected in municipal court  is born anew in the Law Division or Superior Court, Appellate Division, but only if it has been preserved. (See also State v. McLendon, 331 N.J. Super. 104 (App. Div. 2000)).

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