Monthly Archives: October 2011

Smelling alcohol on breath held to be a Miranda issue

 State v. Koch,  App. Div.  2011. Koch was convicted in Municipal Court of underage consumption of alcohol on private property. The judge imposed a $250 fine, and $33 court costs. At a trial de novo in the Law Division, the court found Koch guilty of the same charge and imposed the same sanctions. The appellate panel reverses, concluding that the Law Division judge erred in excluding the videotape of a motor vehicle stop of Koch about an hour and a half after the arresting officer, Patrolman DeWitt, left the scene of a party. That videotape directly impeached DeWitt’s testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt’s identification of Koch as one of the partygoers who consumed alcohol. Further, Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about 20 minutes. DeWitt’s sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence. Therefore, the statement attributed to Koch should have been suppressed for failure to give Miranda warnings.

Death by auto – alcohol and drugs trial of former Melrose Place actress Amy Locane

In the Somerset County Death by Auto (DWI) trial of former Melrose Place actress Amy Locane the judge denied a defense motion Monday that the def’s statements in the ambulance to police were not a “knowing and voluntary” waiver of Miranda … despite her .268 blood alcohol level and a shot of Ativan given by the EMS to calm her down.  Although the judge found that this was a purely factual question given the def’s apparent lucidity, this will be an issue for appeal as the defense in Locane’s case put forth unrebutted expert testimony in this case, but the court instead choose to rely on lay testimony that def was not under the influence … at least to the point of not being able to waive MirandaThe legal issue reminds one of the Court’s recent admonition in State v Marquez that intoxication is not a defense to a knowing and voluntary refusal. The question here may be – does that logic extend to Miranda as well?