By J.P. McCormick, Summer Associate
Edward J. Dimon, Managing Partner of Carluccio, Leone, Dimon, Doyle & Sacks, L.L.C., recently accomplished a very rare legal feat when he defended a client against unfounded allegations originating from a client’s refusal to take a Breathalyzer test and instead demanding that his blood be drawn because he was so certain of his innocence. In New Jersey, however, if you refuse a Breathalyzer test, you are in violation of the “implied consent” you gave when receiving your license to such a test. Due to the automatic “implied consent,” if you refuse a Breathalyzer, you will face the same loss of driving privileges as a DUI offense, including loss of your license, a fee, and 12 hours minimum participation at the Intoxicated Driver Resource Center. The police officer ignored the defendant’s request for a blood test, and instead he was charged for refusing a Breathalyzer test, as well as other driving violations.
The additional alleged violations were careless driving and failure to maintain lanes, both of which are tied to drunk driving. In fact, the police officer indicated that he pulled the defendant over because his lights were not on, even though the defendant’s car automatically always had its lights on.
Normally, it is very difficult for defendants to challenge these allegations. However, the police officer had videotaped the encounter. Based on his clients adamant insistence on his innocence, as well as the oddity of the police officer refusing to allow a blood test and that the client’s car lights are always on, it was of central importance to get a copy of the recorded event. For months Dimon requested the video tape, and for months his demand was ignored. Clearly being unfairly treated, Dimon made a Holup Motion to have the charges dropped.
A Holup motion is very rarely successful. It is a motion based on the 1992 case New Jersey v. Holup, in which the court allowed the defendant to move to dismiss all claims based on failure by the prosecutor to provide appropriately requested evidence. Normally, a court simply rejects a Holup Motion and gives the prosecutor more time.
However, in a rare application of the rule, the court granted Dimon’s motion and dismissed the charges. This is so rare, that since 1992 when the case was decided, only seven cases in New Jersey have even discussed the Holup case, let alone applied it. It is a testament to Dimon’s skills as an advocate, and the dedication of the defendant to fight for his innocence, even in the face of excessive delay and adversity.
J.P. McCormick is in his third year at the University of New Hampshire School of Law, where he is an Executive Editor for the University of New Hampshire Law Review. Upon finishing his third year of law school, J.P. intends to practice in New Jersey, and is interested in all aspects of civil law. You can follow him on Twitter @JP_McCormick.