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Drunk Driving Discovery

The law entitles drunk driving defendants to pre-trial discovery. R.3:133; R.7:42(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendants guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976).

A wide variety of materials in the States possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendants right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500.

The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendants request for discovery. Ford supra at 51; see Tull, supra at 500.

The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986).

A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible.

Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus , information concerning conditions under which tests were held, the machine operators competence, the particular machines state of repair and identification, and documentation of the ampoule used for defendants breath tests are all relevant inquiries. Id.

What the State Must Automatically Provide

In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes:

> summonses, front and back, > drinkingdriving report ["DDR"], including a check off list of observations and a narrative of investigation, > alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] > assay report for ampoule chemicals ["assay"], > breathalyzer operator certification card ["BOCC"], > certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution.

Th e State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52:

> full identification of the instrument used, > the date it was first placed in service by the State, > the type of instrument used, > the manufacturer of the instrument, > the model number of the instrument, > results of coordinators testing of the instrument for approximately one year before and including the next testing after defendants tests, > the time of administration of the tests, > the result. > reports and relevant documents signed by defendant, > reports concerning defendants sobriety, including blood and urine tests. What Else Should be Supplied

The defense has requested, as other discovery, items such as:

> ampoules, > BTIICs for the 12 months preceding the arrest > breath testing instrument inspection procedures, > ampoule random sample testing procedures, > radio frequency interference testing procedures, > FCC licenses for radio frequencies assigned to police radio base.

Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), revd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974).

In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIICs for the 12 months before a defendants breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIICs before and after the tests.

And with BTIICs since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated

Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others:

1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984)

2. The operator was qualifiedi.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 8788 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 > whether the lot number in the BTIICs "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police.

Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine Who manufactured the breathalyzer used in the defendants case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003.

If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendants right to equal protection under the law, and the defendant should at least be given the benefit of the doubt.

Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination.

Defense counsel must prepare cross-examination prior to court, not during a trial.

Discovery Needed for Cross-Examination About Breathalyzer Inspection

Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification.

Do consecutive BTIICs bracket" (i.e., are they dated before and after) the date of the defendants breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense.

Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra.

Is the breathalyzers assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable.

What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainants identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendants right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985).

If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all.

Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI.

What does the certificate of analysis for the simulator solution say anyway?

Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate.

Discovery in the Municipal Court in 2002 7:7-7. Discovery and Inspection

(a) Scope. If the government is represented by the municipal or a private prosecutor, discovery shall be available to the parties only as provided by this rule, unless the court otherwise orders. In the absence of a municipal or private prosecutor, discovery shall be available to the parties in the manner directed by the court. All discovery requests by defendant shall be served on the municipal prosecutor, who shall be responsible for making government discoveryavailable to the defendant. If the matter is, however, not being prosecuted by the municipal prosecutor, the municipal prosecutor shall transmit defendants discovery requests to the prosecutor, or, if there is no prosecutor, the municipal prosecutor shall transmit defendants court ordered discovery requests to the complaining witness.

(b) Discovery by Defendant. In all cases involving a consequence of magnitude or when ordered by the court, the defendant, on written notice to the municipal prosecutor or private prosecutor, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant:

(1) books, tangible objects, papers or documents obtained from or belonging to the defendant;

(2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded;

(3) grand jury proceedings recorded pursuant to R. 3:6-6;

(4) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports, that are within the possession, custody or control of the prosecuting attorney;

(5) reports or records of defendants prior convictions;

(6) books, originals or copies of papers and documents, or tangible objects, buildings or places that are within the possession, custody or control of the government;

(7) names and addresses of any persons whom the prosecuting attorney knows to have relevant evidence or information, including a designation by the prosecuting attorney as to which of those persons the prosecuting attorney may call as witnesses;

(8) record of statements, signed or unsigned, by the persons described by subsection (7) of this rule or by co-defendants within the possession, custody or control of the prosecuting attorney, and any relevant record of prior conviction of those persons;

(9) police reports that are within the possession, custody or control of the prosecuting attorney;

(10) warrants, that have been completely executed, and any papers accompanying them, as described by R. 7:5-1(a);

(11) the names and addresses of each person whom the prosecuting attorney expects to call to trial as an expert witness, the experts qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of the expert witness, or if no report wasprepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert witness may, upon application by the defendant, be barred from testifying at trial.

(c) Discovery by the State. In all cases involving a consequence of magnitude or when ordered by the court, the municipal prosecutor or private prosecutor, on written notice to the defendant, shall be allowed to inspect, copy, and photograph or to be provided with copies of any relevant:

(1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies of these results or reports within the possession, custody or control of the defendant or defense counsel;

(2) any relevant books, originals or copies of papers and other documents or tangible objects, buildings or places within the possession, custody or control of the defendant or defense counsel;

(3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements;

(4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the government may call as a witness at trial; and

(5) the names and addresses of each person whom the defense expects to call to trial as an expert witness, the experts qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. If this information is requested and not furnished, the expert may, upon application by the prosecuting attorney, be barred from testifying at trial.

(d) Documents Not Subject to Discovery. This rule does not require discovery of a partys work product, consisting of internal reports, memoranda or documents made by that party or by that partys attorney or agents, in connection with the investigation, prosecution or defense of the matter. Nor does it require discovery by the government of records or statements, signed or unsigned, by defendant made to defendants attorney or agents.

(e) Protective Orders.

(1) Grounds. Upon motion and for good cause shown, the court may at any time order that the discovery or inspection, copying or photographing sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection ofconfidential relationships and privileges recognized by law; and any other relevant considerations.

(2) Procedures. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone. If the court enters a protective order, the entire text of the statement shall be sealed and preserved in the courts records, to be made available only to the appellate court in the event of an appeal.

(f) Time and Procedure. A defense request for discovery shall be made contemporaneously with the entry of appearance by the defendants attorney, who shall submit a copy of the appearance directly to the municipal prosecutor. If the defendant is pro se, any requests for discovery shall be made in writing and submitted by the defendant directly to the municipal prosecutor. The municipal prosecutor shall respond to the discovery request in accordance with paragraph (b) of this rule within 10 days after receiving the request. Unless otherwise ordered by the judge, the defendant shall provide the government with discovery, as provided by paragraph (c) of this rule within 20 days of the prosecuting attorneys compliance with the defendants discovery request.

(g) Continuing Duty to Disclose; Failure to Comply. If a party who has complied with this rule discovers, either before or during trial, additional material or names of witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that partys attorney of the existence of these additional materials and witnesses. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to permit the discovery, inspection, copying or photographing of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate.

Note: Source-Paragraph (a): new; paragraph (b): R. (1969) 7:4-2(h), 3:13-3(c); paragraph (c): R. (1969) 7:4-2(h), 3:13-3(d); paragraph (d): R. (1969) 7:4-2(h), 3:13-3(e); paragraph (e): R. (1969) 7:4-2(h), 3:13-3(f); paragraph (f) new; paragraph (g): R. (1969) 7:4-2(h), 3:13-3(g). Adopted October 6, 1997 to be effective February 1, 1998; paragraph (c) amended July 5, 2000 to be effective September 5, 2000.

7:7-8. Form of Subpoena

In cases involving non-indictable offenses, the law enforcement officer may issue and serve subpoenas to testify in the form prescribed by the Administrative Director of the Courts. Courts having jurisdiction over such offenses, the Division of State Police, the Division of Motor Vehicles and any other agency so authorized by the Administrative Director of the Courts may supply subpoena forms to their law enforcement officers. After service of a subpoena, the officer shall attach a copy of the subpoena to the complaint and promptly file those documents with the court.

Note: Source-R. (1969) 7:3-3. Adopted October 6, 1997 to be effective February 1, 1998.


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