Drunk Driving Discovery

The law entitles drunk driving defendants to pre-trial discovery. R.3:13 3; R.7:4 2(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 defendant's 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 State's 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 defendant's 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 defendant's 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 operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id. Other items to request (1) BALANCE TESTS: If Defendant was told to do certain "tests" -- e.g., recite ABC's, count backwards, one-leg-stand, heel-to-toe stand, heel-to-toe walk, sway test, head tilt, waist bend, elephant hang, finger-to-nose, coin pick up, etc. -- 1. documents describing how, under what conditions, and by whom each "test" was given 2. documents describing "test" results 3. training materials for each "test", including manuals, lesson plans, texts, tests, and article reprints ALCOTEST The following items are requested by defendant and defendant's expert if an Alcotest machine was used. Since my client does not have ready access to the internet, we request hard copy of documents, not a website link: I. Documents explicitly set forth in the Order accompanying State v. Chun (following each item is a reference to which section of the Order provides for that item): 1. "All Dräger Certificates of Accuracy" for the Alcotest(r) used to test Defendant's breath [3(C)(5)] 2. "Certification of Analysis" for the .10% simulator solution lot used during the Defendant's breath tests [6(B)(3)] 3. "Calibration Record" for the last calibration (must be within the last six months) of the Alcotest(r) used to test Defendant's breath, prior to the test [3(C)(6)] 4. "Certification of Analysis" for the .10% simulator solution lot identified on the "Calibration Record" document [3(C)(7)] 5. "Certificate of Accuracy" for the CU-34 identified on the "Calibration Record" document [3(C)(10)] 6. If the "Calibration Record" has a "Black Key Temperature Probe" identified by serial number, then we need the "Certificate of Accuracy" for it [3(C)(11)] 7. "Part I - Control Tests" from the last calibration [3(C)(6)] 8. "Certification of Analysis" for the .10% simulator solution lot identified on the "Part I - Control Tests" document [3(C)(7)] 9. "Certificate of Accuracy" for the CU-34 identified on the "Part I - Control Tests" document [3(C)(10)] 10. "Part II - Linearity Tests" from the last calibration [3(C)(6)] 11. "Certification of Analysis" for the .04% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)] 12. "Certification of Analysis" for the .08% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)] 13. "Certification of Analysis" for the .16% simulator solution lot identified on the "Part II - Linearity Tests" document [3(C)(8)] 14. "Certificate of Accuracy" for the CU-34 using .04% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)] 15. "Certificate of Accuracy" for the CU-34 using .08% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)] 16. "Certificate of Accuracy" for the CU-34 using .16% simulator solution lot identified on the "Part II- Linearity Tests" document [3(C)(10)] 17. "Ertco-Hart (or other NIST traceable thermometer) Report of Calibration" [3(C)(12)] 18. "New Standard Solution Report" from the simulator solution change performed immediately after the last calibration [3(C)(9)] 19. "New Standard Solution Report" from the last simulator solution change performed on the Alcotest(r) used to test defendant's breath, prior to the test [3(C)(1)] 20. "Certification of Analysis" for the .10% simulator solution lot identified on the "New Standard Solution Report" [3(C)(2)] 21. "Certificate of Accuracy" for the CU-34 identified on the "New Standard Solution Report" [3(C)(3)] 22. All Alcotest(r) Certification Cards for any officials named on either the "Alcohol Influence Report", the "Calibration Record / Control Tests / Linearity Tests", or the "New Standard Solution Reports." [3(C)(1); 3(C)(6); 6(A); 6(B)(1)] II. Documents the Supreme Court did not specifically state in the Chun Order, but which are inferred by the Order and are requested and are customarily provided without objection by the State: 1. "Alcohol Influence Report" (A.I.R.) 2. "Certificate of Accuracy" for the CU-34 calibrating unit used during the Defendant's breath tests 3. "Certification of Analysis" for the .10% simulator solution lot identified on the "New Standard Solution Report" (see #18 from Part I) 4. "Certificate of Accuracy" for the CU-34 identified on the "New Standard Solution Report" (see #18 from Part I) 5. "Certificate of Accuracy" for the "Temperature Probe," identified by serial number, for each "New Standard Solution Report" (see #18-21 from Part I) III. Documents the Supreme Court did not specifically state but are requested and which are requested by our experts: 1. At least one, but preferably five redacted A.I.R.s immediately preceding that of the Defendant. 2. All available Alcotest(r) Data Downloads from the Alcotest(r) on which the Defendant was tested. These were performed yearly or after approximately 500 tests, whichever came first, prior to State v Chun. They are now performed every six months or after approximately 500 tests, whichever comes first. 3. Verification of the date in which the Alcotest(r) used to test the Defendant's breath was first placed into service. 4. Date of fuel cell (EC) replacement, if any. 5. Complete service and repair record from the Department and Dräger for the Alcotest(r) instrument used to test the Defendant's breath. Other documents: 1) video tapes 2) audio tapes 3) state's expert reports or statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion 4) resume, curriculum vitae, or other summary of the expert's qualifications Our expert also wishes to inspect the area in which the Alcotest(s) is installed and the area immediately surrounding the installation, for purposes of observing, photographing and testing for the presence of Rf interference and EMI (electro motive interference). Our expert also requests: 1. All alcohol influence report test data for air blank, simulator, subject, linearity, and any and all other tests conducted by the National Draeger Alcotest Model 7110 MKIII-C ["7110"] relevant to Defendant's breath tests both printed and/or stored in the instruments random access memory and/or downloaded to read only memory. 2. Any breath testing logs maintained by the station or department in connection with the 7110 used to test Defendant's breath. 3. State and manufacturer's assay, analysis, quality assurance, or similar documents and documents on each and every analysis, standard, and control run in the series of runs involving analysis of the following simulator solutions, including chemist's notes, gas chromatograph ("GC"] printouts, GC service records (if any), quality control manual, and testing procedures and custody documents for the simulator solutions: (i) 0.040 simulator solution let used in 7110 Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after Defendant's breath tests (ii) 0.080 simulator solution lot used in 7110 Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after Defendant's breath tests (iii) 0.160 simulator solution lot used in 7110- Linearity Tests with the model CU-34 simulator used in control and calibration checks of the 7110 both before and after Defendant's breath tests (iv) 0.100 simulator solution lot used in breath tests with the model CU-34 simulator used in Defendant's breath tests 4. Records showing that the following simulators and the simulator temperature probes were and are in proper operating condition: a. The simulators used in the Linearity Tests on the 7110 in Defendant's breath tests both before and after those tests b The simulator used in defendant's breath tests 5. Records (i.e., appointment letter from the Attorney General and operator certification replica card, front and back, showing that the Breath Test Coordinator Instructors (who inspected the 7110 and changed 7110 simulator solutions used in defendant's breath tests) was properly certified as such pursuant to the Administrative Code 6. 7110 New Jersey State Police Operator Manuals 7. 7110 Any other Operator Manuals 8. 7110 New Jersey State Police Service Manuals 9. 7110 Manufacturer's Service Manuals 10. 7110 Firmware instructions [to establish, among other things, minimum volume and duration requirements for acceptance of breath samples, prompts which induce an operator to charge or not to charge a subject with a breath test refusal, the degree of accuracy which the 7110 will accept, and the degree of precision within which the 7110 will deem multiple results reliable] for version 3.11 and previous versions 3.8, 3.9, and 3.10 11. Calibrating Unit CU-34 New Jersey State Police Operator Manuals 12. Calibrating Unit CU-34 Manufacturer Operating Manuals 13. Calibrating Unit CU-34 New Jersey State Police Service Manuals 14. Calibrating Unit CU-34 Manufacturers Service Manuals 15. Initial certification course for certifying Alcotest operators 16. One day conversion course for certifying Alcotest operators 17. All interoffice communications, standard operating procedures, operational orders, memoranda, and other documents re the 7110 18. All letters, memoranda, and other correspondence between New Jersey state agencies and the National Draeger re evaluation and modification of the 7110 Please preserve any video and advise if there is a video of the stop or arrest. If so, fax us the cost for the video and who the check is payable to. At a time to be set by the Court, Defendant will move for Orders pursuant to R. 3:10-5, 3:13-1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6-2(d) to preserve all of defendant's rights and defenses: 1. Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5-7 and 7:5-2, because evidence--ie defendant's person, breath, blood, and/or other things--was seized unlawfully, without a warrant and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges. 2. Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. 3. Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35-19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.