Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Monday, May 16, 2011

Discovery and Obtaining Police Reports in Criminal Cases - New articles, ABA newsletters and Community Events

Discovery and Obtaining Police Reports in Criminal Cases

Under the New Jersey Court Rules, a New Jersey Attorney can obtain discovery and police reports from the Prosecutor.

We can appear in court for you on most Central New Jersey criminal and traffic violations.

The law entitles criminal and drunk driving defendants to pretrial 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 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.

Discovery in the Municipal Court Court Rule 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 discovery available to the defendant. If the matter is, however, not being prosecuted by the municipal prosecutor, the municipal prosecutor shall transmit defendant's discovery requests to the prosecutor, or, if there is no prosecutor, the municipal prosecutor shall transmit defendant's 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 defendant's 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 expert's 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 was 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 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 expert's 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 party's work product, consisting of internal reports, memoranda or documents made by that party or by that party's 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 defendant's 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 of confidential 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 court's 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 defendant's 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 attorney's compliance with the defendant's 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 party's 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.

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,

DISCOVERY IN INDICTABLE CRIMINAL CASES [FELONY LEVEL IN NEW YORK] Court Rule 3:13-3. Discovery and Inspection

(a) Pre-indictment Discovery. Where the prosecutor has made a pre-indictment plea offer, the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c). (b) Post Indictment Discovery. A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor, and the defendant need not provide discovery to the State pursuant to sections (d) or (g), except as required by Rule 3:12-1 or otherwise required by law. Defense counsel will forward a copy of discovery materials to the prosecuting attorney no later than 7 days before the arraignment/status conference. (c) Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (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) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor; (4) reports or records of prior convictions of the defendant; (5) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor; (6) names and addresses of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses; (7) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons; (8) police reports which are within the possession, custody, or control of the prosecutor; (9) names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, 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. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial. (d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b): (1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of defense counsel; (2) any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within the possession, custody or control of 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 State may call as a witness at trial; (5) names and address of each person whom the defense expects to call to trial as an expert witness, the expert's 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. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from testifying at trial. (e) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter nor does it require discovery by the State of records or statements, signed or unsigned, of defendant made to defendant's attorney or agents. (f) Protective Orders. (1) Grounds. Upon motion and for good cause shown the court may at any time order that the discovery or inspection 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 of confidential relationships and privileges recognized by law; any other relevant considerations. (2) Procedure. 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, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal. (g) Continuing Duty to Disclose; Failure to Comply. If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence thereof. 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, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

The Court Should Dismiss Complaints Against Defendant When the State is Not Ready to Proceed or Discovery Not Provided.

Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474]

As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)".

R. 1:2-4(a) provides for payment of costs to an adverse party as a condition of adjournment even where the State is the offending party in a criminal action. State v. Audette, 201 N.J. Super. 410, 493 A. 2d 540 (App. Div. 1985). In Prickett, supra the Appellate Division agreed with the Law Division judge that the case should be remanded to the municipal court for determination and imposition of appropriate costs and for trial within 45 days of the date of this opinion. A party has failed to comply with this Rule [a discovery request] or with an order issued pursuant to this Rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. State v Prickett 240 NJ Super 139, 145 App. Div (1990) We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. If the state is not prepared, the charges should be dismissed or state sanctioned. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992) Furthermore, "delay occasioned by the courts must be charged against the State, not the defendant." State v Perkins, 219 NJ Super. 121, 127 (Law Div 1987). "The court is one part of our tripartite system of government. Its failures cannot be permitted to injure a defendant who had nothing to do with them and no control over them." Id. at 127. When a Prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. United States v Agurs 427 US 97, 106, 98 S. Ct. 2392, 2399, 49 L Ed 2d 342 (1976)

CHARGES SHOULD BE DISMISSED IF SPEEDY TRIAL VIOLATED

In a DWI case, State v. Farrell NJ Super (App. Div 1999) a DWI conviction was reversed and case dismissed based on speedy trial violation. The court held: "Excessive delay in completing a prosecution can potentially violate a defendant's constitutional right to a speedy trial as a matter of fundamental fairness, apart from whether double jeopardy standards have been contravened. Id. at 354-55. In cases arising from municipal court DWI prosecutions, just as with criminal prosecutions, consideration whether the right to a speedy trial has been violated is guided by the four factors announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101, 117-18 (1972). Gallegan, supra, [117 NJ 345, 1989] 117 N.J. at 355; State v. Prickett, 240 N.J. Super. 139, 143 (App. Div. 1990)." Farrell, supra. Specifically, the court must engage in a multi-element balancing process of the four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his right to speedy trial, and any prejudice to the defendant occasioned by the delay. Gallegan, supra, 117 N.J. at 355; State v. Marcus, 294 N.J. Super. 267, 293 (App. Div. 1996), certif. denied, 157 N.J. 543 (1997). State v Farrell NJ supra. Delay caused or requested by the defendant is not considered to weigh in favor of finding a speedy trial violation. Gallegan, supra , 117 N.J. at 355; Marcus, supra, 294 N.J. Super. at 293. Further, because the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. See State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976). In a related vein, the defendant's demonstration of prejudice is not strictly limited to a "lessened ability to defend on the merits." Ibid. Rather, prejudice can be found from a variety of factors including "employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like." Ibid. (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed.2d 183 (1973)), cited by State v Farrell, supra. The New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days. See State v. Fox, 249 N.J. Super. 521, 523 & n.1 (Law Div. 1991); State v. Perkins, 219 N.J. Super. 121, 124 (Law Div. 1987). In Perkins, supra, defendant was charged with DWI on October 10, 1986, following a car accident in which only he was injured. 219 N.J. Super. at 122. Defendant first appeared in municipal court on December 4, 1986, but the State was not prepared to proceed and sought a continuance. Id. at 123. The trial was reset for January 8, 1987, and the municipal court judge stated that defendant would be entitled to a dismissal if the State was not ready to prosecute. Ibid. Nevertheless, even though the State was not prepared on January 8 due to a change of prosecutor and subpoena problems, the municipal court denied defendant's motion to dismiss. Perkins at 123-24. On appeal, in Perkins the Law Division dismissed the complaint against defendant. Id. at 124. After first noting the Supreme Court's sixty-day directive, the judge stressed that the municipal court had promised that the case would be tried or dismissed on that date. Id. at 124-25. He stated that "[a] court's promise is sacrosanct" and must be honored. Id. at 125. Accordingly, the municipal court's denial of defendant's motion to dismiss was evaluated as "an arbitrary, and therefore improper" exercise of discretion. Ibid. The municipal court's promises aside, the Law Division judge added, a substitution of prosecutor and failure to subpoena witnesses and otherwise prepare the State's case could not justify the second adjournment. Ibid. As a general rule in applying the evaluative features of the four part test of Barker in fundamental fairness terms, delays of scheduling and other failures of the process for which the trial court itself was responsible are attributable to the State and not to the defendant. 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 Moreover, prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the

merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. Moore v. Arizona, supra. [Smith, supra, 131 N.J. Super. at 368 n. 2.] "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover ...society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest." State v Perkins, supra at 127, quoting Barker v Wingo, supra, 497 U.S. at 527. Finally, The state's charges for discovery cannot violate State v Green 327 NJ Super 334 (App. Div 2000)

What the State Must Automatically Provide in DWI

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.

The 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 coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, > the time of administration of the tests, > the result. > reports and relevant documents signed by defendant, > reports concerning defendant's sobriety, including blood and urine tests. Other discovery sometimes requested for DWI.

The defense request, 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), rev'd 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, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's 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 BTIIC's "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 defendant's 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 defendant's 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 defendant's 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 breathalyzer's 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 complainant's 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 defendant's 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.
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