1.No automatic right for DWI defendant to inspect inside of police stationState v Carrero 428 NJ Super. 419 (App. Div. 2012)State v BaluskiA-3232-11T3/ A-4319-11T3 (CONSOLIDATED)
The court reviewed discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered.
In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the requiredtwentyminutes before testing.
The court reversed the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection.
The court concluded that Carreros request is insufficient in light of the Supreme Courts binding legal and evidentiary determination inState v. Chun, 194 N.J. 54, 89 (2008), that the Alcotest is designed in a manner that is well shielded from the impact of any potential RFI, and also in light of the States countervailing security interests disfavoring routine civilian access to the interior of a police station.
The court concluded that Baluskis request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the twenty pre-testing minutes required byChun, supra, 194 N.J. at 79, and also in light of the States countervailing security interests. Note- In the future, defense counsel can make a Evid. Rule 104 motion to inspect with affirmative certifications.
2. Mandatory 180 jail if driving while suspended while revoked for 2ndDWI even if DWI was prior to 2010.State v Carrigan428NJ Super. 609 (App. Div. 2012) A-3751-11T1 11-15-12
N.J.S.A. 2C:40-26(b), which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her drivers license is suspended or revoked for a second or subsequent conviction for driving while intoxicated (DWI) or refusal to submit to an alcohol breath test. Defendant was charged with that crime, upon being found driving a car in September 2011 while his license was suspended due to multiple prior DWI offenses.
The trial court initially dismissed the complaint, concluding that the application of N.J.S.A. 2C:40-26(b) to defendant violated ex post facto principles, essentially because his ongoing license suspensions had been imposed before the statutes effective date.
The Appellate Division reversed and concluded that a violation of N.J.S.A. 2C:40- 26(b) comprises a new offense based upon new conduct, and that the statute does not impose retrospective punishment for a prior offense. Hence, the law may be constitutionally applied to drivers with suspended licenses, such as defendant, who are caught driving after August 1, 2011, regardless of whether their DWI-based suspensions were imposed before that date.
