State of New Jersey v. Scott Robertson

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0296-13T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
November 14, 2014
v.
APPELLATE DIVISION
SCOTT ROBERTSON,
Defendant-Appellant.
___________________________________
Submitted September 9, 2014 – Decided November 14, 2014
Before Judges Messano, Ostrer and Hayden.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Municipal Appeal No. 13-023.
John Menzel, attorney for appellant.
Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney for respondent
(Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Defendant Scott Robertson appeals from his September 2013
conviction, after a trial de novo, of driving while under the
influence of intoxicating liquor (DWI), N.J.S.A. 39:4-50.
Defendant's appeal pertains mainly to the admissibility of
Alcotest results showing he had a blood alcohol level of .13.
Defendant unsuccessfully argued that he was entitled to
discovery of certain data and repair records of the specific
Alcotest device used. He asserted that the State's failure to
provide such discovery compelled exclusion of the Alcotest
results. After the court denied defendant's motion, he agreed
to a trial on stipulated facts.
Defendant renews his arguments before us, and we affirm, in
light of the factual record and applicable principles of law.
Neither State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825,
129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), nor established
principles of discovery, compel exclusion of the Alcotest
results.
We also choose to address an important issue not raised by
the parties pertaining to the stays of defendant's license
suspension pending appeal entered by both the municipal court
and the Law Division. We instruct trial courts that any stay of
a license suspension after conviction should be supported by
adequate findings of fact and conclusions of law, and should
comply with standards governing the grant of a stay pending
appeal.
2
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I.
We discern the following facts from the record, including
testimony presented at an unsuccessful suppression motion
challenging probable cause to arrest.1 Defendant was stopped on
August 11, 2012, shortly before 2:00 a.m., after a Wall Township
Police Officer observed defendant repeatedly encroach upon the
fog line. After approaching defendant's convertible, the
officer detected the strong odor of alcoholic beverage.
Defendant admitted that he drank a small number of beers, but
denied being intoxicated. The officer asked the defendant to
submit to a field sobriety test. According to the officer,
defendant performed poorly. He was unable to follow the
officer's instructions and lost his balance on several
occasions.2
The officer arrested defendant and transported him to
police headquarters. Defendant was administered breath tests on
an Alcotest 7110 MKIII-C device (Alcotest). After producing the
.13 BAC result, he was charged with DWI, N.J.S.A. 39:4-50, as
1
The order denying the suppression motion is not before us on
appeal.
2
The stop was captured on a video-recording which was admitted
into evidence, and viewed by the municipal court and Law
Division. It is not part of the record before us.
3
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well as failure to maintain a lane, N.J.S.A. 39:4-88(b), and
reckless driving, N.J.S.A. 39:4-96.
The municipal court denied defendant's motion for a jury
trial, and his motion to suppress evidence based on an alleged
lack of probable cause to arrest. The court then denied
defendant's motion to exclude the Alcotest results based on the
asserted denial of discovery after a non-testimonial hearing on
May 1, 2013. Defendant supported his motion with an expert's
report.3
A. The Discovery Dispute
Although defendant presented an extensive demand for
discovery, only two categories of requests remain relevant to
this appeal. First, defendant sought more detailed records
associated with the repair of the particular Alcotest device
used in defendant's case, identified by serial number ARXA-0037.
Second, defendant sought "data downloads" of various diagnostic
tests of the device. Defendant argued that hard copies of the
3
The State did not question the author's qualifications as an
expert in the operation of the Alcotest device, nor did the
State object to the court's consideration of the expert report
as evidence on the motion, although it was unaccompanied by a
proper certification. See R. 1:6-6 (stating that where "a
motion is based on facts not appearing of record or not
judicially noticeable," the facts shall be presented by
affidavit or certification made on personal knowledge, and
admissible in evidence).
4
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test results were incomplete. We address these requests in
turn.
With respect to repair records, defendant received, or had
access to, through the State's database, several documents
reflecting that the device was returned to its manufacturer,
Dräger, in November 2008 and September 2011, for service. 4 In
both November 2008 and September 2011, Dräger replaced the fuel
cell and calibrated the device.5 In September 2011, a second
4
Defendant's expert asserted that defendant received or had
access, through the State Police's database — which the expert
called a "data depository" — six documents: (1) a "Draeger
Safety Equipment Return Form" dated November 17, 2008; (2) a
"Dräger Return & Repair Form" dated November 18, 2008; (3) a
packing slip dated November 20, 2008; (4) a "Breath Testing
Instrumentation Service Report" dated September 7, 2011; (5) a
"Dräger Return and Repair Form" dated September 13, 2011; (6) a
packing slip dated September 20, 2011; and (7) a second "Breath
Testing Instrumentation Service Report" dated September 29,
2011. Only documents (2) and (5) are included in the record
before us. We obviously cannot address documents not included
in the record. See R. 2:6-1(a) (stating that the appendix
"shall contain . . . such other parts of the record . . . as are
essential to the proper consideration of the issues."); see also
Johnson v. Schragger, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3
(App. Div. 2001) (noting failure to supply documents "essential
to the proper consideration of the issues hinders our appellate
review.") (internal quotation marks and citation omitted).
Consequently, we cannot determine whether the machine was
serviced once or twice in September 2011.
5
Defendant's expert asserted that the machine was manufactured
in 2006, but was not placed into service until November 2008.
The expert explained that machines that were "shelved," as
apparently was the case here, often needed new fuel cells before
being placed into service.
5
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replacement part, described only as a "Plate," was apparently
installed.
Defendant sought the results of various tests that Dräger
performed after replacing the fuel cell, before returning the
machine. Defendant's expert asserted, "Actual opening of the
instrument and measurement and adjustment of critical internal
operating values can only be done by Dräger at its service
center." He asserted that "the steps of this procedure and the
values obtained and/or which are set by Dräger are recorded on a
checklist completed at the Dräger Service Center . . . ." The
expert distinguished these documents from the calibrations
conducted by the State Police breath test coordinators. He
minimized these as, "simple check[s] to see if the instrument
can read assayed" solutions "within acceptable tolerances and
that these readings fall within a specified parameter, and fit
to a line or are 'linear.'" Defendant presented exemplars of
Dräger's test results, which were also included in the record
before the Special Master in Chun.
Defendant's expert argued that Dräger's internal
measurements and adjustments were essential parts of a "complete
Dräger Repair Record," and were essential to indicate "what, if
any, service was performed in the subject instrument, even if
said service was performed prior to the instrument being placed
6
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into service." He asserted that the documents were needed in
order to obtain a "complete picture of the operability of the
instrument."
As of September 4, 2012, the machine produced 680 Alcohol
Influence Reports (AIR). These were reflected in nine data
downloads in connection with nine complete calibration cycles.
Defendant's expert explained that an Alcotest coordinator
downloads data during recalibration, which must occur at least
semi-annually, under Chun, supra, 194 N.J. at 153.6 There were
gaps in the numbered AIRs. For example, the seventh data
download on September 7, 2011 covered AIR breath tests 397
through 489 between March 31, 2011 and September 6, 2011. The
eighth data download on March 7, 2012 covered AIR breath tests
501 through 554 between October 23, 2011 and March 5, 2012.
Defendant's expert asserted that repair records were needed
to understand the gaps in breath tests. For example, eleven
breath tests were missing between September 7 and October 22,
2011. However, the expert stated that gaps usually "indicate
6
Also, after an Alcotest device performs 500 tests, Alcotest
coordinators typically download all the data on the device to
"avoid the instrument's tendency to slow down as it searches
large numbers of files. After downloading, all information in
the Alcotest 7110 is removed but the sequential file numbers
continue." Findings and Conclusions of Remand Court, Special
Master Report (SMR) 104, February 14, 2007. Downloads are also
performed before the machine is shipped for service. Ibid.
7
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that the instrument has suffered a service issue . . . and in
many cases has been returned to Dräger for service and/or
repair." That may have been the case here, as the gaps cited
coincide with the 2008 and 2011 repairs.
Defendant also sought, in electronic format, the nine data
downloads. However, only three file record types remain at
issue on appeal: the calibration test, the control test, and the
linearity test. These three files are identified by the
following numbers, respectively: 21NJ3-11, 22NJ3-11, and 58NJ3-
11. Defendant argued that the data files "must have existed in
order for the Alcotest instrument to generate the corresponding
Calibration Record and Calibration Record, Part I-Control Tests,
and Part II-Linearity Tests reports." Defendant did not dispute
that he received the "corresponding" records and reports. He
argued that the data files stored in the device included more
information than contained in the paper records, in particular,
"the results of pre- and post-test diagnostics," and "firmware
version number and operational perimeters . . . derived from the
electronic files." He claimed "[s]uch information goes directly
to Alcotest operability." Defendant received data downloads for
the subject breath test and solution change test. He asserted
other tests should have been provided as well.
8
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Defendant's expert stated that "the data downloads provided
[were] insufficient to determine the operability of the
instrument." The expert asserted that Dräger has described the
pre-test and post-test diagnostic checks "as verifying that the
test records are correct and that all diagnostics checks were
performed." Another field of information, included in the
device's data storage but not disclosed in the paper records,
captures any one of several errors identified in the operator's
manual. The data also include time stamps of each event that
occurred within the breath testing sequences, as well as any
aborted tests.
The expert argued that the Supreme Court recognized the
data's importance when it ordered the creation of a centralized
database of downloaded Alcotest results. See Chun, supra, 194
N.J. at 153 (ordering the State to "[c]reate and maintain a
centralized statewide database, comprised of downloaded Alcotest
results, and shall make the data, following appropriate
redactions of personal identification as needed, available to
defendants and counsel"). The expert asserted that the State
had established "a centralized data depository," but not a
centralized database; the data did not permit cross file access;
it was incomplete; and it lacked file integrity.
9
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In support of his argument that the data downloads were
essential, notwithstanding that he received corresponding hard
copy reports, defendant noted that the New Jersey State Police's
Forensic Laboratory Director had compared data files and hard
copies in connection with his presentations in the Chun
hearings. Defendant argued to the municipal court that
defendant was "simply attempting to replicate this simple
safeguard to assure operability of the Alcotest instrument
used. . . ."
The lab director, Thomas A. Brettell, compared hard copy
reports with electronic data downloads of twenty-five devices
used in twenty-five different police departments in Middlesex
County, involving 1865 tests during 2005. According to his
report, which defendant submitted to the court, there were no
discrepancies.7
Our record does not reflect that the State presented any
evidence or expert opinion in opposition to defendant's
assertions regarding the need for the repair-related records, or
the data that was not included in the paper disclosures. The
State also presented no evidence regarding why the data, which
7
Dr. Brettell's comparison is discussed in the Special Master's
report. Findings and Conclusions of Remand Court, SMR 104,
February 14, 2007.
10
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is generated and stored in the device, was not downloaded and
made available to defendant.
However, the State has provided to defense counsel in other
DWI cases a 2009 memorandum from the State Police's Director of
Forensic Sciences "explaining that the data at issue could not
be supplied in downloadable form because it was routinely erased
following each re-calibration." State v. Pechko, No. A-0871-11
(App. Div. May 13, 2013) (slip op. at 2), certif. denied, 218
N.J. 274 (2014); see also State v. Lobo, No. A-4477-11 (App.
Div. August 28, 2013), certif. denied, 217 N.J. 296 (2014).8 The
State contended that as a result of a firmware "bug," the device
would not function properly if the data were retained. Pechko,
supra, slip op. at 2.9
8
We recognize that citation to unpublished opinions is generally
prohibited. See R. 1:36-3. However, we cite Pechko and Lobo
for evidential and not precedential purposes. See Mountain
Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146,
155 n.3 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).
9
We quoted the 2009 memorandum of Howard Baum, Ph.D., the
forensic sciences director, regarding why the three data files
were deleted after calibration certificates were printed:
The reason the files are deleted is to
prevent [the] instrument from not
functioning when it is put in use after
calibration due to a firmware bug. . . .
The firmware bug does not affect the
immediately printed Alcotest 7110
Calibration Certificates and does not affect
the reliability of the Alcotest. However[,]
(continued)
11
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B. Municipal Court Trial and Stay Order
Upon the completion of pre-trial motions, defendant agreed
to be tried on stipulated facts. Pursuant to that agreement,
the court considered the testimony and evidence presented in the
suppression hearing.10 The State stipulated that it could not
prove an observational case. The parties also agreed that
defendant's Alcotest result was .13 BAC; and the State had
(continued)
the electronic calibration files do contain
additional data that is not printed on the
Alcotest 7110 Calibration Certificates.
I have examined the electronic files
generated during calibration and feel the
additional un[]printed data that they
contain is not necessary to be preserved.
Most of the un[]printed data lists the times
of calibration, linearity, solution change,
and retrieval date. Even though the times
are not captured on the printouts, the dates
of these operations are listed[,] which is
sufficient. The only other pieces of data
that are not captured are the software
version (NJ3.11) and tolerance (5% and
0.005)[,] which do not change[,] and the
record type[,] which is not needed. The
reliability of the Alcotest and the review
of Alcotest results is not affected by the
deletion of these files.
[Lobo, supra, slip op. at 12-13.]
10
See State v. Gibson, 219 N.J. 227, 245 (2014) (discussing the
practice of conducting a trial on evidence presented in a pre-
trial suppression hearing).
12
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provided the foundational documents necessary for the admission
of Alcotest results. See Chun, supra, 194 N.J. at 142-45, 154.
The municipal court stated: "Based upon the observational
evidence[,] . . . the administration of the psychophysical
tests[, and] . . . the blood alcohol content reading as shown
. . . I will find the defendant guilty of driving while
intoxicated with a blood alcohol content of .13 percent." The
DWI conviction was defendant's first. The municipal court
sentenced defendant to $714 in aggregate fines and penalties,
ordered he serve twelve hours in the Intoxicated Driver Resource
Center, and revoked his driving privileges for seven months —
the minimum sanctions allowed under the circumstances. See
N.J.S.A. 39:4-50(a)(1)(ii).
Defense counsel requested a stay of the sentence pending
appeal, stating in support only that defendant intended to file
an appeal. The State did not object. The court granted a stay
of the license suspension, but not the fines, provided defendant
file his appeal within twenty days. The municipal court did not
provide any reasons.
C. Trial De Novo and Stay
Upon trial de novo before the Law Division, defendant
renewed his argument that the State's failure to provide
discovery compelled exclusion of the Alcotest results. The
13
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trial court was unpersuaded. The court understood defendant to
argue that the data files were necessary "to determine the
reliability" of the foundational documents required under Chun.
The trial court held that defendant essentially sought to expand
the scope of discovery mandated by Chun. The court noted that
if a "defendant perceives an irregularity in any of the
discoverable foundation[al] documents required by Chun . . .
timely issuance of a subpoena will suffice for purposes of
protecting the defendant's rights."
The court found defendant guilty anew based on the per se
violation, and also found sufficient evidence to support a
conviction based on the observational case.
I looked at the DVR of the balance test and
I would state, as a finder of fact, that I
would have found beyond a reasonable doubt
intoxication . . . just based on what I
viewed . . . on that tape.
I don't understand why the Prosecutor
conceded that down below. And since I'm
allowed to review this on my own, I don't
know that I'm bound by that stipulation
below, but I would have found him guilty of
DWI just based on the MVR, regardless of the
other argument. So, I want that to be into
the record, if this is reviewed.11
11
The Law Division on a trial de novo is free to base a
conviction on an observational case, even if the municipal court
has based the conviction solely on a per se violation. State v.
Kashi, 360 N.J. Super. 538, 545-46 (App. Div. 2003), aff'd, 180
N.J. 45 (2004).
14
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The court re-imposed the sentence of the municipal court,
consistent with his conviction of a per se violation.12
Defense counsel again sought a stay of the license
suspension. This time, the State objected.
[DEFENSE ATTORNEY]: Judge, I would
request that we continue the stay concerning
the driving privilege revocation. There is
a legal question. All of the cases on which
the — which the unreported cases, with the
exception of Carlson, are pending
certification in the Supreme Court. I
expect they're going head out to a collision
course with Chun. And since it is an
unresolved issue, despite Your Honor's legal
finding, I'd ask that the stay on the
license be continued.
[PROSECUTOR]: The State would oppose a
— a stay at this point. Your Honor, the
State does recognize that all the Appellate
Division decisions are unreported, but we
have — the essentially four panels of the
Appellate Division and this Court have
rejected these very same arguments. The
State would submit that the arguments don't
raise a valid Appellate issue and would ask
that the Court not continue the stay at this
point.
Defense counsel represented to the trial judge that the
sentences were stayed in other cases pending certification. The
trial court then ordered a stay pending appeal, provided the
12
The license suspension for a first-time offender's conviction
based only upon an observational case would be three months, as
opposed to seven to twelve months for the per se violation.
N.J.S.A. 39:4-50.
15
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notice of appeal was filed within ten days. The court did not
provide reasons.
Defendant presents the following points on appeal:
I. The State Failed to Provide Discovery
of Complete Alcotest Data and Repair Records
as Required by Our Supreme Court, Thereby
Denying Defendant's Right to Explore Whether
Recognized Alcotest Shortcomings Affected
the Operability of the Instrument Used to
Test His Breath and the Result Obtained
Therefrom.
II. The State's Failure to Provide
Discovery of Complete Alcotest Data and
Repair Records Warrants Either Dismissal,
Exclusion, or Remand.
III. Defendant Requests a Jury Trial Because
He Faces Serious Quasi-Criminal and Civil
Consequences as a Direct Result of the
Municipal Court Proceedings.
II.
A.
We review the action of the Law Division, not the municipal
court. State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div.
2011), certif. denied, 209 N.J. 430 (2012). We assess whether
there was sufficient credible evidence in the record to support
the Law Division's findings. State v. Johnson, 42 N.J. 146, 162
(1964). We do not independently assess the evidence. State v.
Locurto, 157 N.J. 463, 471 (1999). However, we exercise plenary
review of legal conclusions that flow from established facts.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
16
A-0296-13T1
378 (1995). We also deem the issue of whether evidence is
material or subject to disclosure by the State to be a "mixed
question of law and fact." State v. Marshall, 148 N.J. 89, 185
(discussing disclosure obligations under Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)), cert. denied,
522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Consequently, we review de novo whether the Law Division applied
the correct standard, but defer to the court's fact finding
unless clearly erroneous. Ibid.
B.
The Supreme Court in Chun held that the Alcotest, using New
Jersey Firmware version 3.11, was generally scientifically
reliable, subject to certain ordered modifications. 194 N.J. at
65, 150. Additionally, its results were admissible to prove a
per se violation of N.J.S.A. 39:4-50. Ibid. To demonstrate the
device's proper working order, the Court required the State to
introduce into evidence so-called core foundational documents:
(1) the most recent Calibration Report prior
to a defendant's test, including control
tests, linearity tests, and the credentials
of the coordinator who performed the
calibration;
(2) the most recent New Standard Solution
Report prior to a defendant's test; and
(3) the Certificate of Analysis of the 0.10
Simulator Solution used in a defendant's
control tests.
17
A-0296-13T1
[Chun, supra, 194 N.J. at 154.]
In order to enable the defendant to determine whether the
device was in working order, or whether there was a flaw in the
process, the Court ordered the State to disclose certain other
foundational documents. However, the State was not required to
introduce these non-core foundational documents into evidence in
order to establish admissibility. These non-core foundational
documents include:
(1) New Standard Solution Report of the most
recent control test solution change, and the
credentials of the operator who performed
that change;
(2) Certificate of Analysis for the 0.10
percent solution used in that New Solution
Report;
(3) Draeger Safety Certificate of Accuracy
for the Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy
for the Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy
for the Alcotest 7110 Instrument;
(6) Calibration Records, including control
tests, linearity tests, and the credentials
of the coordinator who performed the
calibration;
(7) Certificate of Analysis for the 0.10
percent solution used in the calibration
control test;
(8) Certificate of Analysis for the 0.04,
0.08, and 0.16 percent solutions used in the
calibration linearity test;
18
A-0296-13T1
(9) New Standard Solution Report, following
the most recent calibration;
(10) Draeger Safety Certificates of Accuracy
for the Simulators used in calibration;
(11) Draeger Safety Certificate of Accuracy
for the Alcotest 7110 Temperature Probe used
in calibration; and
(12) Draeger Safety Ertco-Hart Calibration
Report . . . .13
[Id. at 153.]
Although the Court required disclosure of the twelve
categories of non-core foundational documents, it held "they are
not fundamentally a part of demonstrating that the particular
device was in good working order." Id. at 144-45. In some
respects, these non-core foundational documents "are tests of
tests and, therefore, are too attenuated to require that they be
admitted as part of the evidence." Id. at 144. The Court held
that a defendant may conduct further discovery if these
documents raise questions about the device's working order.
"[I]n the event that any defendant perceives of an irregularity
in any of these documents that might affect the proper operation
of the device in question, timely issuance of a subpoena will
13
We subsequently held that a temperature probe manufactured by
Control Company was acceptable. State v. Holland, 423 N.J.
Super. 309, 319 (App. Div. 2011).
19
A-0296-13T1
suffice for purposes of protecting that defendant's rights."
Id. at 144 n. 47.
We held in State v. Maricic, 417 N.J. Super. 280, 288 (App.
Div. 2010), that the list of twelve documents that the State
must routinely disclose under Chun should not be viewed to limit
or preclude other discovery. Instead, requests for additional
discovery must be viewed in light of general principles
governing discovery in municipal court, and the Chun Court's
observations regarding the relevance of certain documents.
Discovery in the municipal court is governed by Rule 7:7-7.
That rule entitles a defendant to secure upon request "all
relevant material." The rule sets forth a list of items
substantially similar to those identified in Rule 3:13-3(b),
governing criminal cases in the Law Division. However, "[o]ur
courts have applied a narrower concept of 'relevant' discovery
in DWI cases, which are quasi-criminal in nature, than in full-
fledged criminal cases." State v. Carrero, 428 N.J. Super. 495,
507 (App. Div. 2012). A DWI defendant's "right to discovery
. . . is limited to items as to which 'there is a reasonable
basis to believe will assist a defendant's defense.'" Ibid.
(quoting State v. Ford, 240 N.J. Super. 44, 48 (App. Div.
1990)).
20
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A defendant is not entitled to information that "merely
could lead to other information that is relevant." Ibid.
(citing Maricic, supra, 417 N.J. Super. at 284, and Ford, supra,
240 N.J. Super. at 48). Discovery "must be relevant in and of
itself." Carrero, supra, 428 N.J. Super. at 508. "However, at
least with respect to certain classes of information," including
repair records, "a DWI defendant need not have actual knowledge
of the facts supporting the contentions that underlie his
discovery requests." Ibid.
Although there is no general constitutional right to
discovery even in criminal cases, Weatherford v. Bursey, 429
U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977) (there is
no general constitutional right to discovery in a criminal
case); State v. Marshall, supra, 148 N.J. at 269, the State is
obliged under due process principles to disclose exculpatory
evidence. See Brady, supra, 373 U.S. at 87. Suppression of
such evidence violates due process. State v. Martini, 160 N.J.
248, 268 (1999). Brady has been applied to the trial of quasi-
criminal motor vehicle offenses. Carrero, supra, 428 N.J.
Super. at 507-08.
"In order to establish a Brady violation, the defendant
must show that: (1) the prosecution suppressed evidence; (2) the
evidence is favorable to the defense; and (3) the evidence is
21
A-0296-13T1
material." Martini, supra, 160 N.J. at 268. Evidence is
material "if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." State v. Knight, 145
N.J. 233, 246 (1996) (internal quotation marks and citation
omitted).
Exculpatory evidence is treated differently from merely
potentially useful evidence. Suppression of requested
exculpatory evidence violates due process, regardless of the
prosecution's good faith. Id. at 245; George v. City of Newark,
384 N.J. Super. 232, 243 (App. Div. 2006). However, "[w]ithout
bad faith on the part of the State, 'failure to preserve
potentially useful evidence does not constitute a denial of due
process of law.'" Ibid. (quoting Arizona v. Youngblood, 488
U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988));
see also State v. Mustaro, 411 N.J. Super. 91, 102-103 (App.
Div. 2009). Where evidence has been destroyed, the court must
focus on "(1) whether there was bad faith or connivance on the
part of the government, (2) whether the evidence . . . was
sufficiently material to the defense, [and] (3) whether [the]
defendant was prejudiced by the loss or destruction of the
evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App.
Div.), certif. denied, 101 N.J. 335 (1985).
22
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Consistent with these principles, we have held that some
repair records of a breath test device are discoverable. We
stated in Ford, supra, 240 N.J. Super. at 51, that "information
concerning . . . [a] particular [Breathylzer's] state of repair"
was relevant and discoverable. But, the "routine production of
[a device's] entire repair record . . . without appropriate time
limitations would be unreasonable." Id. at 51-52. We also held
in Maricic that the trial court erred in denying, in its
entirety, a defendant's request for repair records of an
Alcotest device, noting that the Chun Court observed that repair
records were "'potentially relevant.'" 417 N.J. Super. at 285
(quoting Chun, supra, 194 N.J. at 145 n.48). Cf. State v.
Green, 417 N.J. Super. 190, 202-03 (App. Div. 2010) (stating
that repair record of speed radar device was discoverable).
The trial court in Maricic also erred in denying a request
for downloaded data. 417 N.J. Super. at 286. We noted that the
Chun Court ordered the State to create a database of downloaded
Alcotest results. Ibid. (citing Chun, supra, 194 N.J. at 153).
We concluded that implicit in the court's order was that the
downloaded data available through the database was relevant.
Id. at 287.
In this case, defendant seeks repair records and downloaded
data that are not in the State's possession. The data defendant
23
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seeks was erased. The requested repair records are the results
of Dräger's tests, performed when it serviced the Alcotest.
Dräger either possesses them, or destroyed them.
The State is not obliged to produce testing-related
documents unless they "are within the possession, custody or
control of the prosecutor." R. 3:13-3(b)(1)(C); R. 7:7-7(b)(4).
For example, evidence in the control of a crime victim —
notwithstanding the victim's close cooperation with the
prosecution — is not within the prosecutor's "possession,
custody or control." State ex rel. A.B., ___ N.J. ___ (2014)
(slip op. at 24) (citing R. 3:13-3(b)(1)(E)). There is no
evidence in the record to indicate that the State controls the
repair-related data generated by Dräger. Consequently, it was
defendant's obligation to subpoena those records from Dräger.14
See Chun, supra, 194 N.J. at 144 n.47 (stating that "timely
issuance of a subpoena will suffice for purposes of protecting
. . . [a] defendant's rights" where irregularity in a produced
document is perceived); see also State v. Holland, 422 N.J.
Super. 185, 199 n.7 (App. Div. 2011).
By the same token, we find no Brady violation in connection
with defendant's request for Dräger's repair-related test
14
We do not address what relief defendant could obtain if Dräger
still possessed the test data, but failed to comply.
24
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results. A prosecutor's obligation under Brady extends to
documents of which it is actually or constructively aware,
including documents held by other law enforcement personnel who
are part of the prosecution team. Kyles v. Whitley, 514 U.S.
419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995);
State v. Nelson, 155 N.J. 487, 499-500 (1998), cert. denied, 525
U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). However,
the Brady disclosure obligation does not extend to documents
held by a private contractor; nor is the State required to ask a
private contractor to produce data for a defendant's potential
use. See, e.g., United States v. Gray, 648 F.3d 562, 566-67
(7th Cir. 2011) (holding, in Medicaid fraud case, that Brady did
not extend to State's outside Medicaid billing contractor),
cert. denied, ___ U.S. ___, 132 S. Ct. 1056, 181 L. Ed. 2d 775
(2012).
In any event, we are unconvinced that the diagnostic tests
are material. The record evidence indicates that the device was
sent to Dräger in 2008 and 2011 for replacement of the fuel
cell. In connection with the 2008 repair, defendant's expert
explained that the fuel cells often needed replacement when a
device had been "shelved" after delivery to its intended user.
After the device was returned with the replaced fuel cell, the
State performed various tests designed to ascertain it was in
25
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working order. Although the expert minimized the significance
of these tests, he provides no persuasive basis to conclude that
Dräger's test results could have demonstrated a failure of the
device to operate properly, notwithstanding the subsequent
testing by the State that indicated that it was operating
properly.
Turning to the downloaded data, we recognize that some of
this information was only in the State's possession in
electronic format. But it was deleted in good faith.
Therefore, we find no discovery or Brady violation.
Rule 7:7-7 applies to documents in the State's possession.
The destruction of discoverable evidence post-indictment
generally violates Rule 3:13-3. State v. Dabas, 215 N.J. 114,
138 (2013). Similarly, the State is generally not free to
destroy discoverable evidence post-complaint under Rule 7:7-7.
The ninth data download of the device used by defendant occurred
in September 2012, after defendant's breath test.
Nonetheless, we are unpersuaded by defendant's expert
opinion that the deleted information is relevant under Rule 7:7-
7. Although the expert opines that complete data is essential,
defendant fails to demonstrate how the few items of data, not
available in the paper disclosures, would demonstrate the device
was not reliable, when all other evidence pointed to the
26
A-0296-13T1
contrary conclusion. We note that Dr. Brettell's own comparison
of data stored in devices, and paper records, discovered no
discrepancies.
Our decision in Maricic, supra, does not compel a different
result. First, Maricic did not analyze the specific elements of
data at issue in this case. Second, Maricic relied on its
understanding that the requested downloaded data were to be
included in the statewide database ordered in Chun. See
Maricic, supra, 417 N.J. Super. at 286-87 (citing Chun, supra,
194 N.J. at 90, 153).
However, the Court has since held that the existing State
database — despite the data erasures — satisfies the Court's
order. State v. Chun, 215 N.J. 489, 491-92 (2013) (Chun II).
In Chun II, movants sought an order in aid of litigant's rights
declaring the database inadequate. Id. at 489. Movants
claimed, among other things, that the database did not include
the calibration, control and linearity files that, as we discuss
above, have been routinely erased since 2006.
In response, the State presented the Court with an
affidavit of Dr. Baum, the current director of the State
Police's Office of Forensic Sciences, whose 2009 memorandum we
quoted above. Dr. Baum stated that in 2009, he reviewed Dr.
Brettell's 2006 decision to erase the three electronic
27
A-0296-13T1
calibration data files identified as 21NJ3-11, 22NJ3-11 and
58NJ3-11. Affidavit of Howard J. Baum, Ph.D., May 23, 2013.
Dr. Baum confirmed that the routinely erased data contained
certain records not present in the printed records. But, he
concluded, as did Dr. Brettell before him, that the erased
records were irrelevant:
[N]one of these data records affect the
accuracy of the results, they are not the
results of the calibration, and they have
nothing to do with the actual results of the
operation and calibration of the
instrument. . . . [N]one of the data that
[are] cleared but not printed shows that
there is a problem with the
instrument. . . . [A]ll pertinent data
demonstrating the proper working order of
the instrument [are], in fact, printed on
the hard copy documents. Therefore, . . .
clearing the files does not [a]ffect the
scientific reliability of the Alcotest, and
. . . the data that [are] cleared and not
printed [are] irrelevant and unnecessary to
determine whether the instrument is
15
operating properly.
The Court implicitly agreed, and denied movants' request to
find the database deficient. Chun II, supra, 215 N.J. at 492.
In its order, the Court acknowledged defendants' claim that the
database was noncompliant with Chun I because it was, among
other things, "incomplete as to certain types of files and
calibration cycles." Chun II, supra, 215 N.J. at 489. Noting
15
Pursuant to N.J.R.E. 201(b)(4), we take judicial notice that
Dr. Baum presented this opinion to the Court.
28
A-0296-13T1
the State's response in part through Dr. Baum's affidavit, the
Court then "concluded that the centralized statewide database is
fully in compliance with this Court's Order of March 17, 2008,
in all respects." Id. at 491. Although the Court's order in
Chun II was unaccompanied by a written opinion, it is binding
precedent, as it represents the Court's considered disposition
of issues presented after plenary review. See In re Osborne, 76
F.3d 306, 309 (9th Cir. 1996) (stating "the doctrine of stare
decisis concerns the holdings of previous cases, not the
rationales" and "judicial precedent attaches a specific legal
consequence to a detailed set of facts in an adjudged case or
judicial decision") (internal quotation marks and citation
omitted).
Applying the principles set forth above, we also find no
violation of Brady. The deleted data were routinely erased
because of a firmware bug. There is no allegation, let alone
record evidence, that the erasures were accomplished in bad
faith. See Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct.
1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004) (stating that
defendant bears burden to prove bad faith). Consequently,
defendant must demonstrate more than that the information was
"potentially useful." See George, supra, 384 N.J. at 243
29
A-0296-13T1
(internal quotation marks and citation omitted). Defendant must
demonstrate that the deleted data was exculpatory.
However, for the same reasons that the missing data is not
"relevant" under Rule 7:7-7, it falls short of being exculpatory
or material. Defendant has not demonstrated that there was a
"reasonable probability" that had the missing data been
produced, "the result of the proceeding would have been
different." Knight, supra, 145 N.J. at 246 (internal quotation
marks and citation omitted). Although he obviously could not
analyze data he did not receive in any form, defendant failed to
demonstrate how the type of information sought could, in a
hypothetical case, demonstrate that a device was unreliable,
despite all the disclosed evidence to the contrary.
III.
Defendant argues that he was entitled to a jury trial,
notwithstanding our Court's determination in State v. Hamm, 121
N.J. 109, 129-30 (1990), cert. denied, 499 U.S. 947, 111 S. Ct.
1413, 113 L. Ed. 2d 466 (1991), that there is no jury trial
right for DWI prosecutions. Defendant argues that changes in
the DWI statutes since Hamm was decided compel a different
result. We are unconvinced.
Defendant argues that he is subject to incarceration for as
much as seventy-seven days — thirty days for his first DWI
30
A-0296-13T1
offense, N.J.S.A. 39:4-50 (a)(1)(ii); sixty days on the reckless
driving charge, N.J.S.A. 39:4-96; and fifteen days on the
failure to maintain a lane charge, N.J.S.A. 39:4-88(b); plus up
to forty-eight hours in the IDRC. He also asserts when
insurance surcharges are added, the potential monetary
consequence of conviction could exceed $6000.
Even assuming for argument's sake the theoretical
possibility of such a consecutive sentence, that does not compel
a jury right; rather, the denial of a jury trial compels a
limitation of the sentence. Where a DWI defendant is exposed to
an aggregate sentence of more than six months as a result of
related charges, "and the defendant is not offered a jury trial,
the sentences may not total more than six months." State v.
Federico, 414 N.J. Super. 321, 330 (App. Div. 2010) (internal
quotation marks and citation omitted); see also Blanton v. N.
Las Vegas, 489 U.S. 538, 543, 109 S. Ct. 1289, 1293-94, 103 L.
Ed. 2d 550, 556-57 (1989) (stating that DWI offender exposed to
sentence of six months or less is not entitled to a jury trial).
Also, the potential monetary consequences are not so onerous as
to compel a right to a jury. See Id. at 544-45 (noting that the
possible $1000 fine was well below the $5000 level set by
Congress for a "petty offense," and did not compel jury trial).
31
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IV.
Although we affirm defendant's conviction, we express our
concern that both the municipal court and the Law Division
stayed defendant's license suspension pending appeal in this
matter without providing any statement of reasons. We do not
question the authority of either the municipal court, or the Law
Division, to stay the imposition of all or part of a sentence.
See R. 7:13-2 ("Notwithstanding R. 3:23-5, a sentence or a
portion of a sentence may be stayed by the court in which the
conviction was had or to which the appeal is taken on such terms
as the court deems appropriate."); R. 3:23-5 (stating that
pending appeal after the trial de novo, the court may stay a
fine, costs, a forfeiture, or probation, and a defendant shall
be admitted to bail in accordance with standards set forth in
Rule 3:26-1(a)).
Nonetheless, an application for a stay pending appeal is
governed by the three-part standard in Crowe v. De Gioia, 90
N.J. 126 (1982). Garden State Equality v. Dow, 216 N.J. 314,
320 (2013).
A party seeking a stay must demonstrate that
(1) relief is needed to prevent irreparable
harm; (2) the applicant's claim rests on
settled law and has a reasonable probability
of succeeding on the merits; and (3)
balancing the "relative hardships to the
parties reveals that greater harm would
32
A-0296-13T1
occur if a stay is not granted than if it
were."
[Ibid. (quoting McNeil v. Legis.
Apportionment Comm'n, 176 N.J. 484, 486
(2003) (LaVecchia, J., dissenting)).]
In cases of public importance, the public interest must also be
weighed. Id. at 321.
A court should not stay the suspension of driving
privileges of a person convicted of DWI or refusal without
considering the factors governing the issuance of a stay. With
respect to the second Crowe factor, the Court should consider
whether the appeal involves a substantial question, and whether
there is a reasonable prospect that defendant may prevail and
avoid license suspension. In this case, for example, defendant
sought a stay based on an argument that had been rejected
multiple times by our court, albeit in unpublished decisions.
Moreover, both the municipal court and Law Division judges were
satisfied that defendant had violated N.J.S.A. 39:4-50 based on
the observational case. The State's stipulation that the
observational case was insufficient did not bind the court.
State v. Wesner, 372 N.J. Super. 489, 495 (App. Div. 2004),
certif. denied, 183 N.J. 214 (2005). Consequently, a conviction
with at least a three-month suspension was mandated, see
N.J.S.A. 39:4-50(a)(1)(i), regardless of the outcome of the
appeal.
33
A-0296-13T1
Our drunk driving laws are designed to combat the
"senseless havoc and destruction caused by intoxicated drivers."
State v. O'Driscoll, 215 N.J. 461, 472 (2013) (internal
quotation marks and citation omitted). Our Supreme Court has
adopted directives to ensure the swift prosecution of those
charged, and the swift punishment of those convicted, to further
the public goals of traffic safety. See State v. Cahill, 213
N.J. 253, 269-70 (2013) (discussing time-goals for prosecution
of DWI cases).
Although defendant is a first-offender, the court should be
mindful of the possibility that a defendant may re-offend during
a stay, and of the consequent risk to the public. See State v.
Henry, 418 N.J. Super. 481, 494-95 (Law Div. 2010) (noting a
National Highway Traffic Safety Administration study's finding
that "'each prior DWI conviction increases an offender's
recidivism rate by 10 percent per year'"). The record does not
include defendant's driver's abstract, to reflect whether he had
a history of violating the motor vehicle laws; nor does the
record indicate whether he had a record of substance or alcohol
abuse that may have heightened the risk of him re-offending
during the stay. There is no certification from defendant
setting forth the alleged harms he would suffer without a stay.
34
A-0296-13T1
There is no indication that the trial court sought or considered
such evidence before granting the stay.
We appreciate that the loss of a driver's license is a
substantial sanction. Although a DWI defendant sentenced to a
term of incarceration by the Law Division is eligible for bail,
Rule 3:23-5, the stay of the license suspension should not be
automatic. Moreover, as reflected in Rule 7:13-2, a court that
determines to impose a stay may do so upon appropriate
conditions.
For example, if a convicted defendant demonstrates that the
loss of driving privileges pending appeal would unavoidably and
significantly interfere with his or her ability to maintain
employment, and a stay is otherwise warranted under the Crowe
factors, then the court may consider conditioning the stay by
limiting the defendant's driving to that required by employment.
The court may also condition a stay upon the verified
installation of an ignition interlock device, which would
provide some assurance that the defendant would not reoffend
pending appeal. We leave it to the discretion of the trial
courts imposing stays to develop other appropriate terms or
conditions, reasonable under the circumstances, supported by
competent evidence, and based on expressed findings of fact and
conclusions of law.
35
A-0296-13T1
Affirmed. The stay of the license suspension is vacated.
36
A-0296-13T1