Defendant, Joseph Paris, Jr. appeals from a refusal of the Bordentown Township Municipal Court in Burlington County to dismiss a complaint charging him with drunk and careless driving. This court, addressing the appeal, concludes that the motion was denied for improper reasons, requiring a remand.
Defendant was issued a summons on October 19, 1985. It required his appearance in the municipal court on November 20. On October 21, he retained counsel. Counsel called the clerk of the court on October 28 (when he learned the matter had been rescheduled for November 6) and obtained a continuance so she could obtain discovery material from the State. A discovery request was sent to the State on the same day. On November 4, counsel received notice from the court scheduling the trial for November 20. He received the State's DWI report on November 12 with a request for notification of any defense expert witnesses to be called at the trial. On that date, defendant obtained an expert, transmitted the State's discovery material to him and requested a report. On the same date, he requested the clerk of the court to arrange a continuance until December 18, 60 days from the date of the issuance of the summons. He confirmed the request by letter to the municipal
court prosecutor, also advising him of the name of the expert witness. On November 18, he received notice scheduling the hearing for the requested date of December 18, 1985; a copy of that notice was sent to the state trooper who issued the summons. On November 19, 1985, he was advised by the State that it intended to produce an expert witness. On November 20, he demanded a copy of the State's expert's report from the prosecutor. Defense counsel received his expert's report on November 22, 1985. On December 2, 1985, defense counsel requested a further postponement from December 18, 1985 because his expert witness had hearings scheduled in another municipal court on that date.
On December 4, 1985, defense counsel received a letter from the Division of State Police advising:
On that same date, State was provided with the report of defendant's expert and the matter was conferenced by the municipal court judge. He advised counsel that he could not grant a request for a continuance beyond December 18, referring to certain unidentified "directives" as a reason for his refusal. He therefore scheduled defendant's trial for 8:00 a.m. on December 18, making the date and time peremptory. This arrangement permitted the defense expert's early appearance in the Bordentown Municipal Court while accommodating his engagement to testify in another court on the same day. The State, despite defendant's request, has never delivered any discovery material to him except its DWI report.
Defendant appeared on December 18, 1985 at 8:00 a.m. with his expert witness. The case was called three times between
8:00 a.m. and 8:47 a.m. and no State witnesses appeared. Defendant moved to dismiss for lack of prosecution. The prosecutor advised the court that the complaining witness, Trooper Alexander, confusing his dates, thought the matter was scheduled for December 20, 1985 but that he and the State's expert could be available later in the day. He then requested a continuance to another date. Defendant objected to the continuance. He agreed to try the matter later in the day and, alternatively, to stipulate to the admission of the Trooper's report on the basis of which the defense expert could provide an opinion. The motion to dismiss was denied, the alternative offers rejected and the matter continued to January 15, 1986. The Court, in denying the motion, relied in part upon certain unidentified "guidelines."
The prosecutor in arguing the appeal, identified these as two directives issued by the Administrative Office of the Courts ("AOC") and claimed that they provide authority for the denial of the motion to dismiss.
An administrative rule adopted by the Burlington County Assignment Judge requiring drunk driving cases to be tried within 60 days was discussed and enforced in State v. Potts, 185 N.J. Super. 607 (Law Div.1982). The rule, however, did not long survive. In State v. Detrick, 192 N.J. Super. 424 (App.Div.1983), the court held that speedy trial rules, not administrative rules, governed dismissals for lack of prosecution. Later, the New Jersey Supreme Court adopted its own 60-day directive for drunk driving cases. Directive # 1-84, contained in a memorandum from Chief Justice Robert N. Wilentz (dated July 26, 1984), is still in force and has the same effect as the assignment judge's directive. ...