Ronald J. Polasky was charged with careless driving and failure to have a driver's license in his possession. Through counsel he served a demand for discovery upon the municipal prosecutor and was then advised by the court clerk that discovery would not be provided. The demand was repeated in a letter to the prosecutor which also advised that defense counsel would appear on the trial date and, if not provided with the requested discovery, would move for a dismissal of the complaints. The charges against the defendant arose from a two-car accident. Defense counsel had reason to believe in the existence of an independent witness to the accident; the name and address of that witness was sought as part of the discovery demand. The defense also wished to examine the police report and the back of the motor vehicle summons containing the arresting officer's comments.
The prosecutor answered the discovery demand by telephone and refused to respond, relying on State v. Roth, 154 N.J. Super. 363
(App.Div.1977). Defense counsel, as promised, moved for dismissal by reason of the refusal. The motion was denied and the present interlocutory appeal followed.
This opinion concludes that the Court below should have dismissed the charges against the defendant or provided other relief.
A. The Rules, the Cases and the Statutes
Prior to 1978, the relevant Rules limited the discovery right to "criminal actions." State v. Roth, 154 N.J. Super. 363 (App.Div.1977), addressing that Rule, held that drunken driving was not a crime and that defendants charged with that offense had no right to discovery. Roth cited with approval, State v. Smithson, 150 N.J. Super. 148 (App.Div.1976), which held that ". . . the court rules as they presently exist, do not permit any type of discovery in cases involving traffic violations. Municipal court discovery is narrowly limited to 'criminal actions' only." [at 150]
Our discovery rules were amended in 1978. R. 7:4-2(g) now reads as follows:
Depositions and discovery in any case in which the defendant may be subject to imprisonment or other consequence of magnitude if convicted shall be as provided by R. 3:13-2 and R. 3:13-3 provided that the municipality in which the case is to be tried has a municipal prosecutor.
R. 3:13-2 permits the taking of certain depositions, R. 3:13-3, the discovery, inspection and copying of various records, statements and reports, including police reports, by both state and defense. The opening paragraph of the latter Rule begins:
Upon written request by the defendant, the prosecuting attorney shall permit defendant to inspect and copy or photograph. . . .
Roth is no longer the law with respect to discovery, at least in drunk driving cases. In State v. Utsch, 184 N.J. Super. 575 (App.Div.1982), the court held that a defendant in a drunk driving case was ...