On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
King, Shebell and Baime. The opinion of the court was delivered by Shebell, J.A.D.
The State of New Jersey was granted leave by this court to appeal an order of the Law Division. The Law Division affirmed a portion of an order of the Bordentown Township Municipal Court which directed the State to produce three breathalyzer ampules each bearing the same lot number as those used in testing the breath of defendant Michael Ray Young. We also granted leave to review that aspect of the order which required the New Jersey Division of State Police, within 60 days, to
adopt appropriate regulations for implementing the production of breathalyzer ampules bearing the same lot or batch number as those used to test the breath of a particular defendant, to defendants in discovery, consistently with the discovery Order of the Court below appealed from and affirmed by this Court, which regulations shall include provisions regarding the number of ampules to be produced in response to a defense discovery request, the method of their selection, the cost to be imposed on the requesting defendant and any other matters the New Jersey Division of State Police may deem appropriate such as safety considerations in the handling of breathalyzer ampules and special situations if a batch of ampules bearing a particular lot or batch number requested were to have been exhausted or accidentally destroyed by the State[.]
In its brief on appeal, "[t]he defense consents to this Court's vacating that portion of the Subject Order that follows affirmance of the Discovery Order, if this Court is so disposed." We will discuss this issue later in our opinion.
The State's response to defendant's discovery request advised that two breathalyzer tests of defendant's breath were conducted on August 4, 1989, using ampules bearing Control No. 90301. However, the State notes that it routinely discards the ampules actually used in conducting breathalyzer tests immediately after the test is administered. Two ampules are used in the breathalyzer machine when a test is given. One is the control ampule, and the second is the ampule into which the breath sample is introduced to produce an interaction of any
alcohol in the breath sample with the chemicals in the ampule. The solution is then tested by the analyzing mechanisms of the breathalyzer, and a reading is produced.
Discovery further indicated that each of the two breathalyzers tests, taken thirteen minutes apart, produced the same reading of .13% blood alcohol content. According to the report completed by the investigating police officer concerning his observations of the defendant, the defendant's balance, speech and appearance were consistent with intoxication, and there was a very strong odor of alcoholic beverage on defendant's breath. The officer's report indicates that defendant asserted he consumed four beers at a friend's house in a period of approximately one hour and forty-five minutes and had nothing to eat that day prior to his alcohol consumption.
Defense counsel's only representation for obtaining the discovery order requiring turnover of three ampules of the same batch used in the test given to defendant was that he intended to have independent testing done of the contents of the ampules. He readily admitted during argument on appeal in this court that it was his own idea to ask for three ampules and that he had no scientific basis or request from his expert for production of that number of ampules. Defense counsel further admitted that nothing he has obtained thus far, including the breathalyzer readings and the reports concerning the observations of the defendant, provides any basis for suspicion that the ampules used in the breathalyzer tests were less than satisfactory. It is against this background that we review the exercise of discretion by the trial court in granting defendant's discovery request.
This court noted in State v. Ford, 240 N.J. Super. 44, 48, 572 A.2d 640 (App.Div.1990), that "[i]t is well-established that discovery of relevant materials is allowed under R. 3:13-3 in drunk driving cases." We emphasized in Ford that
a defendant in a drunk driving case is entitled to discovery of all the relevant materials listed in the 11 categories enumerated in R. 3:13-3(a). [Citation omitted]. However, "[u]nlike ...