On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 08-09.
The opinion of the court was delivered by: Payne, J.A.D.
Before Judges Cuff, Payne and Miniman.
The opinion of the court was delivered by PAYNE, J.A.D.
Defendant, Joseph Maricic, appeals from an order of the Law Division denying his motion for discovery, finding him guilty of driving while intoxicated in violation of N.J.S.A. 39:4-50, suspending his license for a period of eight months, imposing various fines and costs, and staying the sentence pending appeal. On appeal, defendant presents the following arguments:
Point I -THE DECISION OF THE HUDSON COUNTY LAW DIVISION, WHEREIN THE COURT RULED THAT THE DEFENDANT-APPELLANT WAS NOT ENTITLED TO THE HISTORICAL ALCOTEST DATA DOWNLOAD INFORMATION, HAS BEEN RENDERED MOOT BY THE APPELLATE DIVISION'S RULING IN STATE v. REARDON, WHEREIN SUCH DISCOVERY WAS ORDERED TO BE PROVIDED.
Point II -THE LAW DIVISION ERRED IN DENYING THE DEFENDANT'S MOTION FOR ADDITIONAL DISCOVERY SINCE NO RECORD HAD BEEN CREATED BY THE MUNICIPAL COURT FOR THE LAW DIVISION TO RELY UPON IN THE CONTEXT OF TRIAL DE NOVO.
The record reflects that on August 6, 2006 at approximately 10:25 p.m., defendant was arrested for driving while intoxicated, N.J.S.A. 39:4-50, speeding, N.J.S.A. 39:4-98, and making an illegal U-turn, N.J.S.A. 39:4-125. An Alcotest was administered, creating a reading of 0.19 blood alcohol content.
Following the Supreme Court's decision in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), defense counsel moved for the following discovery:
1) Downloaded Alcotest results from the subject matter instrument from the date of the last calibration until Defendant's breath tests pursuant to the New Jersey Supreme Court's Order attached to the Chun Opinion as set forth on page 8,*fn1 3.B. of same;
2) the calculation set forth in the foregoing Order on page 3,*fn2 A.(1)(a) for the purported two breath sample results of Defendant;
3) any repair logs or written documentation relating to repairs of the subject matter Alcotest as set forth in Chun on page 124,*fn3 footnore 48;
4) to advise Defendant whether, and when, the fuel cell drift algorithm has been implemented since the subject matter Alcotest was last calibrated (see Chun ...