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State of New Jersey v. Mark David Carlson


September 14, 2011


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 61-2009.

Per curiam.


Submitted April 12, 2011 -

Before Judges Baxter and Hayden.

Defendant Mark Carlson appeals his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division. After a careful review of the record and the contentions of the parties, we affirm the Law Division judge's denial of defendant's motion to suppress the evidence of intoxication and remand for a hearing on defendant's discovery request.

The record reveals the following undisputed facts. On March 26, 2009, at 11:21 p.m., Police Officer Leonard Thomas observed defendant as he drove in the Borough of Princeton. While on Wiggins Street, the officer observed defendant's vehicle travel over the center double yellow line for approximately thirty feet with the left tires about one foot in the oncoming lane. Other than the vehicles of defendant and the officer, there were no other vehicles or objects on the road.

After proceeding about one thousand feet, defendant turned onto Moore Street. While traveling on Moore Street, defendant drove partially in the driving lane and partially over marked parking stalls on the right side of the street. No center dividing line is painted on Moore Street. The officer first turned his video camera on when he viewed defendant driving over the marked parking stalls.

After defendant turned at the next block, the officer pulled him over. Subsequently, the officer arrested defendant and brought him to the police station. There, defendant participated in a breathalyzer test with an Alcotest, which measured defendant's blood alcohol concentration (BAC) as .13. Defendant received traffic summonses for driving under the influence of alcohol, N.J.S.A. 39:4-50, driving under the influence in a school zone, N.J.S.A. 39:4-50(g), failure to keep right, N.J.S.A. 39:4-82, failure to maintain a lane, N.J.S.A. 39:4-88(b), and reckless driving, N.J.S.A. 39:4-96.

Defendant filed a motion in municipal court seeking to suppress evidence of his intoxication on the basis that the officer did not have a reasonable and articulable suspicion to make the stop. On June 4, 2009, the municipal court judge heard and denied defendant's motion.

On July 9, 2009, the municipal court judge entered a discovery order at the request of defendant with the consent of the prosecutor. The order required the State to provide, among other items,

For Alcotest 7110 ser. no. ARUM-0054 used to test Defendant's breath: All sequentially numbered files in the random access memory and downloaded to read only memory (including alcohol influence report, calibration, control, linearity, solution change, and any and all other tests) for all calibration cycles, including the calibration cycle of which Defendant's breath tests are part, in a digital format readable in a program generally available to consumers in the open market.

The prosecutor told the judge that the State would have no problem producing the ordered information, because it was routinely provided. At the August 13, 2009 hearing, the State had not yet provided complete information, and the prosecutor again represented that he would provide it soon. Defense counsel, on September 21, 2009, in a motion to suppress the results of the Alcotest for failure of the State to provide discovery, wrote:

While the State provided downloaded data for alcohol influence reports and solution changes during the calibration cycle in which Mr. Carlson's breath was tested, it has not provided and downloaded data for calibration, control, linearity, and any and all other tests for that cycle. As for other calibration cycles, the State has provided no data at all. Consequently, Mr. Carlson's ability to review data supposedly supporting the reliability of his breath test result and the operability of the Alcotest used to test his breath has been denied.

On the day of the trial, September 24, 2009, defendant argued that the results of the Alcotest should be inadmissible because "there's been a discovery failure in this case." The prosecutor stated, "I just showed up here today so . . . I cannot represent the ex[tent] of what's been supplied. But I am told that the downloaded information has been supplied." After conferring with the Borough police department, the prosecutor represented that the police department had supplied everything in its possession. Defense counsel argued:

When the prosecutor says that they've supplied downloaded information, he's referring to the entered solution change and Alcohol Influence Report information that's within the custody and control of the Princeton Borough. But he's not making a representation as far as the State Police or Attorney General's Office, is that correct?

I've made my representation about what was received and I do make that representation to the Court. We have the solution change, Alcohol Influence Report, and header information, but not the calibration, control or linearity.

In denying defendant's motion, the municipal judge held:

I don't feel that this is a material non-compliance from the order signed . . . on July 9th. And part of that is because . . .

I'm satisfied that the Chun foundational documents were supplied. These are not those documents. I'm satisfied that the State has provided you with all the documents that are available. . . . I'm not convinced that I understand how this becomes vital and material and exculpatory to this defendant.

Defendant then pled guilty to the reckless driving charge. Under the plea agreement, the State dismissed the charges for failure to keep right and failure to maintain a lane. Defendant lost his driving privileges for three months and paid court costs and fees.

That same day the municipal court judge held a trial on the DWI charges. The court found a per se violation of N.J.S.A. 39:4-50 based solely on the Alcotest BAC reading of .13. The court suspended defendant's driver's license for seven months, required him to attend the Intoxicated Driver Resource Center for 12 hours, and assessed court fines and costs. The State dismissed the charge for DWI in a school zone.

Defendant filed an appeal de novo to the Law Division, which was heard on June 28, 2010. Defendant again argued that the vehicle stop was an unreasonable seizure and that the failure to provide discovery amounted to an unconstitutional withholding of exculpatory evidence. While acknowledging that the State had provided the requisite foundational documents, defendant stated that the downloads of the calibration, control and linearity data logs had not been provided. Defense counsel represented to the court that the electronic downloads contained data in addition to that provided in the written documents, including "certain areas of information, some no less significant than the results of internal diagnostics, that are done by the machine by itself to make sure it's working, that are not disclosed on those paper documents."

On the other hand, the prosecutor argued that the State had established the reliability of defendant's Alcotest results. He explained that "those data logs are only deleted after . . . the pertinent information is downloaded from those data logs and handed over in discovery." The prosecutor represented to the court that all data logs had been printed and provided to defendant. Nevertheless, the prosecutor acknowledged that he did not know if defense counsel's statement that the downloads contained more information than the printed documents was true or not but noted that defendant had provided no expert testimony to support his claim. The prosecutor argued that substantial compliance with the discovery order had occurred because the request for downloads of data was duplicative of the documents already provided.

On August 24, 2010, the Law Division judge issued a written decision. First, he found that the officer had reasonable and articulable suspicion that a motor vehicle violation had occurred sufficient to justify stopping defendant and investigating the basis for his deviation from his lane of travel. Next, the judge declined to suppress the results of the Alcotest for failure to provide discovery. He reasoned that all the requisite foundational documents had been provided and the requested data download had been provided in written form. The judge held that defendant failed to provide proof that the omitted data could have affected the admissibility of the test results and failed to show any prejudice to his case. The judge also found that although defendant alleged that the evidence had been destroyed in bad faith, he provided no facts to support this assertion. In addition, the judge denied defendant's request for a jury trial.

Consequently, the judge found defendant guilty of DWI under N.J.S.A. 39:4-50 and imposed the same sentence as the municipal court. Defendant then filed this appeal.

On appeal defendant argues:








Municipal court decisions are appealed first to the Law Division of the Superior Court. State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972)). When the appeal is from municipal court to the Law Division, the review is de novo on the record. R. 3:23-8. The function of the Law Division judge is to decide the case anew on the record made in the Municipal Court, giving due, although "'not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses.'" State v. Kashi, 180 N.J. 45, 48 (2004) (quoting State v. Johnson, 42 N.J. 146, 157 (1964)); see R. 3:23-8(a). The issue for this court on an appeal from a trial de novo is "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence presented in the record.'" State v. Segars, 172 N.J. 481, 488 (2002) (citing State v. Barone, 147 N.J. 599, 615 (1998)). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Initially, defendant contends that, as the police lacked a reasonable basis for stopping his vehicle, the stop violated his constitutional rights. "The Fourth Amendment prohibits unreasonable searches and seizures by the Government," United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002) (internal quotations and citations omitted), but permits seizures where there is an "articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Place, 462 U.S. 696, 702; 103 S. Ct. 2637, 2642; 77 L. Ed. 2d 110, 118-19 (1983) (citation omitted). Such seizures are commonly called "Terry stops," and "'[a] traffic stop is analogous to a Terry stop.'" United States v. Ruesga-Ramos, 815 F. Supp. 1393, 1397 (E.D. Wash. 1993) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984)). Consequently, the police must have a reasonable and articulable suspicion that defendant was violating the law. State v. Golotta, 178 N.J. 205, 212-13 (2003); State v. Davis, 104 N.J. 490, 500 (1986).

Reasonable suspicion is less than probable cause. Golotta, supra, 178 N.J. at 213; Davis, supra, 104 N.J. at 501. Reasonable suspicion in the traffic context requires a "particularized and objective basis" for believing that the motorist is or was committing a traffic violation. Davis, supra, 104 N.J. at 501. While Article I, paragraph 7 of the New Jersey Constitution may provide additional protections against unreasonable searches and seizures, id. at 502, the observation of a motor vehicle violation is sufficient to constitute a reasonable, articulable suspicion and justifies an investigatory stop. State ex rel. D.K., 360 N.J. Super. 49, 54 (App. Div. 2003). Traffic violations such as lane violations can justify a vehicle stop. See State v. Washington, 296 N.J. Super. 569 (App. Div. 1997).

Although the State must demonstrate by a preponderance of the evidence that a reasonable, articulable suspicion existed at the time of the stop, it is not required to prove that the violation actually occurred. D.K., supra, 360 N.J. Super. at 54 (citing State v. Williamson, 138 N.J. 302, 304 (1994)); Pineiro, supra, 181 N.J. at 19-20. In determining whether, by a totality of the circumstances, there was a reasonable, articulable suspicion, all circumstances known to the police officer must be considered by the court. Davis, supra, 104 N.J. at 501. Abnormal operation of a motor vehicle may provide a reasonably objective basis to justify a stop. See State v. Cummings, 184 N.J. 84, 89 (2005)(stop justified for crossing the center line); State v. Widmaier, 157 N.J. 475, 481-82 (1999)(stop justified for crossing center line, no turn signal and skidding); State v. Stever, 107 N.J. 543, 546, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987)(stop justified for crossing center line twice).

Here the underlying traffic offenses asserted by the officer were failure to keep right, N.J.S.A. 39:4-82*fn1 , failure to maintain a lane, N.J.S.A. 39:4-88(b)*fn2 , and reckless driving, N.J.S.A. 39:4-96. On the day of the scheduled trial, defendant, admitting that he had been driving recklessly, pled guilty to N.J.S.A. 39:4-96. Defendant argues that the State did not have the requisite reasonable and articulable suspicion to justify the stop of his vehicle. We disagree.

In the instant case, it is undisputed that defendant crossed the double yellow lines for 30 feet. By crossing over the double lines into the lane for oncoming traffic, he failed to drive "on the right half of the roadway . . . as closely as possible to the right-hand edge or curb of the roadway." N.J.S.A. 39:4-82. As a result, the officer had reasonable suspicion that defendant violated N.J.S.A. 39:4-82, failure to keep right. Under the totality of the circumstances, including the lateness of the hour, the failure to keep right and the subsequent straddling of the driving lane and parking stalls, we agree with the Law Division judge's ruling that the police officer was justified by a reasonable, articulable suspicion to pull over the vehicle to determine the basis for defendant's deviation from the right lane. Accordingly, we affirm the Law Division judge's denial of defendant's motion to suppress.

We next turn to defendant's argument that the State's failure to provide the electronic downloads of certain documents made available in discovery renders defendant's Alcotest result unreliable and inadmissible.

Rule 7:7-7 governs discovery in municipal court. In "all cases involving a consequence of magnitude . . . relevant discovery substantially similar to that enumerated in Rule 3:13-3(b) shall be provided on written notice to the municipal prosecutor." R. 7:7-7. The consequence for a DWI conviction in New Jersey is considered "a consequence of magnitude to which the discovery rule applies." State v. Maricic, 417 N.J. Super. 280, 283-84 (App. Div. 2010)(citations omitted).

The discovery permitted in drunk driving cases includes "all the relevant materials listed in the 11 categories enumerated in R. 3:13-3(a)." State v. Ford, 240 N.J. Super. 44, 47 (App. Div. 1990). However, "'[u]nlike discovery in civil cases, information cannot be demanded which merely leads to other information which is "relevant."'" Maricic, supra, 417 N.J. Super. at 284 (citing Ford, supra, 240 N.J. Super. at 48). Thus, while defendant has a right to complete discovery, "allowing a defendant to forage for evidence without a reasonable basis is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws." Ibid. (internal citations omitted).

On appeal, defendant argues that by failing to produce the downloaded data logs for calibration, control and linearity, the State prevented defendant from gaining access to "critical files necessary to understanding the instrument's operability." Additionally, he argues that the State's failure to establish the statewide database the Supreme Court ordered in State v. Chun, 194 N.J. 54, 151-152 (2008), shows that the State intentionally lost exculpatory evidence.

Further, defendant argues that the failure to provide the downloaded material is a due process violation that must result in either the dismissal of the charge or the exclusion of the Alcotest evidence. "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963). Material evidence must "both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984); see also State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000). Where the prosecution fails to provide requested information, reversal may be required if the suppressed evidence "'might have affected the outcome of the trial.'" State v. Knight, 145 N.J. 233, 246 (1996), certif. denied, 170 N.J. 205, (2001)(citing United States v. Agurs, 427 U.S. 97, 104, 96 S. Ct. 2392, 2398, 49 L. Ed. 2d 342, 350 (1976)).

The State counters that all the mandatory foundational documents were produced in discovery but acknowledged that the data logs for the calibration, control and linearly function files were not provided in electronic form. However, the State insists that the information provided to defendant in written form was the identical information. The State denies that clearing the memory of three fields after the pertinent information is reduced to written form and handed over to defendant constituted destruction of exculpatory evidence. Moreover, since defendant obtained comparable evidence by other means, and none of that evidence proved exculpatory, the State argues that the cleared data could not have been exculpatory.

A brief review of applicable law on the admissibility of Alcotest results will provide a necessary framework to our analysis. After an extraordinarily thorough investigation and painstaking analysis of the Alcotest device for measuring BAC, our Supreme Court held that the Alcotest, utilizing New Jersey Firmware version 3.11, is "generally scientifically reliable," subject to certain conditions established by the Court. Chun, supra, 194 N.J. at 65. In order for the results of the Alcotest to be admitted into evidence, the State must establish three things: "(1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 143 (citing Romano v. Kimmelman, 96 N.J. 66, 81 (1984)). To this end, the Court mandated that the State must disclose in discovery twelve "foundational" documents. Id. at 148. In order to insure that the State met the requirements for determining that the Alcotest device was working properly in a particular case, the Court required that in every case the State must enter into evidence at trial three core foundational documents.*fn3 Chun, supra, 194 N.J. at 154.

However, the Court determined that it was not necessary to admit into evidence the other foundational documents to establish the admissibility of the Alcotest results because these documents were mainly "tests of tests," and "not fundamentally a part of demonstrating that a particular machine was in good working order." Id. at 144-45. Nonetheless, the Court ordered all foundational documents to be provided in discovery to allow a defendant to challenge "the accuracy of the devices used and chemical composition of the solutions used to routinely test and calibrate the machine." Id. at 142.

In this case the parties do not dispute that the State provided the core documents as well as the other foundational documents to defendant. However, defendant also requested the data log downloads for the Alcotest device used to test defendant "for all calibration cycles, including the calibration cycle of which defendant's breath test was a part." We have previously held that discovery in addition to the core and fundamental documents from Chun must be provided when relevant. Maricic, 417 N.J. Super. at 283-84. In Maricic, we stated:

We acknowledge that the two items of discovery requested by defendant in this case are not included in either Judge King's list of fundamental documents or in the more abbreviated list adopted by the Supreme Court. However, we do not regard that fact as a restriction on discovery. As is clear from the Supreme Court's opinion, the foundational documents are required in order to establish the reliability of the Alcotest device utilized in connection with a particular prosecution. As in Ford, discovery of the sort defendant seeks is "extremely material" as a means to test that reliability. Ford, supra, 240 N.J. Super. at 51. It is accordingly required. [Id. at 285]

In Maricic, we remanded the case to the municipal court for the provision of, among other information, "[d]ownloaded Alcotest results from the subject matter instrument from the date of the last calibration until Defendant's breath tests." Id. at 282. Evidently, there was no question that the downloads existed, had not been provided and contained relevant information not disclosed to defendant in any other form.

In contrast, here a factual dispute exists as to whether the complete information from the downloaded data logs has been provided. The State represents that everything contained in the downloaded data logs was printed and provided to defendant in written form, and then the device was cleared as a routine procedure.*fn4 On the other hand, defendant represents that the downloaded data log contained information not provided in the written documentation of critical importance to the issue of the reliability of the machine.

While the Law Division judge found that all requested information contained in the downloads had been provided in written form, we cannot find in the record any indication as to the evidence, other than unsworn representations of counsel, that he relied upon to reach his conclusion. If the judge reviewed documents that allowed him to make such a determination, he failed to state the basis for his determination on the record and no such evidence is contained in the record on appeal for our review. Hence, we are unable to determine on the basis of the record provided on appeal whether or not all downloaded data requested was provided to defendant here and whether, pursuant to Chun and Maricic, it should have been.

Accordingly, we remand the case to the Law Division for a hearing to determine whether the State provided the complete downloaded data concerning calibration, control and linearity from the Alcotest to defendant. If the downloaded data was not provided, the judge must determine the nature of any missing data and its relevance to the issue of the reliability of defendant's test results. Lastly, if necessary, the judge must address the question of whether the evidence possessed exculpatory value and was of such a nature that no comparable evidence by other reasonably available means existed. See California v. Trombetta, supra, 467 U.S. at 488, 104 S. Ct. at 2534, 81 L. Ed. 2d at 422.

We have considered other arguments raised by defendant and have determined they are without sufficient merit to require discussion in this opinion. R. 2:11-3(e)(2). We add only that, as defendant acknowledges, the law is well settled in New Jersey that a defendant charged with a violation of N.J.S.A. 39:4-50 has no right to a jury trial. State v. Hamm, 121 N.J. 109 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991).

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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