On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 61-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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, ...