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State of New Jersey v. Michael Carrero

October 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MICHAEL CARRERO, DEFENDANT-RESPONDENT.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ANDRES F. BALUSKI, DEFENDANT-RESPONDENT.



On appeal from interlocutory orders of the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 401 and Municipal Appeal No. 403.

The opinion of the court was delivered by: Sabatino, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 10, 2012

Before Judges Parrillo, Sabatino and Fasciale.

The opinion of the court was delivered by SABATINO, J.A.D.

These two interlocutory appeals, which we consolidate for the purposes of this opinion, arise from similar orders of the Law Division granting defendants certain discovery in drunk driving prosecutions. Specifically, the orders permit defense counsel and defense experts to inspect and photograph rooms within the police stations where defendants respectively provided breath samples for the Alcotest in order to verify that the tests were properly administered. The State opposes the requested access to the interior of the police stations, arguing that such access is unnecessary and also raises countervailing security concerns.

For the reasons that follow, we reverse the discovery orders because defendants have not shown a reasonable justification to conduct the requested inspections.

I.

The record supplied in each of these interlocutory appeals is exceedingly limited. We have been told little about the underlying facts and circumstances, except that each defendant was arrested for drunk driving, was brought to a police station, provided breath samples on the Alcotest device, and thereafter sought and was granted judicial permission for his counsel (and/or an expert witness) to inspect and photograph the interior of the police station where the Alcotest was administered. The pertinent details from the sparse appellate record with respect to each defendant are as follows.

Carrero

On July 3, 2011, Michael Carrero, defendant in A-3232-11, was charged in the municipal court in Toms River Township with driving while intoxicated ("DWI"), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to maintain his vehicle in its lane, N.J.S.A. 39:4-88(b); and delaying traffic, N.J.S.A. 39:4-56. The DWI charge against Carrero apparently is based upon an Alcotest report showing that his blood alcohol content ("BAC") exceeded the legal limits.

Defense counsel for Carrero thereafter served the municipal prosecutor with pretrial discovery requests. One of those requests sought the following:

7. An opportunity for defense experts and/or counsel to view, inspect, diagram and photographically and/or electronically record other electronic devices in the breath test [Alcotest] device and simulator rooms, as well as adjoining (side, above or below) and nearby rooms (within approximately 100 feet) which may emit electromagnetic interference (EMI) including but not limited to radio frequency interference, i.e., photocopying machines, radio transmitters, microwave oven, computer terminals, etc. Said opportunity includes photocopying of instruction and service manuals for any electrical or electronic devices located in the area. This inspection should be permitted at the time of pre-trial [proceedings] and/or trial in this matter[.] [Emphasis added.]

Carrero's attorney requested this inspection in order to verify that there were no electromagnetic interference-emitting devices in or near the testing room at the Toms River police station that could have interfered with the Alcotest's operation.

The State has opposed this discovery request. It maintains that such an inspection is unnecessary. Moreover, the State contends that the security of the police station would be compromised if private individuals were allowed to inspect and photograph its interior for this purpose.

The municipal judge in Toms River granted the requested discovery, including the inspection of the interior of the police station, except that he denied Carrero's associated request to copy the police instruction manuals. The State then moved in the Law Division for leave to appeal the Toms River judge's discovery ruling. Carrero did not cross-appeal the denial of access to the manuals.

After hearing oral argument, the Law Division judge declined to grant the State interlocutory relief from the discovery order. In his oral decision, the Law Division judge acknowledged that he was "sympathetic" to the State's security concerns, but nonetheless concluded that the requested inspection was reasonable. The Law Division judge further noted that the State could seek a protective order to limit the dissemination of photographs or diagrams created as a result of the inspection. The Law Division judge consequently entered an order on January 4, 2012 denying the State's application for leave to appeal the municipal court's order allowing the inspection. We subsequently granted the State's motion for leave to appeal.*fn1

Baluski

On June 18, 2011, Andres F. Baluski, defendant in A-4319-11, was charged in Stafford Township by the State Police with DWI, N.J.S.A. 39:4-50. Baluski apparently failed an Alcotest administered at the Bass River barracks of the State Police following his arrest.

During the course of pretrial discovery in the municipal court, Baluski's attorney similarly requested to inspect, in the company of an expert, the room at the barracks where the Alcotest had been administered. Baluski presented a different justification for his request than Carrero. Specifically, Baluski sought access to the testing room to confirm that it is physically arranged to enable a police officer to have continuously observed him for twenty minutes before the Alcotest was administered. Such continuous pre-testing observation for the Alcotest ...


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