NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 37-11.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Jay M. Arnesen, attorney for respondent.
Before Judges Espinosa and Guadagno.
The State appeals from the June 29, 2012 order of the Law Division, reversing defendant Keith E. Miller's municipal court conviction for driving under the influence of alcohol, N.J.S.A. 39:4-50. The Law Division judge determined that defendant's right to a speedy trial was violated by the delay in bringing the case to trial and that the municipal judge violated defendant's right to fundamental fairness by not proceeding to trial on the scheduled date. For the reasons that follow, we reverse the decision of the Law Division and reinstate defendant's conviction.
On August 11, 2011, at approximately 6:00 a.m., defendant was arrested by an officer of the Weehawken Police Department and charged with driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated within a school zone, N.J.S.A. 39:4-50(g); speeding, N.J.S.A. 39:4-48; and reckless driving, N.J.S.A. 39:4-96. After defendant's arrest, he submitted to an Alcotest breath examination.
On September 28, 2011, a status conference was held in Weehawken Municipal Court. Defendant's counsel indicated that he would be challenging the Alcotest results.
On October 26, 2011, another status conference was held. The prosecutor explained to the municipal court that the machine used to administer defendant's Alcotest examination had been out of service for two months before being recalibrated and placed back in service prior to defendant's test. Defendant's counsel indicated that he had retained an expert and wanted access to any documents containing information as to why the machine was taken out of service and what repairs, if any, were done. The prosecutor responded that there were three digital data downloads from the machine that would be copied and provided to counsel, but she was not aware of any other documents relating to the machine. The court ordered the prosecutor to provide the digital data downloads from the Alcotest machine to defendant within one week and set trial for November 22, 2012.
When the parties appeared on that date, the prosecutor indicated that she was not ready to proceed as a witness was not available. Defendant objected to adjourning the case as he had retained an expert who was present and prepared to testify. Defendant moved to dismiss the charges and to exclude the Alcotest results based on the State's failure to provide complete discovery of digital downloads for the machine. The prosecutor explained that defendant had been provided with all existing digital data downloads and the machine was not scheduled for additional downloads until mid- to late December. The judge ruled that discovery had been completed and denied both of defendant's motions. Trial was adjourned for two weeks.
On December 6, 2011, the prosecutor informed the court that the officer who administered the Alcotest was not present due to a medical issue. Since the witness required surgery and would be unavailable for two to three months, the State decided to try the case without introducing the Alcotest results, relying solely on the arresting officer's observations. Defendant then entered a conditional guilty plea to driving while intoxicated, but reserved the right to appeal the denial of his motion to dismiss. The municipal court suspended defendant's driver's license ...