NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 5, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 108-2009.
John Menzel argued the cause for appellant.
Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief; Matthew P. Talia, on the brief).
Before Judges Reisner and Hayden.
Defendant David Z. Massa appeals his conviction following a conditional guilty plea for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division. We affirm.
This appeal arises from the following undisputed facts. On the night of July 27, 2008, the Rutgers University Police pulled over defendant's vehicle and conducted a series of field sobriety tests. Defendant submitted to an Alcotest breath examination, which recorded defendant's blood alcohol content at 0.17 percent. The police arrested defendant and issued a complaint-summons for driving while intoxicated, N.J.S.A. 39:4-50, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.
Subsequently, defendant filed a motion in the municipal court for a jury trial and for additional discovery. On November 30, 2009, the municipal court judge heard defendant's motion. Defendant maintained that he was entitled to specific additional discovery:
A minimum of six files, a file that corresponds to the calibration report, part 1 control tests, part 2 linearity tests, simulator solutions and alcohol influence reports, and a sixth file is . . . a virtual file which we call header information which does not have a corresponding document.
Defendant asserted that the results of the Alcotest should be suppressed because the State failed to fully cooperate with this request. Specifically, defendant maintained that the "internal diagnostic files" on the linearity, control and calibration of the device were missing from the digital information provided for defendant's testing cycle. Instead, the State provided paper copies, which he contended were insufficient to determine whether the Alcotest device was functioning properly. Defendant also sought all the downloaded data from the device since it was first used in 2004.
Defendant submitted into evidence, with the consent of the State, an expert report by Samuel L. Sachs describing the significance of the missing digital data. The expert explained, "[a]lthough the Alcotest has been ruled reliable by the Court, it is clear that anomalies exist as a result of software errors and the existence of such anomalies would be apparent in a data download but would not necessarily be apparent on a [printout]." He stated that a review of all the data downloads of the particular machine used to test defendant since 2004 would allow him to have a "complete picture" and search for "potentially exculpatory" evidence.
The prosecutor maintained that the digital data defendant sought no longer existed. He represented that the Alcotest, as approved by the Court in State v. Chun, 194 N.J. 54 (2008), was designed so that when the machine was recalibrated, the existing internal data was deleted. He argued that the State had provided all the legally mandated discovery and a hard copy of the data download relevant to defendant's test.
The municipal judge denied defendant's motions for a jury trial and suppression of the test results. Defendant entered a conditional guilty plea to DWI, reserving the right to appeal the denial of both motions. The municipal judge sentenced defendant to a loss of driving privileges for seven months, twelve hours at the intoxicated driver resource program, and the requisite fines and costs.
Defendant filed an appeal to the Law Division, reiterating his contention that paper copies of the Alcotest downloads were insufficient because they were missing significant information. He argued that the State's destruction or loss of the data was a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, ...