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State v. Lobo

Superior Court of New Jersey, Appellate Division

August 28, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ALAN J. LOBO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 24, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 63-2011.

John Menzel argued the cause for appellant.

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit and Susan L. Berkow, of counsel; Ms. Berkow, on the brief).

Before Judges Axelrad, Sapp-Peterson and Haas.

PER CURIAM.

Defendant entered a conditional guilty plea to driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50, after the municipal judge denied a number of motions defendant filed seeking to dismiss the charge. Upon de novo review in the Law Division, the Law Division judge once again denied defendant's motion to dismiss the charge or, alternatively, to exclude the Alcotest results. The judge also denied defendant's demand for a jury trial. The judge imposed fines and penalties and ordered defendant "to forfeit his driving privileges for two years, to have an ignition interlock installed for one year after reinstatement of his driving privileges, to attend an intoxicated driver resource center for [forty-eight] hours, and to perform [thirty] days of community service." The judge stayed execution of the sentence for forty-five days. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I
BY FAILING TO PROVIDE THE DEFENSE WITH COMPLETE ALCOTEST DATA AND REPAIR RECORDS, THE STATE WITHHELD MATERIAL, RELEVANT, EXCULPATORY EVIDENCE, WARRANTING THIS COURT TO EITHER DISMISS THIS MATTER OR EXCLUDE THE ALCOTEST RESULT.
A. THE STATE FAILED TO EITHER PRODUCE ELECTRONIC ALCOTEST DATE OR ADEQUATELY EXPLAIN ITS DESTRUCTION.
B. THE COURTS BELOW IMPROPERLY RELIEVED THE STATE OF ITS OBLIGATION TO PROVIDE REPAIR RECORDS TO THE DEFENSE IN DISCOVERY.
C. PROSECUTION FAILURES TO PROVIDE MANDATED DISCOVERY TO THE DEFENSE WARRANTS A REMEDY.
POINT II
BECAUSE THE ALCOTEST HERE FAILED TO ADHERE TO THE TWO-MINUTE LOCKOUT BETWEEN VARIOUS ETHANOL MEASUREMENTS, THIS COURT SHOULD EXCLUDE THE ALCOTEST RESULT.
POINT III
BECAUSE POLICE VIOLATED REQUIRED PROCEDURE BY FAILING TO GIVE DEFENDANT A COPY OF THE ALCOHOL INFLUENCE REPORT ON HIS RELEASE FROM CUSTODY, THIS COURT SHOULD EXCLUDE THE ALCOTEST RESULT.
POINT IV
THE STATE'S FAILURE TO USE THE DIGITAL PROBE SPECIFIED BY THE SUPREME COURT IN STATE V. CHUN FOR USE IN CALIBRATION WARRANTS EXCLUSION OF HIS ALCOTEST RESULT.
POINT V
TO PRESERVE THE RECORD, DEFENDANT ASSERTS A RIGHT TO A JURY TRIAL.

We have considered the points raised in light of the record, the arguments advanced and the applicable legal principles, and reject each of the points raised. We therefore affirm.

I.

Police arrested defendant on April 29, 2011, charging him with DWI, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97, and transported him to the State Police Barracks in Cranbury for processing. Police administered a breathalyzer test of defendant's blood alcohol content (BAC), utilizing the Alcotest 7110 MK III-C (Alcotest). The test revealed defendant's BAC was 0.13%.

On May 3, 2011, defense counsel filed a demand for discovery and a jury trial. On June 16, 2011, the parties appeared before the South Brunswick Township Municipal Court judge, who entered a pretrial order which noted that all but the "Draeger[1] Safety Ertco-Hart Calibration Report" had been provided to defense counsel. On June 23, 2011, the court issued a second discovery order instructing the State to provide defense counsel with additional discovery items, notably, the data downloads as well as repair records of Alcotest 7110 serial number ARUL-0062.

During a discovery conference held on July 21, 2011, the State advised the court of the unavailability of certain portions of the Alcotest repair records, resulting in the court entering a modified order on June 23, directing the State to only provide "any repair records that exist."

The State provided the following repair records related to the Alcotest machine on August 2, 2011:

1. Packing slip 80266447 dated January 16, 2007;
2. Breath Testing Instrumentation Service Report dated March 9, 2010;
3. Return and Repair form dated March 12, 2010;
4. Packing Slip 80506080 dated March 17, 2010;
5. Breath Testing Instrumentation Service Report dated March 23, 2010;
6. Packing Slip 80616410 dated July 25, 2011;
7. Return and Repair form dated July 25, 2011;
8. Breath Testing Instrumentation Service Report dated August 12, 2011.

Defendant received an additional packing slip while his dismissal motion was pending. Defendant was also provided with a printout of the electronic data of the Alcotest machine.

On August 4, 2011, defendant filed a pretrial motion to dismiss the matter or, in the alternative, exclude the Alcotest results on several grounds, namely, the use of a non-Ertco-Hart thermometer during the Alcotest calibration, incomplete data downloads, failure to leave a two-minute gap between "various ethanol measurements, " and failure to provide defendant with a copy of his Alcohol Influence Report (AIR) upon release from custody.

On September 15, 2011, Judge Dawn Shanahan denied defendant's motion to exclude the Alcotest results based on the use of a non-Ertco-Hart thermometer. The court specifically referenced our decision in State v. Holland, 422 N.J.Super. 185, 197 (App. Div. 2011) (Holland I), affirmed after remand, 423 N.J.Super. 309 (App. Div. 2011) (Holland II), wherein we stated that "the use of another manufacturer's [digital thermometer] to calibrate the Alcotest does not alone compel exclusion of these results[, ]" and thereby rejected the argument that utilizing a non-Ertco-Hart thermometer in the BAC testing was contrary to the Court's holding in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S.Ct. 138, 172 L.Ed.2d 41 (2008).

Judge Shanahan also found meritless defendant's challenge to the completeness of the electronic data downloads generated during the calibration of the Alcotest machine as provided in discovery, finding that the State's provision of the electronic downloads in printed form was sufficient. Likewise, the municipal judge rejected defendant's argument that failure to provide him with a copy of his AIR upon his release was yet another basis to suppress the Alcotest results. She reasoned that defendant did not allege the AIR he received in discovery was falsified, nor did he show any prejudice or harm resulting from the late receipt of the AIR.

Finally, Judge Shanahan denied defendant's motion to exclude the Alcotest results because of an inappropriate time lapse between ethanol measurements. Defendant argued that the Alcotest operator erred because "less than two minutes occurs at various parts of the calibration control test and solution change functions, as well as between control tests and breath tests." The judge disagreed, stating that the two-minute lockout period required under Chun relates only to the interval between breath samples, as it is "designed to [prevent] any residual alcohol contamination from mouth alcohol still inside the cuvette from a previous breath sample" and therefore "does not extend to control tests or to any other functions performed" on the Alcotest machine.

On September 29, 2011, defendant moved for reconsideration in light of our unpublished decision in State v. Carlson, No. A-0772-10 (App. Div. September 14, 2011). The court ordered the parties to brief the issue. On October 27, 2011, the court denied defendant's motion for reconsideration. Judge Shanahan reiterated that she was not persuaded the deleted data was material, relevant or exculpatory evidence. She also denied defendant's motion for a jury trial.

Defendant entered a conditional guilty plea to DWI, preserving for appeal the issues raised in connection with his motion to dismiss the case or suppress the Alcotest results. During his plea allocution, defendant admitted he consumed three or more rum and coke beverages before driving on the day he was arrested. Defendant was sentenced, as a second offender, to two days in prison, ordered to serve forty-eight hours in the Intoxicated Driver Resource Center, and forfeited his driving privileges for two years. The court ordered the installation of an alcohol ignition interlock for one year following the restoration of his driving privileges, and imposed a variety of other monetary fines and court costs, including thirty days of community service. These penalties were stayed pending appeal. Finally, defendant's careless driving charge was dismissed.

Defendant filed a timely notice of appeal before the Law Division. On March 27, 2012, Judge Alan A. Rockoff, J.S.C., retired and on recall, conducted a de novo review and determined that defendant's motion to dismiss or exclude the Alcotest results was properly denied. He also denied defendant's request for a jury trial. He imposed the same sentence as the municipal judge and stayed the penalties pending appeal before this court.

Because the issues on appeal are largely legal issues, we owe no deference to the trial court's interpretation of the law, and the legal consequences that flow from the established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995). A trial court's denial of discovery requests is reviewed under an abuse of discretion standard. State v. Enright, 416 N.J.Super. 391, 403-04 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011). We will not disturb such rulings absent proof of a manifest injustice. State v. Broom–Smith, 406 N.J.Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010). Likewise, a trial court's evidentiary rulings are entitled to deference and will not be disturbed on appeal unless there was a clear abuse of the trial court's discretion. State v. J.A.C., 210 N.J. 281, 293 (2012).

Although discovery in municipal courts mirrors discovery rules in the Law Division, "our courts have applied a narrower concept of 'relevant' discovery in DWI cases, which are quasi-criminal in nature, than in full-fledged criminal cases." State v. Carrero, 428 N.J.Super. 495, 507 (App. Div. 2012). "Therefore, an accused's right to discovery in a DWI prosecution is limited to items as to which 'there is a reasonable basis to believe will assist a defendant's defense.'" Ibid. (quoting State v. Ford, 240 N.J.Super. 44, 49 (App. Div. 1990)).

II.

A DWI defendant cannot require the court to compel the State to reveal information which merely could lead to other information that is relevant. State v. Maricic, 417 N.J.Super. 280, 284 (App. Div. 2010); Ford, supra, 240 N.J.Super. at 48; cf. R. 4:10-2(a) (more broadly defining, by contrast, the right of discovery in civil matters to embrace "information sought [that] appears reasonably calculated to lead to the discovery of admissible evidence"). "In essence, the discovery sought in DWI matters must be relevant in and of itself." Carrero, supra, 428 N.J.Super. at 508.

In Chun, the Court held a condition precedent to the admissibility of Alcotest results is proof that: (1) the Alcotest was in working order and inspected prior to the procedure in question; (2) the operator was certified; and (3) the operator administered the test according to official procedure. Chun, supra, 194 N.J. at 134. The first Chun factor requires the State to produce and admit the following foundational documents:

(1) the most recent calibration report prior to a defendant's test, with part I-control tests, part II-linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant's test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests.
[Id. at 145.]

A. Deletion of the Electronic Data Here, defendant alleges that the prosecution provided only three of the six computer files that comprise the calibration report routinely downloaded from the Alcotest at issue. These electronic files are generated each time the Alcotest machine is calibrated and are "deleted from the computer once it is verified that Alcotest 7110 Calibration Certificates have been successfully printed." Defendant alleges that each set of downloaded data produced by the New Jersey State Police does not include, in electronic format, files 21NJ3-11, calibration information for the calibration function; 22NJ3-11, Part I-Control Tests; and 58NJ3-11, Part II-Linearity Tests, though they were provided in paper format. Defendant urges that as a result of these deficiencies, the State failed to satisfy its discovery obligation, which is not satisfied by providing hard copies of the electronic data. Defendant points out that the former director of the New Jersey State Police (NJSP), Office of Forensic Sciences, in his testimony in Chun, testified that he reviewed "both hard copy AIRs and electronic download[ed] data[, ]" and compared the two in assessing the reliability of the Alcotest device. As such, defendant urges that the failure to provide the information in both formats precluded him from gaining a full assessment of the working order of the machine.

In addition, defendant contends, by the State's own admission, the printed version of the downloaded data omits some information contained in the electronic files due to a "firmware bug" that was not disclosed to the Supreme Court in Chun. Specifically, in a March 12, 2009 memorandum prepared by Dr. Howard Baum, Ph.D., the current director of the NJSP Office of Forensic Sciences, he explained that the three missing electronic data files were being deleted after calibration certificates have been successfully printed, and the reason why:

The reason the files are deleted is to prevent [the] instrument from not functioning when it is put in use after calibration due to a firmware bug. The next version of firmware is addressing this bug. The firmware bug does not affect the immediately printed Alcotest 7110 Calibration Certificates and does not affect the reliability of the Alcotest. However[, ] the electronic calibration files do contain additional data that is not printed on the Alcotest 7110 Calibration Certificates.
I have examined the electronic files generated during calibration and feel the additional un[]printed data that they contain is not necessary to be preserved. Most of the un[]printed data lists the times of calibration, linearity, solution change, and retrieval date. Even though the times are not captured on the printouts, the dates of these operations are listed[, ] which is sufficient. The only other pieces of data that are not captured are the software version (NJ3.11) and tolerance (5% and 0.005)[, ] which do not change[, ] and the record type[, ] which is not needed. The reliability of the Alcotest and the review of Alcotest results is not affected by the deletion of these files.

Defendant asserts the court erred in accepting Dr. Baum's "bald assertion" that a firmware bug caused the loss of this electronic data. Defendant posits that the State "has intentionally removed one of the temporary safeguards the Supreme Court sought to provide to all defendants pending publication of the electronic Alcotest data on the internet" as instructed in Chun. Such a failure, defendant urges, is a due process violation that must result in the dismissal of the charge or the suppression of the Alcotest result.

In response, the State maintains that defendant received all information relevant and material to the operability of the Alcotest, and insists that the deleted data have no bearing on the working order of the device. Thus, failure to produce these files does not constitute a Brady[2] violation and should not preclude the admission of the Alcotest results.

While defendant has a constitutionally protected right to request and obtain from the prosecution evidence that is either material to the guilt of defendant or relevant to the punishment to be imposed, this right is not without limit. State v. Hollander, 210 N.J.Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). Where there has been suppression, loss or destruction of physical evidence in a criminal case, the court must consider three factors in determining if a due process violation occurred: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence." Id . The defendant bears the burden of proving bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060, 1066 (2004). To establish bad faith, this court has held

that there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions, the right of the public to its day in court in the prosecution of properly found indictments should be forfeited only if otherwise there would be manifest and harmful prejudice to defendant.
[State v. Clark, 347 N.J.Super. 497, 508-09 (App. Div. 2002) (citations omitted).]

Evidence is "material" only if there is a "reasonable probability" that the disclosure of the evidence would have changed the result of the proceeding. State v. Mustaro, 411 N.J.Super. 91, 101 (App. Div. 2009). To be material, the "evidence must both possess an exculpatory value that was apparent before [it] . . . was destroyed, and be of such a nature that the 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, 2533, 81 L.Ed.2d 413, 421-22 (1984)).

Defendant attempts to establish the materiality of the electronic data, which has been deleted here due to a purported firmware bug, by referencing the record in Chun where the then forensic director of the NJSP issued a report in which he stated that he and other staff from the Office of Forensic Sciences, under his supervision, compared the electronic data to the hard copy reports provided. The forensic director explained the data was reviewed for any discrepancies between the electronic downloaded data from the instruments and the hard copy reports provided. Since the electronic files have been deleted, defendant essentially argues he has no way of undertaking a similar comparison in order to insure there were no discrepancies.

We do not disagree that such evidence is relevant. However, the question is whether the deleted electronic files were material. In that regard, we note that the deleted electronic files at issue are not components of any of the three foundational documents required to be introduced as a condition precedent to the admissibility of the test results, nor components of foundational documents required to be served during discovery. Although the State's expert in Chun undertook a comparison of the electronic data with the hard copy data as a form of quality control against discrepancies, that comparison did not result in the Court in Chun adopting such a procedure as a condition precedent to the admissibility of the test results. Chun does not address this issue at all. Rather, Chun merely requires the State to provide, as foundational documents, "the most recent calibration report prior to a defendant's test, with part I-control tests, part II-linearity tests . . ." without prescribing a preferred format. Chun, supra, 194 N.J. at 145. Defendant does not dispute that the State satisfied these Chun requirements.

Defendant points to the directive in Chun requiring the State to "create and maintain a centralized statewide database, comprised of downloaded Alcotest results, and [] make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel." Id . at 153. This does not necessarily convert the electronic format of such data into a foundational document. Presumably, electronic data are a more compatible mode of storing information on an internet database than are paper records. The calibration, control and linearity tests are undoubtedly discoverable under Chun. However, there's no case law to support defendant's insistence that they be provided in electronic format in addition to the hard copy.

Finally, defendant has proffered no evidence rebutting the State's explanation for the electronic deletions. No bad faith will be found where destruction of evidence occurs "as a matter of routine." State v. Reynolds, 124 N.J. 559, 569 (1991). Having failed to demonstrate the State's bad faith, there was no abuse of discretion by either the municipal judge or the Law Division judge in denying defendant's motion to dismiss the DWI charge or, alternatively, to exclude the results of the Alcotest.

B. Repair Records

Defendant next contends he was deprived of substantial portions of the Alcotest repair record. He was provided with packing slips chronicling shipment to and from the manufacturer for repairs dated January 16, 2007 and July 25 2011; Breath Testing Instrumentation Service Reports for March 9, 2011, March 23, 2011 and August 12, 2011; as well as Return and Repair Forms for March 12, 2010 and July 25, 2011.

What defendant was not provided were the actual repair records, if any, of the Alcotest machine. The Law Division judge found that because repair records were available and defense counsel never made an effort to secure those records, defendant failed to demonstrate any prejudice resulting from the State's failure to provide those records. We agree defendant has not demonstrated actual prejudice in not receiving the requested records.

In defendant's original discovery demand, he sought the following discovery related to the Alcotest 7110 MK-III-C machine utilized to test defendant's breath:

d. Records showing that the Alcotest 7110 MK-III-C relevant to this case was in proper working condition, including a timely manufacturer's certificate of accuracy.20
f. Interoffice communications, memoranda, and other documents exchanged within the police department concerning the Alcotest relevant to this case, and all letters, memoranda, and other correspondence between this department and New Jersey state agencies and Draeger concerning the Alcotest relevant to this case.

20 See [Chun, supra, 194 N.J. at 153] (Order entered March 17, 2018, at par. 3C(5)).

During a pretrial conference conducted on July 21, 2011, the State attempted to narrow the repair record request, stating that the municipal judge's earlier order simply referenced the requirement to produce repair records. The State pointed out that Alcotest machines had been put into service in 2004 or 2005. The court modified its order to require the State to produce "repair records that exist." In response to the court's inquiry whether this was a fair resolution of the issue, defense counsel stated: "That's fair. Can't give me what doesn't exist[.]"

The parties returned to court on August 11, 2011 for what the court originally believed was intended to be a status conference during which the court would receive a supplemental request for discovery. Defense counsel explained that it was his understanding that the purpose of the conference was either to request supplemental discovery or for the court to consider a pretrial motion, and he had elected the latter. During the hearing, the court inquired of defense counsel about his request for repair records. Defense counsel responded: "Yes, Judge. And I think the way you phrased the order, the order has been satisfied. I of course wanted the actual repair records. But you[, ] I think[, ] had limited [it] to some degree[, ] and within that limitation[, ] it would appear it's been, the order has been satisfied."

On September 15, 2011, the court conducted oral argument on defendant's dismissal motion based upon the alleged discovery violations. After denying the motion, the court inquired whether the defense was ready to proceed to trial. Defense counsel advised the court that he had received additional discovery, which he was

having an expert review concerning some of the repair records. We don't have all of the repair records. We don't have those records from Draeger and I know that's become an issue of contention lately. Nonetheless, there is information disclosed on some of the repair records. So I'm, going to ask that we set it down for either one more case management conference or a trial date sufficiently in the future where I can at least have my expert complete his review and get a report.

In response, the municipal prosecutor advised the court that the State had provided service reports in the form of packing slips and the dates of those packing slips: January 19, 2007, March 9, 2010, March 17, 2010, and March 23, 2010. The prosecutor then stated: "[T]he records that they're requesting from Draeger need to be subpoenaed through Draeger. It's not in the State's control. There is an address that I can provide counsel, if he is not familiar with that address. But that should not hold up this case." Thereafter, the following colloquy occurred between the court and the attorneys:

THE COURT: Yes. You mentioned that. Your expert is already looking over those repair records?
[DEFENSE COUNSEL]: Well, there is . . . the Draeger parts - -
THE COURT: But you're having trouble getting them from Draeger?
[DEFENSE COUNSEL]: Yeah. The Draeger part is still missing.
THE COURT: Yes. Did you subpoena them?
[DEFENSE COUNSEL]: No.
THE COURT: No.
[DEFENSE COUNSEL]: They're in the - -I believe that should be encompassed by the order.
[PROSECUTOR]: Well, certainly the State's obligation to this order is to provide the discovery that we're required to provide. It's very clear that we can't provide something that is not in our control or custody. It's with Draeger. Counsel, I can certainly provide the address. But I would respectfully ask the [c]ourt not to delay this any further, the trial of this matter, based on the lack of, you know, receipt[, ] and in this case Draeger is not going to know that they need to send out those repair records unless they're subpoenaed. And if they don't have a subpoena from counsel on this matter, I don't think that they're going to send it out on their own.
[PROSECUTOR]: With all due respect, Your Honor, counsel was aware that these records existed and that Draeger would have them. This is not something new. Defense bar is long - - [defense counsel] is leading the defense bar as far as I know in holding the State's feet to the fire. So the fact that this has not been subpoenaed is an unfortunate circumstance, but through no fault of the State[, ] and this [c]ourt ought not to grant further delays based on discovery that should have been requested months ago, perhaps.
[PROSECUTOR]: The repair records were sent to counsel, were dispatched on 8/2. So if he received it a couple of days after that, he has had this for over a month. So the fact that his expert now needs another 30 days is what I'm a little concerned with.
THE COURT: Well, he hasn't received them from Draeger. You did subpoena them. Is that correct?
[PROSECUTOR]: No. He hasn't subpoenaed them yet.
[DEFENSE COUNSEL]: No, no, Judge. I have been relying on the discovery order.
THE COURT: Oh, I didn't realize that. I thought you meant that you had sent out the subpoena, but you just hadn't received the Draeger component.
[DEFENSE COUNSEL]: No, No. He mentioned the subpoena and [that] he would provide me with the address.
THE COURT: I see, okay.
[PROSECUTOR]: Just so we're clear, Your Honor, - -
THE COURT: Can I ask why you haven't subpoenaed those records then until now?
[DEFENSE COUNSEL]: Well, again, because we have a discovery order and given the fact that Draeger and the State have been working hand in hand, at least apparently through Chun, it's only recently that Draeger has been digging and digging its heels in. I mean, when I say recently, the last several months, that they're not providing the State with that information that they need to provide discovery.
THE COURT: Yes.
[DEFENSE COUNSEL]: It's not like Draeger is a complete stranger to the Alcotest litigation. They in fact were a party that submitted themselves directly to the jurisdiction of the courts of the State of New Jersey.
THE COURT: Okay.
[DEFENSE COUNSEL]: And that's why I've always taken a position that if we're going to be talking about repair records, since Draeger as the vendor and the State is the vendee, have a relationship whereby these records should be able to be obtained, I've relied on the discovery orders to get those. Whether it's a subpoena for discovery order, it's still a direction from the [c]ourt that should be complied with.
Now, if you want to put the burden on the defense to directly subpoena Draeger, I'll do that. I thank . . . the [p]rosecution for their offer of providing me with the address that supposedly is the one you direct these things to to get an actual response, as [opposed] to say the registered agent in Stanhope or the company. I don't know what the address is they have.
[PROSECUTOR]: It's (inaudible) Tavern Road, I think.
[DEFENSE COUNSEL]: Well, I'll get that from the [p]rosecutor. And I'll get the subpoena out forthwith, you know, probably in the next few days I'm hoping to have it served.
THE COURT: Okay.
[PROSECUTOR]: Your Honor, this order was signed some time ago. If the [c]ourt can inquire as to whether this order, as counsel is saying, was served upon Draeger. The State has certainly complied with it.
THE COURT: Yes, I know.
[PROSECUTOR]: It would appear that not only has the subpoena not gone out to Draeger, this order wasn't served upon Draeger by counsel either.
THE COURT: I understand what you're saying. I understand what you're saying, Prosecutor. Yes, you probably should have discussed this earlier, if you were looking for the repair records and you didn't receive what you were looking for, you probably should have sent out something earlier or at least brought our attention to it so that we could aid you in sending it out.
[DEFENSE COUNSEL]: Well, I mean, did the State - -
THE COURT: But now we are where we are.
[DEFENSE COUNSEL]: I'm just wondering if the State sent the order out to Draeger? Like I said, they're the ones that have the burden.
THE COURT: They have the - - they are not under any obligation to provide you with anything other than what they provided you with. So, we are where we are right now. Okay? So we're trying to decide how to proceed from here. Okay. I'm willing to give you another few weeks in order to resolve all the issues. Okay. As long as we have a trial date set by the end of the month. Okay?

On September 27, 2011, Judge Shanahan conducted another status conference during which defense counsel advised the court that it had served a subpoena upon Draeger, returnable for September 27, requesting that Draeger appear with the records. The State argued at that time that the records sought were irrelevant since "any and all repair records that he is seeking don't cover a time remotely close to the time when this defendant was tested." Defense counsel urged that it was difficult to "show[] . . . relevance or irrelevance when, number one, you don't have repair records and then we're missing calibration data. They kind of go hand in hand. And all of this information is discoverable as I read Chun." The court permitted the parties to engage in further briefing and scheduled the hearing on defendant's reconsideration motion for October 13, 2011.

At the October 13 hearing, defense counsel reported to the court that he received a response from Draeger that it had no intention of appearing at the hearing in accordance with the subpoena ad testificandum/duces tecum dated September 30, 2011 because the records and personnel who performed the testing on the Aloctest 7110 MK3C device were located in Texas and also because it had already provided the repair records to a municipal prosecutor named Thomas Downs. The prosecutor then explained to the court that Thomas Downs was a municipal prosecutor in another jurisdiction, and in order to expedite the matter, he volunteered to get the records for defense counsel.

When the parties returned to court on October 27, 2011, defense counsel explained to the court that following the last conference, he "noticed there was a lot of other records related there, like the packing slips and the State Police forms and[, ] you know, I think in fairness to everyone, we should probably get a complete record of what those forms are[.]" Defense counsel further explained that he did not want an incomplete record to present to the court before proceeding. Judge Shanahan responded that the materials in question were not, in her view, essential in order to put through defendant's conditional plea, but instead were required for defendant's appeal. She promised that any supplemental submissions would be included in the appeal. Based upon that understanding, defendant entered his conditional plea.

When the matter was presented before the Law Division, Judge Rock off initially and mistakenly believed that the repair records had been provided. Once he realized that the repair records had never been provided, the judge queried whether defense counsel requested the record "from anybody since the time of October the 13th, 2011." Defense counsel responded that he had not made such a request and suggested that the matter be remanded, "since it is available, it should be provided." In response, the prosecutor acknowledged that he had believed, albeit mistakenly, that the repair records had been provided. The prosecutor explained that upon reviewing the "repair records from the Chun case . . . as an exemplar of what repair records are supposed to be like[, ]" he now realized that defense counsel was referencing different records. Nonetheless, the prosecutor argued:

In this particular case, the . . . packaging slips themselves don't reveal a whole lot about the . . . changes that were made to the machines. But, if you look at the accompanying documents, which are called Breath Testing Instrumentation Service Reports, which look to be compiled by the New Jersey State Police, the reason that the particular Alcotest® instrument was sent to Dräger, is listed in those particular documents.
Now, the . . . repair records themselves, and how the machine was fixed, are not as extensive as they were in the discover[y] provided in the Chun case. But, if Your Honor does look, there are return forms that are also given to . . . the State Police and which were - - seemed to be, turned over in discovery[, w]hich were signed off on by a . . . servicing technician[, ] and it described the . . . repairs that were made.
If there were any problems with the machine, seemingly, if an expert or if anyone else were to look at the packaging slips and the documentation that was provided, it would probably, at least, give someone a . . . heads-up as to what changes were made to the machine and whether those particular changes would prompt some sort of continuing error with the machine.
The mere fact that every single document wasn't turned over - - and I still don't know what is in [the] possession of . . . Prosecutor Downs, because I had assumed that . . . these were documents that were in the possession of Prosecutor Downs.
As Your Honor indicated, those documents were just as readily available at that point in time to defense counsel as they were to the State. And I . . . can understand why [defense counsel] didn't . . . take an opportunity to obtain those documents from Prosecutor Downs at the time that this case was pending, between the October 13th hearing and the October 27th hearing.

Addressing the State's failure to turn over the actual repair records, the Law Division judge found:

If the defense had felt it was so relevant, and so material, and so prejudicial, not to have those records, it is amazing - - it is incredulous that the defense would not have had those records today to argue . . . whether or not there was any significance in these repair records that would make a difference in the outcome of the State versus Lobo matter in the [c]ourt below.
Further, since these documents are not relevant to the [c]ourt's assessment of the admissibility of the Alcotest®, the [c]ourt finds that the defendant is not prejudiced by the . . . piecemeal fashion in which these records were, finally, transmitted - -not through subpoena, but through . . . the auspices of this private company, Dräger, that ultimately . . . brought them into the possession of a [m]unicipal [p]rosecutor, who is not a party to the State versus Lobo case.
As can be seen in the exhibits that are multiple repair records and the packing slips which . . . were turned over, there are multiple records from prior repair cycles. Those prior repair cycles - - even if repairs had been made - - don't a fortiori make the Alcotest® machine used to capture the .13 breath alcohol content of Mr. Lobo, suspect.
There has to be a showing that there is some nexus - - there is some connection with the prior repair records and the inoperability of the . . . machine to appropriately satisfy the . . . test of scientific reliability. There is none in this case. There is no prejudice to the defense as a result of the failure to leave those prior records from prior repair cycles.
Since these records, again are not necessary for the admissibility of the Alcotest® and Chun - - and the Chun decision only recommends, not mandates, that the State create the protocol, this [c]ourt cannot find that under current law a discover[y] violation was perpetrated by the State.

Defendant's reliance on State v. Tull, 234 N.J.Super. 486, 500 (Law Div. 1989), for the proposition that a DWI defendant is entitled to all relevant materials within the prosecutor's reach, even if not in his custody, is misplaced. As we recently held, the Tull standard was abandoned in Ford because it created a "'broad definition that is impractical in the context of quasi-criminal drunk driving cases, ' and because 'allowing [such] 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.'" Carrero, supra, 428 N.J.Super. at 507 (quoting Ford, supra, 240 N.J.Super. at 49) (internal citations omitted).

As the State noted in its argument before the Law Division judge, the repair records in the State's possession and control, the Breath Testing Instrumentation Service Reports, explain why the particular Alcotest instrument was sent to Draeger, and the return forms described the repairs made. It is undisputed that defendant retained an expert to review these documents. The defense proffered no report pointing to any defects in the operability of the Alcotest machine based upon these documents, nor any certification from the expert explaining that his ability to undertake a meaningful review of the machine's operability for the relevant time period could not be accomplished without the actual repair records.

The record also reveals defense counsel's acknowledgement that securing records from Draeger had "become an issue of contention lately." He specifically noted to the municipal judge that Draeger had been "digging and digging its heels in" with regard to discovery request.

The State's obligation to provide discovery in criminal proceedings is set forth in Rule 7:7-7 and requires production of documents, including copies of scientific tests or experiments made in connection with the matter "that are in the custody or control of the prosecuting attorney." Because defense counsel knew, by his own admission, for several months preceding the September 15, 2011 hearing that the actual repair records were in the possession and control of Draeger, not the State, the State had no obligation to produce these records. However, that does not end the discussion.

At the September 29, 2011 hearing, the prosecutor appearing at that time volunteered to obtain the actual repair records which Draeger had provided to a municipal prosecutor in another jurisdiction in connection with an unrelated matter. Those documents had not been provided by the time the parties returned to court two weeks later on October 13, 2011, and there is no discussion on the record as to the status of the prosecutor's attempt, if any, to secure the actual repair records as previously represented. Nor is there any indication in the record that defense counsel followed up with the prosecutor regarding the outstanding data. Because the prosecutor volunteered to secure the discovery from the other prosecutor in possession of the records, it is understandable that defense counsel deferred to the State as of September 27, 2011. However, thereafter, when the records still had not been received, defense counsel should have followed up in order to determine whether the non-production was an oversight or due to some other reason. This follow-up by defense counsel was especially warranted given the judge's ruling that the State was not under any obligation to produce records in the possession and control of Draeger. Failing to do so did not justify the extreme remedy of dismissal of the charge or exclusion of the Alcotest.

While we agree, as defense counsel contends, that the defense is under no obligation to assist the State in meeting its burden of proof, we are satisfied that the repair records produced complied with the Court's recommendation in Chun that the State maintain repair logs and establish a protocol for maintaining such record. Moreover, these actual repair records do not constitute core foundational records under Chun, supra, 194 N.J. at 145. Therefore, neither the municipal judge nor the Law Division judge erred in denying defendant's motion to dismiss the charge based upon the State's failure to produce the actual repair records in the possession and control of Draeger.

III.

Defendant contends that the passage of less than two minutes between various parts of the calibration control tests and solution change functions, as well as between control tests and breath tests, commonly referred to as the two-minute lockout period, raises a question about the operability of the particular Alcotest instrument used in defendant's case. The State responds that there was no two-minute lockout violation between defendant's first and second breath samples, the only function for which the two-minute lockout period is required for quality assurance purposes. The municipal court and the Law Division judges similarly found that since Chun did not impose a two-minute lockout period between the calibration control and solution change functions, having a shorter interval between these functions does not offend the Chun requirements or suggest the Alcotest device was defective.

Chun only requires a two-minute lockout period between the collection of breath samples. See Chun, supra, 194 N.J. At 81. There is no mention of a lockout period in connection with other functions associated with the Alcotest testing device. See id. at 80 n.13, 83-84. Here, it is clear from the record that the breath samples were collected more than two minutes apart. The first breath sample was collected at 01:43 a.m. and the second at 01:47 a.m. Therefore, defendant's argument on this point lacks merit.

IV.

Defendant additionally contends his Alcotest results should have been excluded because he did not receive a copy of his AIR at the time of his release from custody. Defendant argues that Chun requires this practice as a condition precedent to the admissibility of an AIR because the court-appointed special master and the Supreme Court viewed the Alcotest's non-operator-dependent format, especially its automatic production of an AIR, as insurance against falsification of BAC records - a problem that plagued the old Breathalyzer. Moreover, defendant argues that had he been provided with the AIR as required, it would have enabled him to undertake a timely independent BAC testing as provided under N.J.S.A. 39:4-50.2(c). This contention is equally without merit.

There was nothing to prevent defendant from obtaining an independent test. Moreover, defendant need not obtain a copy of his AIR in advance of submitting to the independent test.

V.

Defendant contends the Alcotest reading in this case should be ruled inadmissible due to the use of a Control Company Inc. digital thermometer rather than the Ertco-Hart brand digital thermometer referenced by the New Jersey Supreme Court in Chun, supra, 194 N.J. at 89. In addition, he claims the use of another manufacturer's thermometer does not comply with N.J.A.C. 13:51-3.2 and therefore invalidates the Alcotest results. We have expressly rejected this argument in Holland I, supra, 422 at 197.

VI.

Finally, defendant contends he was denied his right to a trial by a jury of his peers. It is well-settled in this jurisdiction that a defendant charged with a violation of N.J.S.A. 39:4-50 and other Title 39 offenses 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); see also Blanton v. North Las Vegas, 489 U.S. 538, 543-44, 109 S.Ct. 1289, 1293, 103 L.Ed.2d 550, 556 (1989); State v. Graff, 121 N.J. 131, 135 (1990).

Affirmed The stay of penalties is vacated


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