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Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
Latest posts by Rick DeMichele (see all)
Defendants Must Demonstrate a Need for Discovery in DWI Cases
Regular readers of our blog know we offer our analysis of judicial decisions that impact DWI law in New Jersey. (See N.J. Supreme Court Resolves Whether Prior DWI Can Enhance Refusal Penalties and Driver Charged with DWI Challenges Constitutionality of Drunk Driving Laws).
Last month the New Jersey Appellate Division approved the decision in State v Scott Robertson for publication. This case has a profound impact on the availability of discovery to defendants who are charged with driving while intoxicated. It also carries implications for those defendants who were convicted of driving while intoxicated and who are seeking a stay of the penalty while the case is reviewed by an appellate court on appeal.
The defendant in this case hired an attorney who sought “extensive discovery” for his case. The discovery request included repair records for the Alcotest that was used to measure the defendant’s blood-alcohol content and the data downloads of various diagnostic tests for the Alcotest. The State failed to provide some of the repair records when the Alcotest was returned to the manufacturer for repairs. The repairs included replacement of the fuel-cell and calibration of the Alcotest.
The defendant hired an expert to testify at the time of trial and the expert opined that the repair records and the data from the repair completed by the manufacturer were essential to determining whether the machine was operating properly and could accurately measure the defendant’s blood-alcohol content.
The state also failed to provide the data download for the diagnostic tests when the Alcotest was being repaired. Again, the defendant’s expert opined that the state could not demonstrate beyond a reasonable doubt that the Alcotest was operating correctly on the day in question because the state could not produce the data download for the diagnostic tests.
The Municipal Court trial judge ultimately rejected the defense argument that the blood-alcohol reading should be excluded from evidence. That finding was upheld at the Superior Court level and ultimately the case was appealed to the New Jersey Appellate Division. The Appellate Division Court affirmed the DWI conviction. The court reasoned that the State had provided the foundational documents as outlined in State v Chun to the defendant. The court recognized that the defendant requested additional discovery to defend the charges against. However the court relying on Chun, recognized,
“… [a] defendant may conduct further discovery if these documents raise questions about the devices working order. ‘[I]n the event that any defendant perceives of any regularity in any of these documents that may affect the proper operation of the document in question, timely issuance of a subpoena will suffice for purposes of protecting that defendant’s rights’”In essence, the defense is not entitled to discovery outside the “standard DWI discovery” unless the defendant can articulate a reasonable basis to believe that the requested discovery will assist in the defendant’s defense. Specifically, “[a] defendant is not entitled to information that ‘merely could lead to other information that is relevant.’” Another noteworthy aspect of this case is the court’s discussion of the standard to obtain a stay pending appeal despite the fact that neither party had raised it as part of their appeal. The Appellate Division expressed concern that both the Municipal Court and the Law Division stayed the defendant’s license suspension pending the appeal without providing any statement of reasons. The Appellate Division decision reiterates the three-part standard for which a stay should be granted:
“A party seeking a stay must demonstrate that (1) relief is needed to prevent irreparable harm; (2) the applicant’s claim rests on settled law and a reasonable probability of succeeding on the merits; and (3) balancing the ‘relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were’.”Merely requesting a stay based on a legal argument that had been rejected by other courts will not satisfy the reasonable probability standard. The Appellate Division Court pointed out that the defense failed to articulate the reasonable likelihood of success on the merits of the appeal and that both the Municipal Court and the Superior Court did not require a demonstration of the reasonable merit of the argument for granting a stay. The court went on to further point out that the defendant did not set forth any alleged harms that he would suffer without a stay. The court went on to suggest that had the defendant certified that the loss of his driving privilege would significantly interfere with his ability to maintain employment and a stay was otherwise warranted, the court could consider conditioning the state by limiting the defendant striving to that that was required by his employment. The court may also condition the issuance of a stay upon the verified installation of an ignition interlock device. New Jersey does not have conditional license which allows someone who is convicted of DWI to drive for employment. While there has been legislation proposed to allow the use of an interlock device as opposed to a loss of driving privilege, our current law mandates a loss of driving privilege. The suggestion by the court that the use of an ignition interlock device may be an appropriate condition of the stay is new and novel in this area of law. A defendant who may request a stay of the loss of the driving privilege while their conviction is being heard on appeal must also consider the possibility that if the conviction is upheld, then they will have to serve the loss of driving privilege sentence after they used the ignition interlock device during the stay of the conviction. Said another way, after many months to a year of paying for and using an ignition interlock device, if the conviction is upheld, they will have to serve an additional license suspension. If you or a loved one needs strong representation in a municipal court in New Jersey, contact the DWI defense lawyers at DeMichele & DeMichele today. We are here to defend the charges against you. Contact us now for your confidential and free initial consultation. You can also reach us by telephone (856) 546-1350. Don’t just plead guilty and risk your driving privilege or driving record.
The following two tabs change content below.
Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.
Latest posts by Rick DeMichele (see all)
