December 1, 2012

L.A. VS. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, ET AL. A-2726-11T1


L.A. VS. NEW JERSEY DIVISION OF YOUTH AND FAMILY
SERVICES, ET AL.
A-2726-11T1
This case required us to define the standard of care
applicable to a physician treating a child in the context of the
physician's duty to report child abuse to the Division of Child
Protection and Permanency, formerly known as the Division of
Youth and Family Services. The parties agreed that the standard
of care is embodied in N.J.S.A. 9:6-8.10, which requires
reporting by "[a]ny person having reasonable cause to believe
that a child has been subjected to child abuse."
For reasons explained in the opinion, we concluded that "a
physician has 'reasonable cause to believe' that there has been
abuse if a 'probable inference' from the medical and factual
information available to the physician is that the child's
condition is the result of child abuse, including 'reckless' or
'grossly or wantonly negligent' conduct or inaction by a parent
or caregiver. The inference need not be the 'most probable,'
but it must be more than speculation or suspicion."
STATE OF NEW JERSEY VS. NICQUAN D. SCOTT

A-4633-10T1
We focused on the mens rea needed to convict defendant of
second-degree possessing, receiving, or transferring a community
gun, N.J.S.A. 2C:39-4a(2), and analyzed whether the State must
prove that defendant knew the firearm was a community gun. We
held that defendant's knowledge of the communal character of a
firearm is not an element of the statute. 11-08-12 

Mandatory 180 jail for DWI related driving while suspended even if DWI was prior to 2010. State v Carrigan __ NJ Super. ___ (App. Div. 2012) A-3751-11T1


Mandatory 180 jail for DWI related driving while suspended even if DWI was prior to 2010. State v Carrigan __ NJ Super. ___ (App. Div. 2012)
A-3751-11T1
     N.J.S.A. 2C:40-26(b), which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver's license is suspended or revoked for a second or subsequent conviction for driving while intoxicated ("DWI") or refusal to submit to an alcohol breath test. Defendant was charged with that crime, upon being found driving a car in September 2011 while his license was suspended due to multiple prior DWI offenses.
     The trial court dismissed the complaint, concluding that the application of N.J.S.A. 2C:40-26(b) to defendant violated ex post facto principles, essentially because his ongoing license suspensions had been imposed before the statute's effective date.
    The Appellate Division reversed and concluded that a violation of N.J.S.A. 2C:40- 26(b) comprises a new offense based upon new conduct, and that the statute does not impose retrospective punishment for a prior offense. Hence, the law may be constitutionally applied to drivers with suspended licenses, such as defendant, who are caught driving after August 1, 2011, regardless of whether their DWI-based suspensions were imposed before that date. 11-15-12

J.D. VS. M.A.D. A-2229-11T4



 J.D. VS. M.A.D.
A-2229-11T4
We review a wife's appeal of that portion of a domestic
violence final restraining order entered against her husband,
granting him exclusive possession of their marital home and
temporary custody of their two children. Because that order
denied the victim of domestic violence temporary custody of her
children, contrary to the statutory presumption contained in
N.J.S.A. 2C:25-29b(11), and restrained her from her home without
statutory authorization, we reverse.

State v. Stanley Cliff Smith, a/k/a Jerry Johnson (A-68-10; 066806)


State v. Stanley Cliff Smith, a/k/a
Jerry Johnson (A-68-10; 066806)
The question of suppression of the telephone records
and the evidence developed from those records involves
a two-step analysis, involving both the inevitable
discovery doctrine and the independent source rule.
The independent source here is the murder weapon once
that was recovered, the police would, through their
normal investigatory steps, have inevitably been led
to defendant. The Appellate Division concluded
correctly that the trial court should not have granted
the motion to suppress. In addition, the Court finds
no prosecutorial misconduct warranting a new trial. 10-25-12  

State v. Joseph Schubert, Jr. (A-15-11; 068149)


State v. Joseph Schubert, Jr. (A-15-11; 068149)
The trial court’s action in amending defendant’s
judgment of conviction to add community supervision
for life after had had fully completed his sentence
violated the constitutional prohibition against double
jeopardy. 10-22-12 

No automatic right for DWI defendant to inspect inside of police station State v Carrero State v Baluski



No automatic right for DWI defendant to inspect inside of police station State v Carrero
State v Baluski  
A-3232-11T3/ A-4319-11T3 (CONSOLIDATED) 
The court reviewed discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered.

In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required twenty minutes before testing.
The court reversed the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection.

The court concluded that Carrero's request is insufficient in light of the Supreme Court's binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), that the Alcotest is designed in a manner that is " "well shielded from the impact of any potential RFI," and also in light of the State's countervailing security interests disfavoring routine civilian access to the interior of a police station.
The court concluded that Baluski's request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the twenty pre-testing minutes required by Chun, supra, 194 N.J. at 79, and also in light of the State's countervailing security interests.

October 23, 2012

No automatic right for DWI defendant to inspect inside of police station State v Carrero State v Baluski A-3232-11T3/ A-4319-11T3



DOCKET NO. A-3232-11T3
A-4319-11T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL CARRERO,
Defendant-Respondent.
_________________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ANDRES F. BALUSKI,
Defendant-Respondent.
_________________________________
Argued September 10, 2012 - Decided
Before Judges Parrillo, Sabatino and
Fasciale.
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.
Robyn B. Mitchell, Deputy Attorney General,
argued the cause for appellant (Jeffrey S.
Chiesa, Attorney General, attorney; Ms.
Mitchell, of counsel and on the brief).
APPROVED FOR PUBLICATION
October 23, 2012
APPELLATE DIVISION
October 23, 2012
2 A-3232-11T3
Samuel Louis Sachs argued the cause for
respondent Michael Carrero in A-3232-11 (Law
Offices of Samuel Louis Sachs, attorney;
Lauren E. Scardella, of counsel and on the
brief).
Steven W. Hernandez argued the cause for
respondent Andres F. Baluski in A-4319-11.
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.
3 A-3232-11T3
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:
4 A-3232-11T3
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
5 A-3232-11T3
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.1
Baluski
On June 18, 2011, Andres F. Baluski, defendant in A-4319-
11, was charged in Stafford Township by the State Police with
1 The record in Carrero does not reflect that a stay of the
court-ordered inspection was issued. However, the parties
acknowledged at oral argument before us that the inspection has
not occurred, pending this court's decision.
6 A-3232-11T3
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 has been mandated by the Supreme Court in State v.
Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S. Ct.
158, 172 L. Ed. 2d 41 (2008).
The municipal judge in Stafford Township denied Baluski's
inspection request. In doing so, the municipal judge
acknowledged that he had allowed such interior photographs to be
taken by the defense in some past cases, but expressed
misgivings that those defense photographs had typically been
taken in such a way so as to not depict "what is actually in the
room."
7 A-3232-11T3
Baluski's attorney moved before the Law Division for leave
to appeal the inspection denial. The application was heard,
coincidentally, by the same Law Division judge in Ocean County
who had previously ruled on the discovery request in Carrero.
The State opposed the application, contending that the
inspection is unwarranted, among other things, because defense
counsel can explore the officer's post-arrest observations of
Baluski by simply questioning the officer. The State also
raised security considerations.
Following oral argument, the Law Division judge once again
concluded that the requested inspection of the police station
was justified. The judge found that the physical layout of the
testing room was at the heart of Baluski's anticipated defense
contesting the Alcotest results. The judge stopped short of
declaring that all DWI defendants with adverse Alcotest readings
are entitled to such an inspection, but found the request was a
reasonable one in Baluski's case. The judge also found that
inspecting the room is not invasive, nor does it impose hardship
or inconvenience upon the State. He also noted that the State's
security concerns are "easily remedied" because a trooper can
escort defense counsel or a defense expert into the room to
ensure that there are not any security breaches.
8 A-3232-11T3
The Law Division judge accordingly issued an order on March
13, 2012, stating that Baluski and his counsel were entitled to
a "brief visual inspection of the Bass River Alcotest 7110 . . .
under the supervision and reasonable conditions of the Bass
River law enforcement personnel." The Law Division judge
further ordered that defendant's representatives may inspect and
photograph the room in which the Alcotest machine was stored on
June 18, 2011. The following day, the judge granted a motion by
the State to stay his order, pending the State's pursuit of
interlocutory review in this court. We subsequently granted the
State leave to appeal, ordering that the matter be calendared in
tandem with the State's appeal in Carrero.
II.
A.
The Alcotest 7110 MKIII-C is widely used in New Jersey to
test the BAC of persons who have allegedly violated N.J.S.A.
39:4-50. Chun, supra, 194 N.J. at 65. As the Supreme Court in
Chun noted in sustaining, subject to certain conditions, the
reliability of the device and the admissibility of the generated
results, the Alcotest measures the amount of alcohol present in
a person's breath as an indirect measure of the amount of
alcohol present in the person's blood. Id. at 78. It uses both
infrared ("IR") and electric chemical ("EC") oxidation in a fuel
9 A-3232-11T3
cell to measure the concentration of alcohol in the person's
breath. Ibid. For each breath sample, the Alcotest therefore
produces two measurements. Ibid. The Alcotest issues the IR
and EC measurements on a printout from the machine, referred to
as the Alcohol Influence Report ("AIR"). Id. at 79.
The Alcotest is different from a "breathalyzer" device,
which was widely used in this State before the Alcotest. Id. at
74-75. One advantage of the Alcotest over a breathalyzer is
that the Alcotest is not "operator-dependent" because it uses a
computerized program and a series of visual prompts that direct
the operator through the analysis. Id. at 79. For example, the
Alcotest's programming requires the operator to wait twenty
minutes before administering the test. Ibid. The operator is
required to observe the test subject during that twenty minute
waiting period so as to be sure that the subject does not ingest
anything, regurgitate anything, or chew gum or tobacco, all of
which could taint the testing results. Ibid. If the test
subject does any of these things, the operator must restart the
observation period. Ibid.
The Alcotest applies a series of automatic calibration
tests designed to ensure that the device is working properly and
that it is accurately measuring the concentration of alcohol.
Id. at 80. If the device is properly calibrated, it will prompt
10 A-3232-11T3
the operator to collect a breath sample. Ibid. The device then
will automatically carry out a process to ensure that each
breath sample is taken without contamination from other samples.
Id. at 80-81. This process includes purging air from the test
chamber multiple times and excluding a new breath sample for a
two-minute period. Ibid.
After the testing is complete, the Alcotest will print a
detailed list of results on the AIR. Id. at 82. The operator
retains the printout and gives a copy to the test subject.
Ibid. If there are errors in testing, the AIR will indicate the
errors and their cause. Ibid. If the results are within an
acceptable tolerance, the AIR will show the subject's BAC for
each IR and EC reading for each test. Id. at 83. The Alcotest
truncates the reading to two decimal places, so as to
underreport the concentration reading to the benefit of the test
subject. Ibid.
Upon an extensive discussion of the Alcotest's operation
and functionality and the detailed findings of a Special Master,
Judge Michael Patrick King, following months of hearings, the
Supreme Court concluded in Chun that the Alcotest provides a
scientifically reliable measure of a test subject's BAC. Id. at
65. The Court imposed certain conditions upon that holding in
11 A-3232-11T3
Chun, which we shall address in more detail with respect to each
defendant's claims for discovery.
B.
We next turn to the general discovery principles applicable
in municipal and DWI prosecutions.
Pursuant to Rule 7:7-7(b), "[i]n all cases the defendant .
. . shall be allowed to inspect, copy, and photograph or to be
provided with copies of any relevant: . . . (6) . . . tangible
objects, buildings or places that are within the possession,
custody or control of the government . . . ." Rule 7:7-7,
because it falls under Part VII of the Rules of Court, applies
to prosecutions in municipal court, as here. R. 7:1.
The text of Rule 7:7-7 closely mirrors the text of Rule
3:13-3(a), which pertains to pre-indictment discovery in Law
Division matters. Rule 3:13-3(a) states that "the prosecutor
shall upon request permit defense counsel to inspect and copy or
photograph any relevant material which would be discoverable
following an indictment pursuant to section (b) or (c)." By
analogy, related cases addressing the scope and applicability of
Rule 3:13-3(a) are germane to the application of Rule 7:7-7.
See, e.g., State v. Ford, 240 N.J. Super. 44, 48 (App. Div.
1990) (citing Rule 3:13-3 in a discussion of the scope of
discovery in a municipal court prosecution for DWI); see also
12 A-3232-11T3
State v. Maricic, 417 N.J. Super. 280, 283-84 (App. Div. 2010)
(referencing Ford and noting that Rules 3:13-3(b) and 7:7-7 are
substantially similar).
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. In State v. Tull, 234 N.J.
Super. 486, 499-500 (Law Div. 1989) (citing former Evid. R.
1(2), now codified as N.J.R.E. 401), the trial court found that
the appropriate definition of "relevant" to govern discovery in
a DWI proceeding was the one given in the Rules of Evidence:
"evidence having any tendency in reason to prove any material
fact." This court subsequently rejected the Tull standard in
Ford, supra, because it was 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.'" Ford, supra, 240 N.J. Super. at 49
(quoting State v. Laurick, 231 N.J. Super. 464, 473 (App. Div.
1989), rev'd, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct.
429, 430, 112 L. Ed. 2d 413 (1990)).
Therefore, an accused's right to discovery in a DWI
prosecution is limited to items as to which "there is a
13 A-3232-11T3
reasonable basis to believe will assist a defendant's defense."
Ibid. A DWI defendant cannot require the court to compel the
State to reveal information which merely could lead to other
information that is relevant. Maricic, supra, 417 N.J. Super.
at 284; 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.
However, at least with respect to certain classes of
information, a DWI defendant need not have actual knowledge of
the facts supporting the contentions that underlie his discovery
requests. Ford, supra, 240 N.J. Super. at 49. For example, we
ruled in Ford that a DWI defendant was entitled to discovery
respecting the procedures that were used in administering a
breathalyzer test, even if the defendant did not personally
realize that flawed procedures had been used. Ibid. Such
information included "the conditions under which the tests were
held, the machine operator's competence, the particular
machine's state of repair and identification and documentation
of the ampoules used for [the] defendant's tests . . . ." Id.
at 51.
14 A-3232-11T3
We therefore held in Ford that the State ordinarily must
provide the defense with "full identification of the instrument
used, the date it was first placed in service by the State, the
type of instrument used, including the manufacturer, model
number and results of the coordinator's testing of the
instrument for approximately one year to include the next
testing after [the] defendant's tests,." Id. at 52.
Additionally, the State must provide "the time of administration
of the tests and the results and all reports and relevant
documents signed by [the] defendant or pertaining to his
condition of sobriety including blood and urine tests . . . ."
Ibid. We treated such requested discovery as relevant and
obtainable because it "'(1) concerns an issue involved in the
prosecution, and (2) tends, reasonably, to prove a fact material
to such an issue.'" Id. at 49 (quoting Tull, supra, 234 N.J.
Super. at 499). On the other hand, we held in Ford that the
State should not be routinely required to produce manuals for
the instrument, its entire repair record, or other related
documents dating back more than twelve months. Id. at 51-52.
The Supreme Court in Chun adopted a similarly circumscribed
approach to discovery with respect to the Alcotest, ruling that
DWI defendants are generally entitled to certain "foundational
15 A-3232-11T3
documents," but not delineating an automatic right to other
discovery for every Alcotest-based case. Chun, 194 N.J. at 145.
C.
Consistent with these distinctive principles of relevancy
applicable in the DWI context, each defendant before us must
demonstrate that the stationhouse inspection that he seeks is
reasonable and relevant to a material issue to his prosecution.
For the reasons that follow, we conclude that neither defendant
has met that burden, and that the Law Division judge erred in
granting their respective discovery requests. We address each
case individually.
Carrero
As we have already noted, Carrero wishes to inspect and
photograph the Toms River police station to check for potential
sources of electromagnetic interference ("EMI") and radio
frequency interference ("RFI").2 Not only does he want to
inspect the room in which he was tested, but he also wants
access to adjoining and nearby rooms within about 100 feet of
the testing room. He contends that such discovery bears on the
accuracy and reliability of the Alcotest reading that the State
2 RFI and EMI are "subsets of electromagnetic compatibility."
State v. Chun, No. 58,879, 2007 N.J. LEXIS 39, at *63 (Feb. 13,
2007) (Special Master's Report). We will treat the terms as
synonymous for the discrete discovery issues before us.
16 A-3232-11T3
will use against him at trial. The basis for this request,
however, has been negated by the Court's analysis in Chun,
supra.
The Court explicitly declared in Chun that "there is ample
support for the finding that the Alcotest is well-shielded from
the impact of any potential RFI that might otherwise affect the
reported results or limit our confidence in the accuracy of the
test results." Chun, supra, 194 N.J. at 89. Judge King, the
author of the Special Master's Report ultimately relied upon by
the Court, noted that the Alcotest uses a five-layer motherboard
and a carrying-case shield to suppress RFI. Chun, supra, 2007
N.J. LEXIS 39, at *279. Additionally, Judge King noted that the
Alcotest's casing has passed various tests for interference.
Id. at *280.
Carrero argues that, although the Alcotest is well-shielded
against RFI, the Court's opinion in Chun does not expressly
state that the Alcotest is completely impervious to RFI. This
is a flawed reading of Chun. The Court's opinion plainly
indicates that even if RFI is present that might affect the
Alcotest's results without shielding, the Alcotest's shielding
sufficiently guards against such interference. See Chun, supra,
194 N.J. at 89. Accordingly, even if sources of RFI happened to
be found in the testing area at the Toms River police station
17 A-3232-11T3
where Carrero's blood-alcohol level was tested, those sources
would not suffice to call into reasonable question the accuracy
or validity of the Alcotest results for the purpose of a DWI
prosecution.
This conclusion is also borne out by the Special Master's
Report. We must bear in mind that Judge King considered the
testimony of thirteen experts on a variety of aspects of the
Alcotest when issuing his report. Chun, supra, 2007 N.J. LEXIS
39, at *2. Based on the evidence before him, Judge King
unambiguously concluded, among other things, that the Alcotest
is "well-shielded" against electronic interference, and the
Supreme Court adopted that determination. Chun, supra, 194 N.J.
at 89; Chun, supra, 2007 N.J. LEXIS 39, at *279.
After a discussion of the various protections that the
Alcotest's design offers against RFI, cited infra, Judge King
wrote, "[i]n order to further avoid potential interference," the
policy promulgated to all state and local police departments
dictates that possible sources of RFI be banned from areas
surrounding the Alcotest machines. Ibid. (emphasis added).
That policy, which the Court adopted, Chun, supra, 194 N.J. at
80, only represents an added precaution. The Court did not
state in Chun that adherence to such a policy was strictly
necessary to prevent RFI from tainting a test result.
18 A-3232-11T3
Carrero insists that the removal of all possible sources of
RFI within range of the testing area is scientifically
essential, and that a police department's failure to do so can
render the Alcotest results inadmissible. Whether or not that
proposition is true (or even debatable) as a matter of science,
it is not the principle that must now guide us as a matter of
law. The Court in Chun has already settled the legal and
evidentiary issue by unambiguously embracing the Special
Master's finding that the Alcotest is "well shielded" from RFI
interference. Id. at 89. In essence, Carrero is now attempting
to use this appeal to re-litigate the RFI interference issue
that was already addressed and resolved in Chun. We decline the
invitation to do so. See State v. Hill, 139 N.J. Super. 548,
551 (App. Div. 1976) (noting our limited role as an intermediate
appellate court and our obligation to adhere to the Supreme
Court's determinations).
In reviewing Judge King's findings, the Court concluded in
Chun that twelve so-called "foundational documents" must be
produced by the State in discovery to help substantiate that the
Alcotest machine used to determine the defendant's blood-alcohol
level produced a scientifically reliable measurement. Chun,
supra, 194 N.J. at 142-45. Notably, a document attesting that
the Alcotest operator had performed a search of the surrounding
19 A-3232-11T3
area for possible RFI sources is not included in that list,
although we recognize that the list of discoverable documents
identified in Chun is not necessarily all-encompassing. Cf.
Maricic, supra, 417 N.J. Super. at 288.
Moreover, Carrero's request to inspect the Toms River
police station for possible sources of RFI is unlikely to reveal
anything definitive about possible sources of RFI that may have
been located there on the day of his testing. Walkie talkies,
cell phones, radios, and other possible sources of RFI are all
portable instruments. What was present on the day of his
testing may well have been moved since that time. Conversely,
any possible sources of RFI that might now be found in a current
inspection of the police station could have been placed there
after the testing was conducted.
We appreciate Carrero's generic concern that individual
police departments may sometimes lapse in adhering to the
statewide policy to keep items that can emit RFI away from rooms
where the Alcotest is administered.3 Even so, we are satisfied
3 At oral argument, defense counsel anecdotally represented that
such items have been found at times within the prohibited area
in some police departments. However, such anecdotal information
is not in the record and, for the reasons that we have noted
stemming from the Supreme Court's decision in Chun and the
court's declaration that the Alcotest is "well shielded" from
RFI, it has no bearing on our analysis of Carrero's
circumstances.
20 A-3232-11T3
that the State has presented sufficient countervailing reasons
to overcome any claim that the requested inspection is
reasonable and will produce relevant evidence. The State has
valid security interests in discouraging routine access by
civilian visitors to the interior of police facilities. See
N.J.R.E. 515 (codifying a privilege from disclosure for official
information). It has been observed that a police station, as
well as a detention center or a jail holding cell, "is a place
'fraught with serious security dangers.'" Justice v. Peachtree
City, 961 F.2d 188, 193 (11th Cir. 1992) (quoting Bell v.
Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d
447, 481 (1979)). Although those security interests are not
absolute, they have not been outweighed in Carrero's case. He
has presented no case-specific basis, particularly given Chun's
rejection of the RFI claim and the State's security interests,
demonstrating that his inspection demand is reasonable.
For all of these reasons, we conclude that the municipal
court and the Law Division erred in granting the defense in
Carrero access to the Toms River police station. The Law
Division's order dated January 4, 2012 is therefore reversed,
and the municipal court's grant of this discovery vacated.
21 A-3232-11T3
Baluski
As we have already noted, the Supreme Court in Chun
instructed that the test subject must be continuously observed
for twenty minutes before the Alcotest is administered. Supra,
194 N.J. at 79. The purpose of this twenty-minute observational
period is to assure that the driver providing the breath samples
has not ingested anything, vomited, or otherwise had something
in his mouth or breath that could alter the Alcotest readings.
Ibid. The State must establish this condition by clear and
convincing evidence. State v. Ugrovics, 410 N.J. Super. 482,
489-90 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).
The observation may be conducted through non-visual as well as
visual means, so long as the observer is able to detect whether
the driver has ingested or regurgitated something that would
confound the Alcotest results. State v. Filson, 409 N.J. Super.
246, 258-61 (Law Div. 2009).
Baluski contends that he is entitled to inspect and
photograph the testing room at the State Police barracks in Bass
River in order to verify that the Alcotest operator was
physically able to observe him during the pre-test period.
There is no reasonable basis shown in this record to authorize
such an intrusion into the barracks.
22 A-3232-11T3
A defendant himself should know whether or not he put
something into his mouth, vomited, or otherwise whether
something else occurred to his oral cavity during the twentyminute
pre-test period. To be sure, a defendant may have been
inebriated at the time and thus impaired in his perceptions or
recollections, but that is precisely why the Alcotest is being
administered. A DWI defendant who was too impaired to
appreciate what was going on around him should not have any
greater right to discovery because of his degree of
intoxication. Notably, there is no assertion here by Baluski
that he recalls vomiting or ingesting anything during the pretest
period that the operator failed to observe.
In addition, the physical configuration of the testing room
has already been witnessed by defendant himself. Again, the
possibility that defendant was too impaired to see or recall
whether the officer was in his visual presence before the test
was administered is not a valid justification to give defendant
or his agents a second chance to observe the room. We recognize
that an arrested driver, even one who is sober or not
intoxicated above the legal limits, may be injured, upset,
confused, or frightened and that his ability to observe and
recall the layout of the testing room may be diminished for
benign reasons. Even so, that does not warrant allowing defense
23 A-3232-11T3
counsel to access the interior of a police barracks in every DWI
case as a matter of course. Instead, there must be a showing of
a particularized reasonable basis to justify the intrusion.
We thus hold that a DWI defendant is not entitled in
pretrial discovery to have his attorney or expert gain access to
the interior of the police barracks unless an affirmative
showing of reasonable need is demonstrated by such a defendant.
For example, if a defendant submits a certification or testifies
at a preliminary hearing asserting that no police officer was in
the testing room, or in a place where defendant could have been
observed, for the obligatory twenty pre-testing minutes, then
the court would have the discretion to order such an inspection.4
Likewise, if genuine doubt about the ability to have observed
the suspect is raised by the testimony of the operator or
another State witness who has attested to the observation, see
Ugrovics, supra, 410 N.J. Super. at 490, that also could provide
a specific reasonable justification for an inspection. Neither
of those showings has been made here.
Baluski has not affirmatively contended that an officer
failed to observe him for the requisite period of time. He has
4 In evaluating such a request, the court should consider whether
the physical layout of the police station changed from the time
of the administration of the Alcotest to the time of the
requested inspection.
24 A-3232-11T3
submitted no certification on this issue, and his counsel's
brief on appeal does not assert such a claim. At most, his
counsel alluded to the municipal judge that there were "some
questions" as to the ability of the police officer to observe
Baluski, and counsel later argued before the Law Division that
inspecting the area was thus necessary for a "good defense."
These vague assertions by counsel, even though we presume they
have been presented in good faith, without some affirmative
showing of proof, should not suffice as a basis for allowing the
requested barracks inspection. As it stands, the layout of the
area surrounding the Alcotest machine is not sufficiently
"relevant" under Rule 7:7-7 here because there is no reasonable
basis in this record to conclude that inspecting the area will
be important to his defense.5
Lastly, Baluski suggests that his constitutional rights to
confront the State's witnesses6 and to due process7 are infringed
5 We recognize that police departments have not been required to
film DWI defendants who are waiting to be tested on the
Alcotest, but the absence of such a taping requirement does not
automatically entitle a defendant to an inspection.
6 The Sixth Amendment provides criminal defendants with the right
"to be confronted with the witnesses" testifying against them.
U.S. Const. amend. VI; see also N.J. Const., art. I, ¶ 10.
Included in this right is the right, subject to certain
limitations, to cross-examine witnesses. Pointer v. Texas, 380
U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926
(1965); State v. Cabbell, 207 N.J. 311, 328 (2011).
25 A-3232-11T3
by denying him post-testing access to the police barracks. We
disagree. The right of confrontation does not carry with it an
unlimited right to conduct discovery, particularly if that
discovery is intrusive and lacks a reasonable justification.
See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.
Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986). We reject
defendant's contention that the Confrontation Clause guarantees
him a right of inspection of the barracks here, based upon mere
speculation that such an inspection might enable his counsel to
cross-examine the police officer more effectively about the
physical layout of the testing area and the officer's ability to
have observed Baluski.
Nor do we find that the inspection is mandated by the due
process principles expressed in Brady. To establish a Brady
violation, a defendant must prove that (1) the prosecutor failed
to disclose the evidence, (2) the evidence was of a favorable
character to the defendant, and (3) the evidence was material.
Mustaro, supra, 411 N.J. Super. at 101; State v. Parsons, 341
7 In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97,
10 L. Ed. 2d 215, 218 (1963), the United States Supreme Court
construed the Fifth Amendment due process right, and held that
"the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." See also State v.
Mustaro, 411 N.J. Super. 91, 101 (App. Div. 2009).
26 A-3232-11T3
N.J. Super. 448, 454-55 (App. Div. 2001). Evidence is
"material" only if there is a "reasonable probability" that the
disclosure of the evidence would have changed the result of the
proceeding. Mustaro, supra, 411 N.J. Super. at 101. A
"reasonable probability" is one sufficient to undermine
confidence in the outcome. Ibid. The Brady rule is thus
commonly invoked when information becomes known after trial
which, at the time of trial, was known by the State but not the
defendant. State v. Marshall, 123 N.J. 1, 199 (1991); State v.
Carter, 91 N.J. 86, 111 (1982) (quoting United States v. Agurs,
427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342, 349
(1976)).
Baluski relies on Giglio v. United States, 405 U.S. 150,
154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972), a case
applying the principles of Brady, for the proposition that when
the credibility of a witness may be determinative of guilt, the
nondisclosure of evidence that pertains to the witness's
credibility falls within the Brady rule. The Court in Giglio
further explained, however, that a Brady violation is not
present "whenever a combing of the prosecutors' files after the
trial has disclosed evidence possibly useful to the defense but
not likely to have changed the verdict." Ibid. (internal
27 A-3232-11T3
quotation marks omitted). Rather, a finding of materiality is
still necessary. Ibid.
Here, Baluski's own personal experience ⎯ having been in
the testing room himself ⎯ undermines his contentions of a Brady
violation in being denied a pre-trial inspection of the room by
his counsel or experts. Baluski was obviously in the room
before and when he was being tested. Under normal circumstances
he should know if he had been in a location where the officer
could have observed him, and he should have had some awareness
of the layout of the testing area. As we have already noted,
Baluski has not come forward with a showing of proof explaining
why he lacks such knowledge. Therefore, without some
affirmative showing to the contrary, he cannot reasonably claim
that there is material information known by the State which is
unknown by him and which is being unfairly withheld from his
counsel as a matter of due process.
To the extent that Baluski's invocation of the Fifth
Amendment might be read as implicitly invoking his
constitutional right against self-incrimination8 under that
provision, we conclude that this right also has not been
8 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966); State v. Stas, 212 N.J. 37, 51-59 (2012)
(applying Miranda principles in a New Jersey municipal court
proceeding).
28 A-3232-11T3
infringed. The fact that Baluski and the Alcotest operator may
have been the only persons in or near the testing area during
the twenty-minute pre-testing period is of no moment. It is
commonplace for a defendant and a police officer to be the only
persons present during a particular interaction, such as during
a street encounter, and there is no self-incrimination problem
with the situational reality that a defendant may need to
testify himself to gainsay the police officer's own narrative of
events.
III.
The respective orders authorizing the police station
inspections in both Carrero and Baluski are reversed, and the
cases are remanded for trial.
Reversed.