STATE OF NEW JERSEY v. ALLISON MUELLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLISON MUELLER,

Defendant-Appellant.

________________________________________________

February 14, 2014

Argued January 13, 2014 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. MA-10-056.

John Menzel argued the cause for appellant.

Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Outeiro, of counsel and on the brief).

PER CURIAM

Allison Mueller appeals from the January 11, 2013 order of the Law Division affirming her conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after trial de novo. For the reasons that follow, we affirm.

I.

The record discloses the following facts adduced from the trial de novo in the Law Division and the record developed in the municipal court. On September 4, 2009, defendant was operating a vehicle in Spring Lake Heights at approximately 10:40 p.m. when she was stopped, apparently for failure to keep right and failure to signal for a turn. Defendant was subsequently arrested and charged with DWI and other traffic violations. She was taken to police headquarters where she was administered a breath test of her blood alcohol content (BAC) utilizing an Alcotest machine. Defendant provided two breath samples and the test revealed her BAC was 0.14 percent, well in excess of the legal limit of .08 percent. N.J.S.A. 39:4-50(a).

Defendant moved to dismiss the complaint or, in the alternative, exclude the Alcotest results based on the State's failure to provide certain discovery in the form of digital data files "including, calibration, control, linearity, and any and all other tests" from the Alcotest machine used to measure defendant's BAC. The State informed the municipal judge that while the digital files had been deleted from the Alcotest, all pertinent information contained in the digital files had been provided in paper form. The municipal court denied defendant's motion and on July 13, 2010, she entered a conditional guilty plea to DWI. Defendant was sentenced to a seven-month license suspension, attendance at an Intoxicated Driver Resource Center (IDRC) for twelve hours, and appropriate fines and penalties.

Defendant appealed, and Judge Richard W. English heard oral argument on August 3, 2012. On January 11, 2013, Judge English denied defendant's appeal and re-imposed the same fines and penalties, staying them for forty-five days, pending the filing of this appeal. On appeal, defendant argues:

i.

this court must protect a defendant's rights, especially in light of the alcotest instrument's recognized shortcomings.

ii.

the state failed to provide discovery of complete alcotest data as required by the municipal court's order and our supreme court.

iii.

the state's failure to provide discovery of complete alcotest data warrants a sanction: dismissal, exclusion, or remand.

iv.

other pending unreported cases have considered the issues here.

II.

The facts here are not in dispute and we are presented with pure issues of law. 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, L.P. v. Twp. Comm. of Manalapan, 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, 295 (2012).

Defendant alleges that the data provided to her is "incomplete due to what appears to be intentional deletion by the State without any evidential support for the necessity to do so." Specifically, defendant maintains the State failed to produce "electronic data files for the calibration, control, and linearity functions." She claims that this evidence is "material, relevant, and exculpatory."

In State v. Chun, 194 N.J. 54, 65, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Court held that the Alcotest is scientifically reliable and outlined the requirements for admissibility of Alcotest results. The State must "clearly establish" that "(1) the [Alcotest] device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. 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.]

The Alcotest machine produces electronic data records as part of its normal function. Id. at 90. In Chun, the Court imposed the requirement that the State "[c]reate 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.

A defendant charged with DWI is also entitled to the downloaded Alcotest results from the date of the machine's last calibration. State v. Maricic, 417 N.J. Super. 280, 286-88 (App. Div. 2010). Defendant was provided with the foundational documents required by Chun and has presented no evidence to support her claim that the State destroyed or concealed evidence in bad faith or that the Alcotest device used in this case was not working effectively.

In argument before Judge English, the State conceded that it failed to supply digital, downloaded copies of certain diagnostic Alcotest data. The prosecutor explained that the data was unavailable in digital form because "the firmware . . . requires the State to delete this information in order to keep the Alcotest running[.]" Judge English agreed, finding that the State's deletion of the electronic Alcotest data was done in good faith and in accordance with routine practice.

Judge English also found that defendant had not demonstrated that the digital records differed from information contained in the paper form she was provided with and thus no Brady1 violation occurred. We agree.

"Without bad faith on the part of the State, 'failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)).

Nor does defendant dispute the State's claim and Judge English's finding that routine calibration of the Alcotest requires the elimination of existing data stored within the machine.

We are satisfied that the State furnished all the necessary documentation, as required by our case law. Moreover, there is nothing in the record to support a finding that digital copies of the Alcotest data containing the missing diagnostic tests, if disclosed, had a "reasonable probability" of changing the outcome of defendant's case. See State v. Martini, 160 N.J. 248, 269 (1999).

We have considered defendant's other arguments and find that they are without sufficient merit to require further discussion in this opinion. R. 2:11-3(e)(2).

In the January 11, 2013 order, Judge English stayed the fines and penalties for forty-five days. No application for a further stay has been filed with us. In the event defendant has not surrendered her license and paid the fines and penalties, she must do so immediately upon the filing of this opinion.

1 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).