No automatic right for DWI defendant to inspect inside of police station State v Carrero __ NJ Super. ___ (App. Div. 2012)
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.