sample discovery demand in an alcotest case. More contained in the NJ ICLE book by Ken Vercammen & John Menzel
Since
this is an Alcotest case, demand is made that the Prosecutor and Police provide
us with paper discovery, not electronic discovery, on attached Schedule A
pursuant to Rule 3:13-3, Rule 7:7-7(b), the Open Public Records Act (OPRA)
47:1A-1 et seq. and the common law right to know under Shuttleworth v. City
of Camden, 258 N.J. Super. 573 (App. Div. 1992). Included is demand for dispatcher time
records and all CAD REPORTS/ COMPUTER ASSISTED DISPATCH REPORTS.
Please
preserve any video and advise if there is a video of the stop or arrest. If so,
fax us the cost for the video and who the check is payable to. Please forward
to me all documents which you have in your possession or which are in the possession of any law enforcement
agency or the complainant involved in
this case. Since there is a DWI moving violation, you must provide us with a
driver's license abstract. The Court Rules require the Prosecutor and Court to
review the abstract. Please advise immediately of the cost for discovery.
In
addition, each request is specifically sought under the rule of Brady v
Maryland, 373 U.S. 83 (1963) and its progeny, and State v Polasky 216 N.J.
Super. 549 (Law Div. 1986). Unless all requested discovery is received and
Evid. Rule 807 is complied with, the defense will make a motion to dismiss all
charges and will object to any attempt by the State to introduce evidence at
trial. Demand is made for a speedy trial.
I
serve as Public Defender in Metuchen on Wednesday nights at 6:30 so I request
no Wednesday night trials, if possible.
If the Court or the Prosecutor has any questions I would be glad to
speak with you.
Respectfully
submitted,
KENNETH VERCAMMEN
Certified
Municipal Court Law Attorney
KAV/
cc: client
SCHEDULE A
DISCOVERY SCHEDULE- [Discovery List: DWI
Alcotest 7110 Cases]
ALCOTEST
The
following items are requested by defendant and defendant's expert if an
Alcotest machine was used. Since my client does not have ready access to the
internet, we request hard copy of documents, not a website link:
I. Documents explicitly set forth in the Order
accompanying State v. Chun (following each item is a reference to which section
of the Order provides for that item):
1. "All Dräeger Certificates of
Accuracy" for the Alcotest(r) used to test Defendant's breath [3(C)(5)]
2. "Certification of Analysis" for
the .10% simulator solution lot used during the Defendant's breath tests
[6(B)(3)]
3. "Calibration Record" for the last
calibration (must be within the last six months) of the Alcotest(r) used to
test Defendant's breath, prior to the test [3(C)(6)]
4. "Certification of Analysis" for
the .10% simulator solution lot identified on the "Calibration
Record" document [3(C)(7)]
5. "Certificate of Accuracy" for the
CU-34 identified on the "Calibration Record" document [3(C)(10)]
6. If the "Calibration Record" has a
"Black Key Temperature Probe" identified by serial number, then we
need the "Certificate of Accuracy" for it [3(C)(11)]
7. "Part I - Control Tests" from the
last calibration [3(C)(6)]
8. "Certification of Analysis" for
the .10% simulator solution lot identified on the "Part I - Control
Tests" document [3(C)(7)]
9. "Certificate of Accuracy" for the
CU-34 identified on the "Part I - Control Tests" document [3(C)(10)]
10. "Part II - Linearity Tests" from
the last calibration [3(C)(6)]
11. "Certification of Analysis" for
the .04% simulator solution lot identified on the "Part II - Linearity
Tests" document [3(C)(8)]
12. "Certification of Analysis" for
the .08% simulator solution lot identified on the "Part II - Linearity
Tests" document [3(C)(8)]
13. "Certification of Analysis" for
the .16% simulator solution lot identified on the "Part II - Linearity
Tests" document [3(C)(8)]
14.
"Certificate of Accuracy" for the CU-34 using .04% simulator solution lot identified on the
"Part II- Linearity Tests" document [3(C)(10)]
15. "Certificate of Accuracy" for the
CU-34 using .08% simulator solution lot
identified on the "Part II- Linearity Tests" document [3(C)(10)]
16. "Certificate of Accuracy" for the
CU-34 using .16% simulator solution lot
identified on the "Part II- Linearity Tests" document [3(C)(10)]
17. "Ertco-Hart (or other NIST traceable
thermometer) Report of Calibration" [3(C)(12)]
18. "New Standard Solution Report"
from the simulator solution change performed immediately after the last
calibration [3(C)(9)]
19. "New Standard Solution Report"
from the last simulator solution change performed on the Alcotest(r) used to
test defendant's breath, prior to the test [3(C)(1)]
20. "Certification of Analysis" for
the .10% simulator solution lot identified on the "New Standard Solution
Report" [3(C)(2)]
21. "Certificate of Accuracy" for the
CU-34 identified on the "New Standard Solution Report" [3(C)(3)]
22. All Alcotest(r) Certification Cards for any
officials named on either the "Alcohol Influence Report", the "Calibration
Record / Control Tests / Linearity Tests", or the "New Standard
Solution Reports." [3(C)(1); 3(C)(6); 6(A); 6(B)(1)]
II. Documents the Supreme Court did not
specifically state in the Chun Order, but which are inferred by the Order and
are requested and are customarily provided without objection by the State:
23.
"Alcohol Influence Report" (A.I.R.)
24.
"Certificate of Accuracy" for the CU-34
calibrating unit used during the Defendant's breath tests
25.
"Certification of Analysis" for the .10%
simulator solution lot identified on the "New Standard Solution
Report" (see #18 from Part I)
26.
"Certificate of Accuracy" for the CU-34
identified on the "New Standard Solution Report" (see #18 from Part
I)
27.
"Certificate of Accuracy" for the
"Temperature Probe," identified by serial number, for each "New
Standard Solution Report" (see #18-21 from Part I)
III. Documents the Supreme Court did not
specifically state but are requested and which are requested by our experts:
28.
At least one, but preferably five redacted A.I.R.s
immediately preceding that of the Defendant.
29.
All available Alcotest(r) Data Downloads from the
Alcotest(r) on which the Defendant was tested. These were performed yearly or
after approximately 500 tests, whichever came first, prior to State v Chun. They are now performed every six months or
after approximately 500 tests, whichever comes first.
30.
Verification of the date in which the Alcotest(r) used
to test the Defendant's breath was first placed into service.
31.
Date of fuel cell (EC) replacement, if any.
32.
Complete service and repair record from the Department
and Dräger for the Alcotest(r) instrument used to test the Defendant's breath.
Other documents:
33.
video tapes
34.
audio tapes
35.
state's expert reports or statement of the facts and
opinions to which the expert is expected to testify and a summary of the
grounds for each opinion
36.
resume, curriculum vitae, or other summary of the
expert's qualifications
37
Our expert also wishes to inspect the area in which the Alcotest(s) is
installed and the area immediately surrounding the installation, for purposes
of observing, photographing and testing for the presence of RFI interference
and EMI (electro motive interference).
Our expert also
requests:
38.
All alcohol influence report test data for air blank,
simulator, subject, linearity, and any and all other tests conducted by the
National Draeger Alcotest Model 7110 MKIII-C ["7110"] relevant to
Defendant's breath tests both printed and/or stored in the instruments random
access memory and/or downloaded to read only memory.
39.
Any breath testing logs maintained by the station or
department in connection with the 7110 used to test Defendant's breath.
40.
State and manufacturer's assay, analysis, quality
assurance, or similar documents and documents on each and every analysis,
standard, and control run in the series of runs involving analysis of the
following simulator solutions, including chemist's notes, gas chromatograph
("GC"] printouts, GC service records (if any), quality control
manual, and testing procedures and custody documents for the simulator
solutions:
(i)
0.040 simulator solution let used in 7110 Linearity Tests with the model CU-34
simulator used in control and calibration checks of the 7110 both before and
after Defendant's breath tests
(ii)
0.080 simulator solution lot used in 7110 Linearity Tests with the model CU-34
simulator used in control and calibration checks of the 7110 both before and
after Defendant's breath tests
(iii)
0.160 simulator solution lot used in 7110- Linearity Tests with the model CU-34
simulator used in control and calibration checks of the 7110 both before and
after Defendant's breath tests
(iv)
0.100 simulator solution lot used in breath tests with the model CU-34
simulator used in Defendant's breath tests
41.
Records showing that the following simulators and the simulator
temperature probes were and are in proper operating condition:
a.
The simulators used in the Linearity
Tests on the 7110 in Defendant's breath tests both before and after those tests
b
The simulator used in defendant's breath tests
42.
Records (i.e., appointment letter from the
Attorney General and operator
certification replica card, front and back, showing that the Breath Test
Coordinator Instructors (who inspected the 7110 and changed 7110 simulator solutions
used in defendant's breath tests) was properly certified as such pursuant to
the Administrative Code
43.
7110 New Jersey State Police Operator Manuals
State v Young 242 NJ
Super. 467 (App. Div. 1990): STATE v. JOHN GREEN
A-6199-08T4 11-09-10
44.
7110 Any other Operator Manuals
45.
7110 New Jersey State Police Service Manuals
46.
7110 Manufacturer's Service Manuals
47.
7110 Firmware instructions [to establish,
among other things, minimum volume and duration requirements for acceptance of
breath samples, prompts which induce an operator to charge or not to charge a
subject with a breath test refusal, the degree of accuracy which the 7110 will
accept, and the degree of precision within which the 7110 will deem multiple
results reliable] for version 3.11 and previous versions 3.8, 3.9, and 3.10
48.
Calibrating Unit CU-34 New Jersey State
Police Operator Manuals
49.
Calibrating Unit CU-34 Manufacturer Operating
Manuals
50.
Calibrating Unit CU-34 New Jersey State
Police Service Manuals
51.
Calibrating Unit CU-34 Manufacturers Service
Manuals
52.
Initial certification course for certifying
Alcotest operators
53.
One day conversion course for certifying
Alcotest operators
54.
All interoffice communications, standard
operating procedures, operational orders, memoranda, and other documents re the
7110
55.
All letters, memoranda, and other
correspondence between New Jersey state agencies and the National Draeger re
evaluation and modification of the 7110
(1)
BALANCE TESTS:
If Defendant was told to do certain "tests" -- e.g., recite ABC's, count backwards, one-leg-stand,
heel-to-toe stand, heel-to-toe walk, sway test, head tilt, waist bend, elephant
hang, finger-to-nose, coin pick up, etc. --
1. documents describing how,
under what conditions, and by whom each "test" was given
2. documents describing
"test" results
3. training materials for each
"test", including manuals, lesson plans, texts, tests, and article
reprints
At
a time to be set by the Court, Defendant will make the following Motions and move
for Orders pursuant to R. 3:10-5, 3:13-1, and 7:7-7, as follows and requests
oral argument pursuant to R. 1:6-2(d) to preserve all of defendant's rights and
defenses:
1. Suppress Evidence. Defendant will move to
suppress, evidence obtained by the State during its investigation of case,
pursuant to R. 3:5-7 and 7:5-2, because evidence--ie defendant's person,
breath, blood, and/or other things--was seized unlawfully, without a
warrant and contrary to U.S. Const.
Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State
will use this evidence in proceedings before this Court on the above captioned
charges.
2. Miranda/Privilege. Defendant will move to
exclude statements by, and evidence obtained from, Defendant during the State's
investigation of this case because the statements and evidence (a) create
substantial danger of undue prejudice to Defendant contrary to Evid.R. 403
(previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously
Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX,
and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in
Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its
progeny.
3. Notice of Objection. If the State gives
notice of intent to proffer a certificate executed by a laboratory employee
pursuant to N.J.S. 2C:35-19c, Defendant hereby objects to it on the grounds
that Defendant intends to contest at trial the composition, quality, and
quantity of substances submitted to the laboratory for analysis.
