sample DISCOVERY SCHEDULE- [Discovery List: DWI Alcotest 7110 Cases] from seminar Handling Drug, DWI and serious municipal court cases

sample DISCOVERY SCHEDULE- [Discovery List: DWI Alcotest 7110 Cases] from seminar Handling Drug, DWI and serious municipal court 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. AIR)

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 ALCOTEST Operator Manuals WHICH THE ARRESTING OFFICER STUDIES FOR USE ON THE MACHINE   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 FIELD SOBRIETY TESTS FST "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

Expert needed in dwi under influence of methadone STATE v. TAMBURRO

Expert needed in dwi under influence of methadone STATE v. TAMBURRO

68 N.J. 414 (1975)

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RUSSELL J. TAMBURRO, DEFENDANT-APPELLANT.

The Supreme Court of New Jersey.

Decided October 21, 1975.

Mr. James V. Tamburro argued the cause for defendant-appellant.

Mr. Dante P. Mongiardo, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Joseph D.J. Gourley, Passaic County Prosecutor, attorney).

Mr. Julian Wilsey, Deputy Attorney General, argued the cause for amicus curiae the State of New Jersey (Mr. William F. Hyland, Attorney General, attorney).

Mr. Eric A. Summerville argued the cause for amicus curiae Patrick House Legal Clinic.

The opinion of the Court was delivered by SULLIVAN, J.

Defendant Russell J. Tamburro was found guilty of operating a motor vehicle while under the influence of a narcotic, a violation of N.J.S.A. 39:4-50(a). He was enrolled in a methadone maintenance program at the time and admitted to having ingested a prescribed dose of

[68 N.J. 417]

methadone the morning of his arrest.¹ The arrest took place on July 31, 1972 at approximately 10:00 P.M.

Defendant contends that the evidence was insufficient to support his conviction and, if valid, adversely affects all methadone programs by subjecting participants therein to charges of violating N.J.S.A. 39:4-50. We find no merit or validity in any of defendant's contentions and affirm the judgment of the Appellate Division which upheld the finding of guilt.

On the evening in question a Clifton police officer in an unmarked patrol car observed defendant who was operating a motor vehicle and was attempting to pull out onto Route 46, a four-lane highway. Despite wide gaps in traffic defendant did not readily avail himself of opportunities to enter upon the highway, and when he did so, made an extremely wide right-hand turn causing part of his car to cross over into the fast lane of eastbound traffic. Defendant proceeded easterly along Route 46 and then made another extremely wide right-hand turn into a side street, coming "to the extreme left hand side of the street." At this point the officer overtook defendant's vehicle and stopped it.

When defendant was asked for his license and registration he fumbled excessively with his wallet. Defendant was asked to get out of the car and, when he did so, the officer noticed that defendant's eyes were bloodshot and glazed with pinpointed pupils. As defendant stood there, he swayed slightly, appeared uncoordinated and his speech periodically became slurred. He appeared tired, sluggish and drowsy. He denied that he had been drinking. There was no odor of an alcoholic beverage on his breath, nor any indication of physical injury.

The officer, who had undergone special training and education in the drug detection and drug abuse field and who

[68 N.J. 418]

was then assigned to the Clifton Drug and Abuse Squad, said to defendant that he appeared to be under the influence of drugs, whereupon defendant stated that he had taken 120 miligrams of methadone in a methadone maintenance program earlier that day.

The officer was of the opinion that defendant could not operate a motor vehicle competently and had not been operating one competently. He placed defendant under arrest and charged him with a violation of N.J.S.A. 39:4-50.

Defendant was taken to police headquarters in Clifton where an eye test and walking test were administered. The arrest report noted defendant's pale face, bloodshot eyes with pinpointed pupils, changing moods from hostility to passiveness, drowsiness and a scabbed needle mark on his right arm not of recent origin. No blood or urine tests were given.

Defendant was tried in the Clifton Municipal Court on a charge of operating a motor vehicle while under the influence of a narcotic. At the trial, the arresting officer testified to the foregoing matters and expressed an opinion based on his expertise in the drug field that at the time he arrested defendant, defendant's faculties were impaired, that defendant could not operate a motor vehicle properly and that he was under the influence of narcotics.

The State also presented testimony from Dr. Robert W. Baird, a medical doctor, who had an extensive background in narcotics and drug control. The trial court found him to be eminently qualified in this field.

Dr. Baird, in answer to a hypothetical question which described defendant's physical condition at the time of his arrest, including all of the symptoms testified to by the officer and the absence of any odor of alcohol or indicia of any physical injury, expressed the opinion that such person had recently, within several hours, ingested an opiate or a narcotic which had opiate-like qualities. He said that these symptoms could not have been produced by anything other than the ingestion of a narcotic drug and that a person

[68 N.J. 419]

with such symptoms would be under the influence of a narcotic drug.

He described methadone as a synthetic narcotic having addictive properties and opiate-like qualities. It is widely used in methadone maintenance programs, the object of which is to block off the desire for heroin. In the beginning a person is given small doses of methadone which are gradually increased in amount as the system builds up a tolerance. The dosage is levelled off at a plateau determined by the physician and thereafter the person is maintained on a regular daily dosage. In the early stage of the program the individual is rather sleepy and unresponsive because of the tranquilizing effect.² However, as a tolerance is built-up, the effects on the person are diminished but would still remain to some degree and, depending on the individual could affect driving ability.

Defendant testified as a witness and denied that his operation of the motor vehicle, his appearance and symptoms were as described by the officer. He acknowledged that he had been on a methadone maintenance program for 13 months and that he regularly took his prescribed dosage of methadone between 7:00 and 7:30 every morning. He also produced Dr. Hans W. Freymuth, a medical expert in the field of narcotics, who testified that it was highly unlikely that defendant would exhibit the symptoms observed by the officer from a regular dosage of methadone taken some 14 hours earlier as part of a maintenance program.

It was his opinion that "something else" was responsible for defendant's condition and while he thought that an additional dose of methadone would not be the cause, there was a strange mixture of symptomatology which made it difficult to determine what kind of toxic substance defendant might

[68 N.J. 420]

have taken. Dr. Freymuth would at least "suspect" that defendant had taken additional methadone or another opiate.

The trial judge found the arresting officer's testimony as to defendant's erratic operation of his car, his behavior and physical characteristics to be credible. He also accepted the testimony of Dr. Baird and found that defendant had, within several hours of his arrest, ingested an opiate or a narcotic drug with opiate-like qualities, so that at the time of his arrest defendant was under the influence of a narcotic to the extent that his physical coordination and mental faculties were deleteriously affected. As heretofore noted, he found defendant guilty. A fine of $200 and costs was imposed and defendant's driver's license was suspended for a period of two years.

Defendant appealed to the County Court where, on a trial de novo on the record, he was again found guilty and the same sentence was imposed. On appeal to the Appellate Division, the judgment was affirmed on the ground that there was sufficient credible evidence to support the conviction of defendant for operating his motor vehicle while under the influence of methadone which the Appellate Division noted "clearly" was a narcotic drug.

We granted certification principally to consider the impact, if any, of defendant's conviction on methadone maintenance programs. 66 N.J. 333 (1974).

The principal contention of defendant and the amicus Patrick House Legal Clinic is that defendant was convicted because of his admitted participation in a maintenance program and that the Appellate Division equated defendant's legal use of methadone with being under the influence of methadone. It is argued that this broad application of the statute effectively bars participants in methadone maintenance programs from operating a motor vehicle — almost a necessity in today's society — thus destroying the viability and attractiveness of these maintenance programs.

We do not agree that the Appellate Division gave the statute the meaning attributed to it. The language "under

[68 N.J. 421]

the influence" used in the statute has been interpreted many times. Generally speaking, it means a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs. In State v. Johnson, 42 N.J. 146, 165 (1964), an intoxicating liquor case, we stated that "under the influence" meant a condition which so affects the judgment or control of a motor vehicle operator as to make it improper for him to drive on the highway. More recently, in State v. DiCarlo, 67 N.J. 321 (1975), we held that an operator of a motor vehicle was under the influence of a narcotic drug within the meaning of N.J.S.A. 39:4-50(a) if the drug produced a narcotic effect "so altering his or her normal physical coordination and mental faculties as to render such person a danger to himself as well as to other persons on the highway." Id. at 328.

Essentially this was the standard applied by the Appellate Division. Defendant was found guilty because the evidence showed he was under the influence of a narcotic to an extent that it materially affected his physical and mental faculties and made it unsafe for him to operate a motor vehicle on the highway.

The Appellate Division stated that the drug in question was methadone. However, this was unnecessary to the court's decision. The statute does not require that the particular narcotic be identified. It is enough if, from the subject's conduct, physical and mental condition and the symptoms displayed, a qualified expert can determine that he or she is "under the influence" of a narcotic. This, of course, would include a drug which produces a narcotic effect. DiCarlo, supra. To the extent that State v. Siegmeister, 106 N.J.Super. 577 (Cty. Ct. 1969) and State v. Tiernan, 123 N.J.Super. 322 (Cty. Ct. 1973) hold to the contrary, they are disapproved.

[68 N.J. 422]

The thrust of the Motor Vehicle Act is safety on the highway. The particular section is addressed to the evil of operating a motor vehicle while one's physical coordination or mental faculties are substantially diminished by "intoxicating liquor, narcotic, hallucinogenic or habit-producing drug." Competency to operate a motor vehicle safely is the critical question.

It should be made perfectly clear that mere participation in a methadone maintenance program does not subject a motor vehicle operator participant to a charge of violating this statute. There were proofs that once a participant becomes stabilized on a regular dosage of methadone, ability to operate a motor vehicle with safety is not impaired. However, participation in such a program does not immunize a person from application of the statute.

We do not know whether defendant's condition was the result of his having taken his prescribed dosage of methadone that morning. His medical expert opined that "something else" had caused defendant's symptoms. What is clear, though, is that defendant exhibited unmistakable symptoms of being under the influence of a narcotic within the meaning of the statute, and was unfit to operate a motor vehicle.

Affirmed.

For affirmance — Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD — 7.

For reversal — None.

FOOTNOTES

1. Defendant asserts that in May 1971, the Clifton Municipal Court had ordered him to enroll in a methadone maintenance program.

2. Because of this, participants in methadone maintenance programs are required to surrender their drivers' licenses to the program during the first few weeks of treatment.