State v. Carrero

54 A.3d 318, 428 N.J. Super. 495
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 23, 2012
StatusPublished
Cited by17 cases

This text of 54 A.3d 318 (State v. Carrero) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carrero, 54 A.3d 318, 428 N.J. Super. 495 (N.J. Ct. App. 2012).

Opinion

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 [501]*501Division 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.

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.

[502]*502Defense counsel for Carrero thereafter served the municipal prosecutor with pretrial discovery requests. One of those requests sought the following:

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 inteiference (EMI) including but not limited to radio frequency inteiference, i.e., photocopying machines, radio transmitters, microwave oven, computer terminals, etc. Said opportunity includes photocopying of instruction and sendee 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 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 [503]*503judge 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 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, 943 A.2d 114, 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.”

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 [504]*504State 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.

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Bluebook (online)
54 A.3d 318, 428 N.J. Super. 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carrero-njsuperctappdiv-2012.