After the landmark decision in State v. Chun, a significant part of DWI defense in New Jersey breath testing cases focuses on how the machine operated at the time of the defendant or accused’s testing. Challenging the “operability” of the machine is different than challenging the “scientific reliability” of the machine or its process. The latter challenge is now precluded by Chun. Now, the questions center on whether the machine was operating as it is expected at or around the time of the defendant’s arrest.
One of the most important assessments of how the machine is working is done through an analysis of the electronic data that is stored in the machine. This discovery or information obtained from the machine is referred to as the “data download”.
The data download is created every six months or so, when a State Police trooper does the bi-annual calibration on the machine, as required now by Chun. A copy of the information is downloaded onto two CD’s. One is taken to West Trenton and will eventually be made part of a statewide database that is supposed to be made available to the public “forthwith”, or immediately after Chun was decided in March 2008. The other disc is left in the local police department and is available for “discovery” by defendants tested on the machine.
I have been asking for and obtaining this information from courts for well over a year now, and have had great success with the information, utilizing it to have breath test readings suppressed in many cases.
Until recently, many prosecutors and courts have been reluctant to allow the information to be made available. Last year, I was successful in obtaining an order from the Appellate Division, compelling a court to provide the downloads to me. That order in State v. Reardon has been widely circulated and used as a basis to obtain downloaded information statewide.
Now, an unpublished decision from the Appellate Division has made the issue a little clearer in State v. Maricic. This case, like Reardon, says that a download must be provided as part of normal discovery. Maricic, however, only addresses the most recent download prior to that individual’s arrest.
It is critical to obtain all of the downloads available for machine in issue, including the accused’s own downloaded information. That is the only way to properly assess the operability of the machine.