NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0296-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT ROBERTSON,

Defendant-Appellant.

___________________________________

Submitted September 9, 2014 – Decided 

Before Judges Messano, Ostrer and Hayden.

On appeal from the Superior Court of New 

Jersey, Law Division, Monmouth County, 

Municipal Appeal No. 13-023.

John Menzel, attorney for appellant.

Christopher J. Gramiccioni, Acting Monmouth 

County Prosecutor, attorney for respondent 

(Monica do Outeiro, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Scott Robertson appeals from his September 2013 

conviction, after a trial de novo, of driving while under the 

influence of intoxicating liquor (DWI), N.J.S.A. 39:4-50. 

Defendant's appeal pertains mainly to the admissibility of 

APPROVED FOR PUBLICATION

November 14, 2014

APPELLATE DIVISION

November 14, 2014
A-0296-13T1

2

Alcotest results showing he had a blood alcohol level of .13. 

Defendant unsuccessfully argued that he was entitled to 

discovery of certain data and repair records of the specific 

Alcotest device used. He asserted that the State's failure to 

provide such discovery compelled exclusion of the Alcotest 

results. After the court denied defendant's motion, he agreed 

to a trial on stipulated facts. 

Defendant renews his arguments before us, and we affirm, in 

light of the factual record and applicable principles of law.

Neither State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 

129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), nor established

principles of discovery, compel exclusion of the Alcotest 

results.

We also choose to address an important issue not raised by 

the parties pertaining to the stays of defendant's license 

suspension pending appeal entered by both the municipal court 

and the Law Division. We instruct trial courts that any stay of 

a license suspension after conviction should be supported by 

adequate findings of fact and conclusions of law, and should 

comply with standards governing the grant of a stay pending 

appeal.
A-0296-13T1

3

I.

We discern the following facts from the record, including 

testimony presented at an unsuccessful suppression motion 

challenging probable cause to arrest.1 Defendant was stopped on 

August 11, 2012, shortly before 2:00 a.m., after a Wall Township 

Police Officer observed defendant repeatedly encroach upon the 

fog line. After approaching defendant's convertible, the 

officer detected the strong odor of alcoholic beverage. 

Defendant admitted that he drank a small number of beers, but 

denied being intoxicated. The officer asked the defendant to 

submit to a field sobriety test. According to the officer, 

defendant performed poorly. He was unable to follow the 

officer's instructions and lost his balance on several 

occasions.

2 

The officer arrested defendant and transported him to 

police headquarters. Defendant was administered breath tests on 

an Alcotest 7110 MKIII-C device (Alcotest). After producing the 

.13 BAC result, he was charged with DWI, N.J.S.A. 39:4-50, as 

 

1 The order denying the suppression motion is not before us on 

appeal.

2 The stop was captured on a video-recording which was admitted 

into evidence, and viewed by the municipal court and Law 

Division. It is not part of the record before us.
A-0296-13T1

4

well as failure to maintain a lane, N.J.S.A. 39:4-88(b), and 

reckless driving, N.J.S.A. 39:4-96.

The municipal court denied defendant's motion for a jury 

trial, and his motion to suppress evidence based on an alleged 

lack of probable cause to arrest. The court then denied 

defendant's motion to exclude the Alcotest results based on the 

asserted denial of discovery after a non-testimonial hearing on 

May 1, 2013. Defendant supported his motion with an expert's

report.3

A. The Discovery Dispute

Although defendant presented an extensive demand for 

discovery, only two categories of requests remain relevant to 

this appeal. First, defendant sought more detailed records 

associated with the repair of the particular Alcotest device 

used in defendant's case, identified by serial number ARXA-0037. 

Second, defendant sought "data downloads" of various diagnostic 

tests of the device. Defendant argued that hard copies of the 

 

3 The State did not question the author's qualifications as an 

expert in the operation of the Alcotest device, nor did the 

State object to the court's consideration of the expert report

as evidence on the motion, although it was unaccompanied by a 

proper certification. See R. 1:6-6 (stating that where "a 

motion is based on facts not appearing of record or not 

judicially noticeable," the facts shall be presented by 

affidavit or certification made on personal knowledge, and 

admissible in evidence).
A-0296-13T1

5

test results were incomplete. We address these requests in 

turn.

With respect to repair records, defendant received, or had 

access to, through the State's database, several documents 

reflecting that the device was returned to its manufacturer, 

Dräger, in November 2008 and September 2011, for service.4 In 

both November 2008 and September 2011, Dräger replaced the fuel 

cell and calibrated the device.5 In September 2011, a second 

 

4 Defendant's expert asserted that defendant received or had 

access, through the State Police's database — which the expert 

called a "data depository" — six documents: (1) a "Draeger 

Safety Equipment Return Form" dated November 17, 2008; (2) a 

"Dräger Return & Repair Form" dated November 18, 2008; (3) a 

packing slip dated November 20, 2008; (4) a "Breath Testing 

Instrumentation Service Report" dated September 7, 2011; (5) a 

"Dräger Return and Repair Form" dated September 13, 2011; (6) a 

packing slip dated September 20, 2011; and (7) a second "Breath 

Testing Instrumentation Service Report" dated September 29, 

2011. Only documents (2) and (5) are included in the record 

before us. We obviously cannot address documents not included 

in the record. See R. 2:6-1(a) (stating that the appendix 

"shall contain . . . such other parts of the record . . . as are 

essential to the proper consideration of the issues."); see also

Johnson v. Schragger, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 

(App. Div. 2001) (noting failure to supply documents "essential 

to the proper consideration of the issues hinders our appellate 

review.") (internal quotation marks and citation omitted). 

Consequently, we cannot determine whether the machine was 

serviced once or twice in September 2011.

5 Defendant's expert asserted that the machine was manufactured 

in 2006, but was not placed into service until November 2008. 

The expert explained that machines that were "shelved," as 

apparently was the case here, often needed new fuel cells before 

being placed into service. 
A-0296-13T1

6

replacement part, described only as a "Plate," was apparently 

installed. 

Defendant sought the results of various tests that Dräger 

performed after replacing the fuel cell, before returning the 

machine. Defendant's expert asserted, "Actual opening of the 

instrument and measurement and adjustment of critical internal 

operating values can only be done by Dräger at its service 

center." He asserted that "the steps of this procedure and the 

values obtained and/or which are set by Dräger are recorded on a 

checklist completed at the Dräger Service Center . . . ." The 

expert distinguished these documents from the calibrations

conducted by the State Police breath test coordinators. He

minimized these as, "simple check[s] to see if the instrument 

can read assayed" solutions "within acceptable tolerances and 

that these readings fall within a specified parameter, and fit 

to a line or are 'linear.'" Defendant presented exemplars of 

Dräger's test results, which were also included in the record 

before the Special Master in Chun. 

Defendant's expert argued that Dräger's internal 

measurements and adjustments were essential parts of a "complete 

Dräger Repair Record," and were essential to indicate "what, if 

any, service was performed in the subject instrument, even if 

said service was performed prior to the instrument being placed 
A-0296-13T1

7

into service." He asserted that the documents were needed in 

order to obtain a "complete picture of the operability of the 

instrument." 

As of September 4, 2012, the machine produced 680 Alcohol 

Influence Reports (AIR). These were reflected in nine data 

downloads in connection with nine complete calibration cycles. 

Defendant's expert explained that an Alcotest coordinator 

downloads data during recalibration, which must occur at least 

semi-annually, under Chun, supra, 194 N.J. at 153.6 There were 

gaps in the numbered AIRs. For example, the seventh data 

download on September 7, 2011 covered AIR breath tests 397 

through 489 between March 31, 2011 and September 6, 2011. The 

eighth data download on March 7, 2012 covered AIR breath tests 

501 through 554 between October 23, 2011 and March 5, 2012. 

Defendant's expert asserted that repair records were needed 

to understand the gaps in breath tests. For example, eleven 

breath tests were missing between September 7 and October 22, 

2011. However, the expert stated that gaps usually "indicate 

 

6 Also, after an Alcotest device performs 500 tests, Alcotest 

coordinators typically download all the data on the device to 

"avoid the instrument's tendency to slow down as it searches 

large numbers of files. After downloading, all information in 

the Alcotest 7110 is removed but the sequential file numbers 

continue." Findings and Conclusions of Remand Court, Special 

Master Report (SMR) 104, February 14, 2007. Downloads are also 

performed before the machine is shipped for service. Ibid. 
A-0296-13T1

8

that the instrument has suffered a service issue . . . and in 

many cases has been returned to Dräger for service and/or 

repair." That may have been the case here, as the gaps cited 

coincide with the 2008 and 2011 repairs. 

Defendant also sought, in electronic format, the nine data 

downloads. However, only three file record types remain at 

issue on appeal: the calibration test, the control test, and the 

linearity test. These three files are identified by the 

following numbers, respectively: 21NJ3-11, 22NJ3-11, and 58NJ3-

11. Defendant argued that the data files "must have existed in 

order for the Alcotest instrument to generate the corresponding 

Calibration Record and Calibration Record, Part I-Control Tests, 

and Part II-Linearity Tests reports." Defendant did not dispute 

that he received the "corresponding" records and reports. He 

argued that the data files stored in the device included more 

information than contained in the paper records, in particular,

"the results of pre- and post-test diagnostics," and "firmware 

version number and operational perimeters . . . derived from the 

electronic files." He claimed "[s]uch information goes directly 

to Alcotest operability." Defendant received data downloads for 

the subject breath test and solution change test. He asserted 

other tests should have been provided as well.
A-0296-13T1

9

Defendant's expert stated that "the data downloads provided 

[were] insufficient to determine the operability of the 

instrument." The expert asserted that Dräger has described the 

pre-test and post-test diagnostic checks "as verifying that the 

test records are correct and that all diagnostics checks were 

performed." Another field of information, included in the 

device's data storage but not disclosed in the paper records, 

captures any one of several errors identified in the operator's 

manual. The data also include time stamps of each event that 

occurred within the breath testing sequences, as well as any 

aborted tests. 

The expert argued that the Supreme Court recognized the 

data's importance when it ordered the creation of a centralized 

database of downloaded Alcotest results. See Chun, supra, 194 

N.J. at 153 (ordering the State to "[c]reate and maintain a 

centralized statewide database, comprised of downloaded Alcotest 

results, and shall make the data, following appropriate 

redactions of personal identification as needed, available to 

defendants and counsel"). The expert asserted that the State 

had established "a centralized data depository," but not a 

centralized database; the data did not permit cross file access; 

it was incomplete; and it lacked file integrity. 
A-0296-13T1

10

In support of his argument that the data downloads were 

essential, notwithstanding that he received corresponding hard 

copy reports, defendant noted that the New Jersey State Police's 

Forensic Laboratory Director had compared data files and hard 

copies in connection with his presentations in the Chun

hearings. Defendant argued to the municipal court that 

defendant was "simply attempting to replicate this simple 

safeguard to assure operability of the Alcotest instrument 

used. . . ." 

The lab director, Thomas A. Brettell, compared hard copy 

reports with electronic data downloads of twenty-five devices 

used in twenty-five different police departments in Middlesex 

County, involving 1865 tests during 2005. According to his 

report, which defendant submitted to the court, there were no 

discrepancies.

7

Our record does not reflect that the State presented any 

evidence or expert opinion in opposition to defendant's 

assertions regarding the need for the repair-related records, or 

the data that was not included in the paper disclosures. The 

State also presented no evidence regarding why the data, which 

 

7 Dr. Brettell's comparison is discussed in the Special Master's 

report. Findings and Conclusions of Remand Court, SMR 104, 

February 14, 2007.
A-0296-13T1

11

is generated and stored in the device, was not downloaded and 

made available to defendant. 

However, the State has provided to defense counsel in other 

DWI cases a 2009 memorandum from the State Police's Director of 

Forensic Sciences "explaining that the data at issue could not 

be supplied in downloadable form because it was routinely erased 

following each re-calibration." State v. Pechko, No. A-0871-11 

(App. Div. May 13, 2013) (slip op. at 2), certif. denied, 218 

N.J. 274 (2014); see also State v. Lobo, No. A-4477-11 (App. 

Div. August 28, 2013), certif. denied, 217 N.J. 296 (2014).8 The 

State contended that as a result of a firmware "bug," the device 

would not function properly if the data were retained. Pechko, 

supra, slip op. at 2.9 

 

8 We recognize that citation to unpublished opinions is generally 

prohibited. See R. 1:36-3. However, we cite Pechko and Lobo

for evidential and not precedential purposes. See Mountain 

Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 

155 n.3 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).

9 We quoted the 2009 memorandum of Howard Baum, Ph.D., the 

forensic sciences director, regarding why the three data files 

were deleted after calibration certificates were printed:

The reason the files are deleted is to 

prevent [the] instrument from not 

functioning when it is put in use after 

calibration due to a firmware bug. . . . 

The firmware bug does not affect the 

immediately printed Alcotest 7110 

Calibration Certificates and does not affect 

the reliability of the Alcotest. However[,] 

(continued)
A-0296-13T1

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B. Municipal Court Trial and Stay Order

Upon the completion of pre-trial motions, defendant agreed 

to be tried on stipulated facts. Pursuant to that agreement, 

the court considered the testimony and evidence presented in the 

suppression hearing.10 The State stipulated that it could not 

prove an observational case. The parties also agreed that 

defendant's Alcotest result was .13 BAC; and the State had 

 

(continued)

the electronic calibration files do contain 

additional data that is not printed on the 

Alcotest 7110 Calibration Certificates.

I have examined the electronic files 

generated during calibration and feel the 

additional un[]printed data that they 

contain is not necessary to be preserved. 

Most of the un[]printed data lists the times 

of calibration, linearity, solution change, 

and retrieval date. Even though the times 

are not captured on the printouts, the dates 

of these operations are listed[,] which is 

sufficient. The only other pieces of data 

that are not captured are the software 

version (NJ3.11) and tolerance (5% and 

0.005)[,] which do not change[,] and the 

record type[,] which is not needed. The 

reliability of the Alcotest and the review 

of Alcotest results is not affected by the 

deletion of these files.

[Lobo, supra, slip op. at 12-13.]

10 See State v. Gibson, 219 N.J. 227, 245 (2014) (discussing the 

practice of conducting a trial on evidence presented in a pretrial suppression hearing).
A-0296-13T1

13

provided the foundational documents necessary for the admission 

of Alcotest results. See Chun, supra, 194 N.J. at 142-45, 154.

The municipal court stated: "Based upon the observational 

evidence[,] . . . the administration of the psychophysical 

tests[, and] . . . the blood alcohol content reading as shown 

. . . I will find the defendant guilty of driving while 

intoxicated with a blood alcohol content of .13 percent." The

DWI conviction was defendant's first. The municipal court

sentenced defendant to $714 in aggregate fines and penalties, 

ordered he serve twelve hours in the Intoxicated Driver Resource 

Center, and revoked his driving privileges for seven months —

the minimum sanctions allowed under the circumstances. See

N.J.S.A. 39:4-50(a)(1)(ii). 

Defense counsel requested a stay of the sentence pending 

appeal, stating in support only that defendant intended to file 

an appeal. The State did not object. The court granted a stay 

of the license suspension, but not the fines, provided defendant 

file his appeal within twenty days. The municipal court did not 

provide any reasons.

C. Trial De Novo and Stay

Upon trial de novo before the Law Division, defendant 

renewed his argument that the State's failure to provide 

discovery compelled exclusion of the Alcotest results. The 
A-0296-13T1

14

trial court was unpersuaded. The court understood defendant to 

argue that the data files were necessary "to determine the 

reliability" of the foundational documents required under Chun. 

The trial court held that defendant essentially sought to expand 

the scope of discovery mandated by Chun. The court noted that

if a "defendant perceives an irregularity in any of the 

discoverable foundation[al] documents required by Chun . . . 

timely issuance of a subpoena will suffice for purposes of 

protecting the defendant's rights." 

The court found defendant guilty anew based on the per se 

violation, and also found sufficient evidence to support a 

conviction based on the observational case.

I looked at the DVR of the balance test and 

I would state, as a finder of fact, that I 

would have found beyond a reasonable doubt 

intoxication . . . just based on what I 

viewed . . . on that tape.

I don't understand why the Prosecutor 

conceded that down below. And since I'm 

allowed to review this on my own, I don't 

know that I'm bound by that stipulation 

below, but I would have found him guilty of 

DWI just based on the MVR, regardless of the 

other argument. So, I want that to be into 

the record, if this is reviewed.11

 

11 The Law Division on a trial de novo is free to base a 

conviction on an observational case, even if the municipal court 

has based the conviction solely on a per se violation. State v. 

Kashi, 360 N.J. Super. 538, 545-46 (App. Div. 2003), aff'd, 180 

N.J. 45 (2004).
A-0296-13T1

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The court re-imposed the sentence of the municipal court, 

consistent with his conviction of a per se violation.12

Defense counsel again sought a stay of the license 

suspension. This time, the State objected.

[DEFENSE ATTORNEY]: Judge, I would 

request that we continue the stay concerning 

the driving privilege revocation. There is 

a legal question. All of the cases on which 

the — which the unreported cases, with the 

exception of Carlson, are pending 

certification in the Supreme Court. I 

expect they're going head out to a collision 

course with Chun. And since it is an 

unresolved issue, despite Your Honor's legal 

finding, I'd ask that the stay on the 

license be continued.

[PROSECUTOR]: The State would oppose a 

— a stay at this point. Your Honor, the 

State does recognize that all the Appellate 

Division decisions are unreported, but we 

have — the essentially four panels of the 

Appellate Division and this Court have 

rejected these very same arguments. The 

State would submit that the arguments don't 

raise a valid Appellate issue and would ask 

that the Court not continue the stay at this 

point.

Defense counsel represented to the trial judge that the 

sentences were stayed in other cases pending certification. The 

trial court then ordered a stay pending appeal, provided the 

 

12 The license suspension for a first-time offender's conviction 

based only upon an observational case would be three months, as 

opposed to seven to twelve months for the per se violation. 

N.J.S.A. 39:4-50. 
A-0296-13T1

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notice of appeal was filed within ten days. The court did not 

provide reasons.

Defendant presents the following points on appeal:

I. The State Failed to Provide Discovery 

of Complete Alcotest Data and Repair Records 

as Required by Our Supreme Court, Thereby 

Denying Defendant's Right to Explore Whether 

Recognized Alcotest Shortcomings Affected 

the Operability of the Instrument Used to 

Test His Breath and the Result Obtained 

Therefrom.

II. The State's Failure to Provide 

Discovery of Complete Alcotest Data and 

Repair Records Warrants Either Dismissal, 

Exclusion, or Remand.

III. Defendant Requests a Jury Trial Because 

He Faces Serious Quasi-Criminal and Civil 

Consequences as a Direct Result of the 

Municipal Court Proceedings.

II.

A.

We review the action of the Law Division, not the municipal 

court. State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div. 

2011), certif. denied, 209 N.J. 430 (2012). We assess whether 

there was sufficient credible evidence in the record to support 

the Law Division's findings. State v. Johnson, 42 N.J. 146, 162 

(1964). We do not independently assess the evidence. State v. 

Locurto, 157 N.J. 463, 471 (1999). However, we exercise plenary 

review of legal conclusions that flow from established facts. 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 
A-0296-13T1

17

378 (1995). We also deem the issue of whether evidence is 

material or subject to disclosure by the State to be a "mixed 

question of law and fact." State v. Marshall, 148 N.J. 89, 185

(discussing disclosure obligations under Brady v. Maryland, 373 

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)), cert. denied, 

522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). 

Consequently, we review de novo whether the Law Division applied 

the correct standard, but defer to the court's fact finding 

unless clearly erroneous. Ibid. 

B.

The Supreme Court in Chun held that the Alcotest, using New 

Jersey Firmware version 3.11, was generally scientifically 

reliable, subject to certain ordered modifications. 194 N.J. at 

65, 150. Additionally, its results were admissible to prove a 

per se violation of N.J.S.A. 39:4-50. Ibid. To demonstrate the 

device's proper working order, the Court required the State to 

introduce into evidence so-called core foundational documents: 

(1) the most recent Calibration Report prior 

to a defendant's test, including control 

tests, linearity tests, and the credentials 

of the coordinator who performed the 

calibration; 

(2) the most recent New Standard Solution

Report prior to a defendant's test; and 

(3) the Certificate of Analysis of the 0.10 

Simulator Solution used in a defendant's 

control tests.
A-0296-13T1

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[Chun, supra, 194 N.J. at 154.]

In order to enable the defendant to determine whether the 

device was in working order, or whether there was a flaw in the 

process, the Court ordered the State to disclose certain other 

foundational documents. However, the State was not required to 

introduce these non-core foundational documents into evidence in 

order to establish admissibility. These non-core foundational 

documents include: 

(1) New Standard Solution Report of the most

recent control test solution change, and the 

credentials of the operator who performed 

that change; 

(2) Certificate of Analysis for the 0.10 

percent solution used in that New Solution 

Report; 

(3) Draeger Safety Certificate of Accuracy 

for the Alcotest CU34 Simulator; 

(4) Draeger Safety Certificate of Accuracy 

for the Alcotest 7110 Temperature Probe; 

(5) Draeger Safety Certificate of Accuracy 

for the Alcotest 7110 Instrument; 

(6) Calibration Records, including control 

tests, linearity tests, and the credentials 

of the coordinator who performed the 

calibration; 

(7) Certificate of Analysis for the 0.10 

percent solution used in the calibration 

control test; 

(8) Certificate of Analysis for the 0.04, 

0.08, and 0.16 percent solutions used in the 

calibration linearity test; 
A-0296-13T1

19

(9) New Standard Solution Report, following 

the most recent calibration; 

(10) Draeger Safety Certificates of Accuracy 

for the Simulators used in calibration;

(11) Draeger Safety Certificate of Accuracy 

for the Alcotest 7110 Temperature Probe used 

in calibration; and 

(12) Draeger Safety Ertco-Hart Calibration 

Report . . . .

13

[Id. at 153.]

Although the Court required disclosure of the twelve 

categories of non-core foundational documents, it held "they are 

not fundamentally a part of demonstrating that the particular 

device was in good working order." Id. at 144-45. In some 

respects, these non-core foundational documents "are tests of 

tests and, therefore, are too attenuated to require that they be 

admitted as part of the evidence." Id. at 144. The Court held 

that a defendant may conduct further discovery if these 

documents raise questions about the device's working order. 

"[I]n the event that any defendant perceives of an irregularity 

in any of these documents that might affect the proper operation 

of the device in question, timely issuance of a subpoena will 

 

13 We subsequently held that a temperature probe manufactured by 

Control Company was acceptable. State v. Holland, 423 N.J. 

Super. 309, 319 (App. Div. 2011).
A-0296-13T1

20

suffice for purposes of protecting that defendant's rights." 

Id. at 144 n. 47.

We held in State v. Maricic, 417 N.J. Super. 280, 288 (App. 

Div. 2010), that the list of twelve documents that the State 

must routinely disclose under Chun should not be viewed to limit 

or preclude other discovery. Instead, requests for additional

discovery must be viewed in light of general principles 

governing discovery in municipal court, and the Chun Court's 

observations regarding the relevance of certain documents. 

Discovery in the municipal court is governed by Rule 7:7-7. 

That rule entitles a defendant to secure upon request "all 

relevant material." The rule sets forth a list of items 

substantially similar to those identified in Rule 3:13-3(b), 

governing criminal cases in the Law Division. However, "[o]ur 

courts have applied a narrower concept of 'relevant' discovery 

in DWI cases, which are quasi-criminal in nature, than in fullfledged criminal cases." State v. Carrero, 428 N.J. Super. 495, 

507 (App. Div. 2012). A DWI defendant's "right to discovery 

. . . is limited to items as to which 'there is a reasonable 

basis to believe will assist a defendant's defense.'" Ibid. 

(quoting State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 

1990)). 
A-0296-13T1

21

A defendant is not entitled to information that "merely 

could lead to other information that is relevant." Ibid.

(citing Maricic, supra, 417 N.J. Super. at 284, and Ford, supra, 

240 N.J. Super. at 48). Discovery "must be relevant in and of 

itself." Carrero, supra, 428 N.J. Super. at 508. "However, at 

least with respect to certain classes of information," including 

repair records, "a DWI defendant need not have actual knowledge 

of the facts supporting the contentions that underlie his 

discovery requests." Ibid. 

Although there is no general constitutional right to 

discovery even in criminal cases, Weatherford v. Bursey, 429 

U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977) (there is 

no general constitutional right to discovery in a criminal 

case); State v. Marshall, supra, 148 N.J. at 269, the State is 

obliged under due process principles to disclose exculpatory 

evidence. See Brady, supra, 373 U.S. at 87. Suppression of 

such evidence violates due process. State v. Martini, 160 N.J.

248, 268 (1999). Brady has been applied to the trial of quasicriminal motor vehicle offenses. Carrero, supra, 428 N.J. 

Super. at 507-08. 

"In order to establish a Brady violation, the defendant 

must show that: (1) the prosecution suppressed evidence; (2) the 

evidence is favorable to the defense; and (3) the evidence is
A-0296-13T1

22

material." Martini, supra, 160 N.J. at 268. Evidence is 

material "if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different." State v. Knight, 145 

N.J. 233, 246 (1996) (internal quotation marks and citation 

omitted). 

Exculpatory evidence is treated differently from merely 

potentially useful evidence. Suppression of requested

exculpatory evidence violates due process, regardless of the 

prosecution's good faith. Id. at 245; George v. City of Newark, 

384 N.J. Super. 232, 243 (App. Div. 2006). However, "[w]ithout 

bad faith on the part of the State, 'failure to preserve 

potentially useful evidence does not constitute a denial of due 

process of law.'" Ibid. (quoting Arizona v. Youngblood, 488 

U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988)); 

see also State v. Mustaro, 411 N.J. Super. 91, 102-103 (App. 

Div. 2009). Where evidence has been destroyed, the court must 

focus on "(1) whether there was bad faith or connivance on the 

part of the government, (2) whether the evidence . . . was 

sufficiently material to the defense, [and] (3) whether [the] 

defendant was prejudiced by the loss or destruction of the 

evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. 

Div.), certif. denied, 101 N.J. 335 (1985). 
A-0296-13T1

23

Consistent with these principles, we have held that some 

repair records of a breath test device are discoverable. We 

stated in Ford, supra, 240 N.J. Super. at 51, that "information 

concerning . . . [a] particular [Breathylzer's] state of repair"

was relevant and discoverable. But, the "routine production of 

[a device's] entire repair record . . . without appropriate time 

limitations would be unreasonable." Id. at 51-52. We also held 

in Maricic that the trial court erred in denying, in its 

entirety, a defendant's request for repair records of an 

Alcotest device, noting that the Chun Court observed that repair 

records were "'potentially relevant.'" 417 N.J. Super. at 285 

(quoting Chun, supra, 194 N.J. at 145 n.48). Cf. State v. 

Green, 417 N.J. Super. 190, 202-03 (App. Div. 2010) (stating 

that repair record of speed radar device was discoverable).

The trial court in Maricic also erred in denying a request 

for downloaded data. 417 N.J. Super. at 286. We noted that the 

Chun Court ordered the State to create a database of downloaded 

Alcotest results. Ibid. (citing Chun, supra, 194 N.J. at 153). 

We concluded that implicit in the court's order was that the 

downloaded data available through the database was relevant. 

Id. at 287.

In this case, defendant seeks repair records and downloaded 

data that are not in the State's possession. The data defendant
A-0296-13T1

24

seeks was erased. The requested repair records are the results 

of Dräger's tests, performed when it serviced the Alcotest. 

Dräger either possesses them, or destroyed them.

The State is not obliged to produce testing-related 

documents unless they "are within the possession, custody or 

control of the prosecutor." R. 3:13-3(b)(1)(C); R. 7:7-7(b)(4). 

For example, evidence in the control of a crime victim —

notwithstanding the victim's close cooperation with the 

prosecution — is not within the prosecutor's "possession, 

custody or control." State ex rel. A.B., ___ N.J. ___ (2014)

(slip op. at 24) (citing R. 3:13-3(b)(1)(E)). There is no 

evidence in the record to indicate that the State controls the 

repair-related data generated by Dräger. Consequently, it was 

defendant's obligation to subpoena those records from Dräger.14

See Chun, supra, 194 N.J. at 144 n.47 (stating that "timely 

issuance of a subpoena will suffice for purposes of protecting 

. . . [a] defendant's rights" where irregularity in a produced 

document is perceived); see also State v. Holland, 422 N.J. 

Super. 185, 199 n.7 (App. Div. 2011).

By the same token, we find no Brady violation in connection 

with defendant's request for Dräger's repair-related test 

 

14 We do not address what relief defendant could obtain if Dräger 

still possessed the test data, but failed to comply.
A-0296-13T1

25

results. A prosecutor's obligation under Brady extends to 

documents of which it is actually or constructively aware, 

including documents held by other law enforcement personnel who 

are part of the prosecution team. Kyles v. Whitley, 514 U.S.

419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995); 

State v. Nelson, 155 N.J. 487, 499-500 (1998), cert. denied, 525 

U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). However, 

the Brady disclosure obligation does not extend to documents 

held by a private contractor; nor is the State required to ask a 

private contractor to produce data for a defendant's potential 

use. See, e.g., United States v. Gray, 648 F.3d 562, 566-67

(7th Cir. 2011) (holding, in Medicaid fraud case, that Brady did 

not extend to State's outside Medicaid billing contractor), 

cert. denied, ___ U.S. ___, 132 S. Ct. 1056, 181 L. Ed. 2d 775 

(2012).

In any event, we are unconvinced that the diagnostic tests 

are material. The record evidence indicates that the device was 

sent to Dräger in 2008 and 2011 for replacement of the fuel 

cell. In connection with the 2008 repair, defendant's expert 

explained that the fuel cells often needed replacement when a 

device had been "shelved" after delivery to its intended user. 

After the device was returned with the replaced fuel cell, the 

State performed various tests designed to ascertain it was in 
A-0296-13T1

26

working order. Although the expert minimized the significance 

of these tests, he provides no persuasive basis to conclude that 

Dräger's test results could have demonstrated a failure of the 

device to operate properly, notwithstanding the subsequent 

testing by the State that indicated that it was operating 

properly.

Turning to the downloaded data, we recognize that some of 

this information was only in the State's possession in 

electronic format. But it was deleted in good faith. 

Therefore, we find no discovery or Brady violation.

Rule 7:7-7 applies to documents in the State's possession. 

The destruction of discoverable evidence post-indictment 

generally violates Rule 3:13-3. State v. Dabas, 215 N.J. 114, 

138 (2013). Similarly, the State is generally not free to 

destroy discoverable evidence post-complaint under Rule 7:7-7. 

The ninth data download of the device used by defendant occurred 

in September 2012, after defendant's breath test. 

Nonetheless, we are unpersuaded by defendant's expert 

opinion that the deleted information is relevant under Rule 7:7-

7. Although the expert opines that complete data is essential, 

defendant fails to demonstrate how the few items of data, not 

available in the paper disclosures, would demonstrate the device 

was not reliable, when all other evidence pointed to the 
A-0296-13T1

27

contrary conclusion. We note that Dr. Brettell's own comparison 

of data stored in devices, and paper records, discovered no 

discrepancies.

Our decision in Maricic, supra, does not compel a different 

result. First, Maricic did not analyze the specific elements of 

data at issue in this case. Second, Maricic relied on its 

understanding that the requested downloaded data were to be 

included in the statewide database ordered in Chun. See

Maricic, supra, 417 N.J. Super. at 286-87 (citing Chun, supra, 

194 N.J. at 90, 153). 

However, the Court has since held that the existing State 

database — despite the data erasures — satisfies the Court's 

order. State v. Chun, 215 N.J. 489, 491-92 (2013) (Chun II). 

In Chun II, movants sought an order in aid of litigant's rights 

declaring the database inadequate. Id. at 489. Movants 

claimed, among other things, that the database did not include 

the calibration, control and linearity files that, as we discuss 

above, have been routinely erased since 2006. 

In response, the State presented the Court with an 

affidavit of Dr. Baum, the current director of the State 

Police's Office of Forensic Sciences, whose 2009 memorandum we 

quoted above. Dr. Baum stated that in 2009, he reviewed Dr. 

Brettell's 2006 decision to erase the three electronic 
A-0296-13T1

28

calibration data files identified as 21NJ3-11, 22NJ3-11 and 

58NJ3-11. Affidavit of Howard J. Baum, Ph.D., May 23, 2013. 

Dr. Baum confirmed that the routinely erased data contained

certain records not present in the printed records. But, he 

concluded, as did Dr. Brettell before him, that the erased 

records were irrelevant:

[N]one of these data records affect the 

accuracy of the results, they are not the 

results of the calibration, and they have

nothing to do with the actual results of the 

operation and calibration of the 

instrument. . . . [N]one of the data that 

[are] cleared but not printed shows that 

there is a problem with the 

instrument. . . . [A]ll pertinent data 

demonstrating the proper working order of 

the instrument [are], in fact, printed on 

the hard copy documents. Therefore, . . . 

clearing the files does not [a]ffect the 

scientific reliability of the Alcotest, and 

. . . the data that [are] cleared and not 

printed [are] irrelevant and unnecessary to 

determine whether the instrument is 

operating properly.15

The Court implicitly agreed, and denied movants' request to 

find the database deficient. Chun II, supra, 215 N.J. at 492. 

In its order, the Court acknowledged defendants' claim that the 

database was noncompliant with Chun I because it was, among 

other things, "incomplete as to certain types of files and 

calibration cycles." Chun II, supra, 215 N.J. at 489. Noting 

 

15 Pursuant to N.J.R.E. 201(b)(4), we take judicial notice that 

Dr. Baum presented this opinion to the Court. 
A-0296-13T1

29

the State's response in part through Dr. Baum's affidavit, the 

Court then "concluded that the centralized statewide database is 

fully in compliance with this Court's Order of March 17, 2008, 

in all respects." Id. at 491. Although the Court's order in 

Chun II was unaccompanied by a written opinion, it is binding 

precedent, as it represents the Court's considered disposition 

of issues presented after plenary review. See In re Osborne, 76 

F.3d 306, 309 (9th Cir. 1996) (stating "the doctrine of stare 

decisis concerns the holdings of previous cases, not the 

rationales" and "judicial precedent attaches a specific legal 

consequence to a detailed set of facts in an adjudged case or 

judicial decision") (internal quotation marks and citation 

omitted).

Applying the principles set forth above, we also find no 

violation of Brady. The deleted data were routinely erased

because of a firmware bug. There is no allegation, let alone 

record evidence, that the erasures were accomplished in bad 

faith. See Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct.

1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004) (stating that 

defendant bears burden to prove bad faith). Consequently, 

defendant must demonstrate more than that the information was 

"potentially useful." See George, supra, 384 N.J. at 243
A-0296-13T1

30

(internal quotation marks and citation omitted). Defendant must 

demonstrate that the deleted data was exculpatory. 

However, for the same reasons that the missing data is not 

"relevant" under Rule 7:7-7, it falls short of being exculpatory 

or material. Defendant has not demonstrated that there was a 

"reasonable probability" that had the missing data been 

produced, "the result of the proceeding would have been 

different." Knight, supra, 145 N.J. at 246 (internal quotation 

marks and citation omitted). Although he obviously could not 

analyze data he did not receive in any form, defendant failed to 

demonstrate how the type of information sought could, in a 

hypothetical case, demonstrate that a device was unreliable, 

despite all the disclosed evidence to the contrary. 

III.

Defendant argues that he was entitled to a jury trial, 

notwithstanding our Court's determination in State v. Hamm, 121 

N.J. 109, 129-30 (1990), cert. denied, 499 U.S. 947, 111 S. Ct.

1413, 113 L. Ed. 2d 466 (1991), that there is no jury trial 

right for DWI prosecutions. Defendant argues that changes in 

the DWI statutes since Hamm was decided compel a different 

result. We are unconvinced. 

Defendant argues that he is subject to incarceration for as 

much as seventy-seven days — thirty days for his first DWI 
A-0296-13T1

31

offense, N.J.S.A. 39:4-50 (a)(1)(ii); sixty days on the reckless 

driving charge, N.J.S.A. 39:4-96; and fifteen days on the 

failure to maintain a lane charge, N.J.S.A. 39:4-88(b); plus up 

to forty-eight hours in the IDRC. He also asserts when 

insurance surcharges are added, the potential monetary 

consequence of conviction could exceed $6000.

Even assuming for argument's sake the theoretical 

possibility of such a consecutive sentence, that does not compel 

a jury right; rather, the denial of a jury trial compels a 

limitation of the sentence. Where a DWI defendant is exposed to 

an aggregate sentence of more than six months as a result of 

related charges, "and the defendant is not offered a jury trial, 

the sentences may not total more than six months." State v. 

Federico, 414 N.J. Super. 321, 330 (App. Div. 2010) (internal 

quotation marks and citation omitted); see also Blanton v. N. 

Las Vegas, 489 U.S. 538, 543, 109 S. Ct. 1289, 1293-94, 103 L. 

Ed. 2d 550, 556-57 (1989) (stating that DWI offender exposed to 

sentence of six months or less is not entitled to a jury trial). 

Also, the potential monetary consequences are not so onerous as 

to compel a right to a jury. See Id. at 544-45 (noting that the 

possible $1000 fine was well below the $5000 level set by 

Congress for a "petty offense," and did not compel jury trial). 
A-0296-13T1

32

IV.

Although we affirm defendant's conviction, we express our 

concern that both the municipal court and the Law Division 

stayed defendant's license suspension pending appeal in this 

matter without providing any statement of reasons. We do not 

question the authority of either the municipal court, or the Law 

Division, to stay the imposition of all or part of a sentence. 

See R. 7:13-2 ("Notwithstanding R. 3:23-5, a sentence or a 

portion of a sentence may be stayed by the court in which the 

conviction was had or to which the appeal is taken on such terms 

as the court deems appropriate."); R. 3:23-5 (stating that 

pending appeal after the trial de novo, the court may stay a 

fine, costs, a forfeiture, or probation, and a defendant shall 

be admitted to bail in accordance with standards set forth in 

Rule 3:26-1(a)). 

Nonetheless, an application for a stay pending appeal is 

governed by the three-part standard in Crowe v. De Gioia, 90 

N.J. 126 (1982). Garden State Equality v. Dow, 216 N.J. 314, 

320 (2013). 

A party seeking a stay must demonstrate that 

(1) relief is needed to prevent irreparable 

harm; (2) the applicant's claim rests on 

settled law and has a reasonable probability 

of succeeding on the merits; and (3) 

balancing the "relative hardships to the 

parties reveals that greater harm would 
A-0296-13T1

33

occur if a stay is not granted than if it 

were."

[Ibid. (quoting McNeil v. Legis. 

Apportionment Comm'n, 176 N.J. 484, 486 

(2003) (LaVecchia, J., dissenting)).]

In cases of public importance, the public interest must also be 

weighed. Id. at 321.

A court should not stay the suspension of driving 

privileges of a person convicted of DWI or refusal without 

considering the factors governing the issuance of a stay. With 

respect to the second Crowe factor, the Court should consider 

whether the appeal involves a substantial question, and whether 

there is a reasonable prospect that defendant may prevail and 

avoid license suspension. In this case, for example, defendant 

sought a stay based on an argument that had been rejected 

multiple times by our court, albeit in unpublished decisions. 

Moreover, both the municipal court and Law Division judges were 

satisfied that defendant had violated N.J.S.A. 39:4-50 based on 

the observational case. The State's stipulation that the 

observational case was insufficient did not bind the court. 

State v. Wesner, 372 N.J. Super. 489, 495 (App. Div. 2004), 

certif. denied, 183 N.J. 214 (2005). Consequently, a conviction 

with at least a three-month suspension was mandated, see

N.J.S.A. 39:4-50(a)(1)(i), regardless of the outcome of the 

appeal. 
A-0296-13T1

34

Our drunk driving laws are designed to combat the 

"senseless havoc and destruction caused by intoxicated drivers." 

State v. O'Driscoll, 215 N.J. 461, 472 (2013) (internal 

quotation marks and citation omitted). Our Supreme Court has 

adopted directives to ensure the swift prosecution of those 

charged, and the swift punishment of those convicted, to further 

the public goals of traffic safety. See State v. Cahill, 213 

N.J. 253, 269-70 (2013) (discussing time-goals for prosecution 

of DWI cases). 

Although defendant is a first-offender, the court should be 

mindful of the possibility that a defendant may re-offend during 

a stay, and of the consequent risk to the public. See State v. 

Henry, 418 N.J. Super. 481, 494-95 (Law Div. 2010) (noting a 

National Highway Traffic Safety Administration study's finding 

that "'each prior DWI conviction increases an offender's 

recidivism rate by 10 percent per year'"). The record does not 

include defendant's driver's abstract, to reflect whether he had

a history of violating the motor vehicle laws; nor does the 

record indicate whether he had a record of substance or alcohol 

abuse that may have heightened the risk of him re-offending 

during the stay. There is no certification from defendant 

setting forth the alleged harms he would suffer without a stay. 
A-0296-13T1

35

There is no indication that the trial court sought or considered 

such evidence before granting the stay.

We appreciate that the loss of a driver's license is a 

substantial sanction. Although a DWI defendant sentenced to a 

term of incarceration by the Law Division is eligible for bail, 

Rule 3:23-5, the stay of the license suspension should not be 

automatic. Moreover, as reflected in Rule 7:13-2, a court that 

determines to impose a stay may do so upon appropriate 

conditions. 

For example, if a convicted defendant demonstrates that the 

loss of driving privileges pending appeal would unavoidably and 

significantly interfere with his or her ability to maintain 

employment, and a stay is otherwise warranted under the Crowe

factors, then the court may consider conditioning the stay by 

limiting the defendant's driving to that required by employment. 

The court may also condition a stay upon the verified 

installation of an ignition interlock device, which would 

provide some assurance that the defendant would not reoffend 

pending appeal. We leave it to the discretion of the trial 

courts imposing stays to develop other appropriate terms or 

conditions, reasonable under the circumstances, supported by 

competent evidence, and based on expressed findings of fact and 

conclusions of law.
A-0296-13T1

36

Affirmed. The stay of the license suspension is vacated.