Published by New Jersey DWI Lawyer, Jeffrey Hark.
June 28, 2013, the Appellate Division affirmed the drunk driving conviction where defendant unsuccessfully sought suppression of an Alcohol Influence Report (AIR) because it was submitted after discovery ended. The defendant was appealing his August 12, 2012 conviction for violation of driving while intoxicated (DWI) pursuant to N.J.S.A. 39:4-50 and sentenced to the minimum mandatory penalties for a second offender pursuant to N.J.S.A. 39:4-50(a)(2). On May 19, 2010, defendant was stopped for speeding and the officer smelled alcohol. After a field sobriety test, the defendant was taken to the police station and given a breathalyzer. Defendant had a BAC of 0.12 percent.
Alcohol Influence Report Admitted Mid Trial
At trial the State did not timely provide complete discovery of the Alcohol Influence Report and defense council moved to have any evidence not previously provided precluded. The defense’s specific objection was that the defense was forced to supply information to the State regarding the fatal weakness to which the State was then allowed to cure the deficiency. The judge allowed the State to introduce a foundational witness and a certificate of analysis for the AIR. The Appellate Division found no legal authority for the defendant’s argument that the court was required to exclude evidence based on the State’s failure to present it timely. When evidence is admitted mid trial, there are two factors to consider: 1) did the party have the intention to mislead by not providing it earlier, and 2) is the aggrieved party prejudiced by the inability to contest the evidence because of the late notice.
Without a showing of prejudice to the defense, a blanket order to preclude further discovery is appropriate. The trial judge did not abuse his discretion by allowing the State to provide the foundational document for the AIR and the police officer to authenticate the document. The defendant did not cite any case law that requiring defense council to specify what foundational documents were lacking violates the defendant’s Fifth Amendment rights, N.J.S.A. 2A:84A-17 or N.J.R.E. 501, 502, and 503. The defendant’s argument that they assisted the State with their case because the defendant had to point out the deficiencies does not support that defense of the defendant was impaired. The defense council would not have done anything different in preparation for the case had there been a complete discovery.