In defending a NJ DWI (DUI), one of the first things a DWI defense attorney will do is demand that the prosecutor turn over all “discovery.” Discovery simply means evidence. All evidence that the state has in its possession must then be handed over to the defense for review. It is important to keep in mind that this includes both “inculpatory” and “exculpatory” evidence.
In other words, even if the evidence would only help the DWI defendant, the state must turn it over. One crucial piece of evidence that may help a DWI defendant is the maintenance and repair records of the specific Alcotest (breathalyzer’s replacement) machine used to test the suspects blood alcohol content (BAC).
In my own DWI defense practice, I routinely demand all such records as part of my initial discovery request. The state often provides nothing, asserting that no such records exist. Alternatively, the state will offer “packing slips” which are virtually useless as they seldom disclose what defects or malfunctions the machine may show.
The New Jersey Superior Court recently held in State v. Maricic that the state must turn over all maintenance and repair records in a DWI prosecution, if requested by the defendant. While this holding is still new, It can easily be predicted that the state will continue to fail to keep these records, thereby by passing the court’s ruling.