STATE OF NEW JERSEY v. MARIO MACRI (2014)

The State appeals, by leave granted, from an order entered by the Law Division on July 8, 2013, which suppressed the evidence of the results of defendant's Alcotest breath examination.   We reverse.

On September 24, 2011, a New Jersey State Trooper stopped defendant in Clifton, New Jersey, for motor vehicle violations.   The Trooper asked defendant to perform various field sobriety tests.   Thereafter, the Trooper placed defendant under arrest and transported him to the State Police barracks, where defendant's breath was examined using an Alcotest machine.   Defendant was charged with driving while intoxicated (DWI), contrary to N.J.S.A. 39:4–50.

Trial in the matter began September 24, 2012, and continued on November 14, 2012.   During the trial, defendant objected to the admission of the results of his Alcotest examination.   Defendant's counsel noted that, in a letter dated March 14, 2012, Captain Timothy G. Schaub, Bureau Chief of the State Police Criminal Justice Records Bureau, stated that there had been a motherboard ¹ failure, and as a result, some digital information from the machine used for defendant's test was not stored.   Thus, the State was unable to provide defendant with data concerning the operation of the machine from August 19, 2011 to September 6, 2012.

Defendant's counsel argued that, because the State had not provided him with the data concerning the breath tests on the machine from the last calibration of the machine to the time defendant was tested, defendant could not evaluate whether defendant's test results were reliable.   Counsel argued that the State had an obligation to produce the data and, having failed to do so, could not introduce defendant's Alcotest results into evidence.   The municipal court judge agreed and granted defendant's motion to suppress.

The State filed an interlocutory appeal to the Law Division, and further proceedings in the municipal court were stayed pending that appeal.   The Law Division heard argument on the appeal on June 26, 2013.   The court placed its decision on the record on July 8, 2013.

The court stated that the odds that defendant would find anything of value in the materials was “probably very remote,” but if there was “a one in 10,000 shot” that the materials would “knock [the results] out,” defendant was entitled to that “shot.”   Without the information, defendant does not “get that opportunity” and “the machine would have sealed his fate.”   The court concluded that the Alcotest results must be suppressed.

The court memorialized its decision in an order dated July 8, 2013.   We thereafter granted the State's motion for leave to appeal.

The State argues that the trial court erred by suppressing the Alcotest results.   The State concedes that the machine malfunctioned and failed to store data for a period prior to defendant's test.   The State also concedes that it is required to provide the downloads of Alcotest data to defendants in DWI prosecutions but argues that, under the applicable standard for lost evidence, suppression of the Alcotest results was not warranted in this case.   We agree.

In State v. Chun, 194 N.J. 54, 64–66 (2008), the Court considered whether the Alcotest 7100 MKIII–C manufactured by Draeger Safety Diagnostics, Inc. (Draeger), using New Jersey Firmware version 3.11, was scientifically reliable, and could be utilized to prove a per se violation of N.J.S.A. 39:4–50.   The Court explained that the Alcotest measures an individual's blood alcohol content (BAC) through breath testing, using infrared (IR) and electric chemical (EC) technology.  Id. at 78.

The Court noted that an operator waits twenty minutes before collecting the breath samples, and in this period, must observe the test subject.  Id. at 79.   The device's software prompts the operator through a testing sequence.   Id. at 80.   The Court explained that the

[testing] process begins when the operator has typed identifying information into the machine through a series of questions and prompts.   The device then starts and automatically samples the room air to determine if there are chemical interferents in the room.   This is known as a blank air test.   Assuming that there are none, the machine then uses its attached wet bath simulator to heat a solution and produce a vapor sample from a control test solution with a known alcohol concentration of 0.10, which is then measured using IR and EC technology.   In order to be valid, the control test, in accordance with currently-programmed firmware, must produce results between 0.095 and 0.105.   If the results do not identify the known sample within the defined parameters, the device is programmed so that the test cannot proceed.   If the machine is working properly as demonstrated by the control test, then the instrument performs a second blank air test, again using room air to purge the test sample out of the chamber.

[Ibid. (footnote omitted).]

If the control test results are within the established parameters, the operator collects two breath samples.  Id. at 80–81.   A third test is conducted if the results of the first test are out of the accepted range of tolerance with the measurements for the second breath test.  Id. at 81.   The machine reports the results, after which a second control test and final blank test are performed.  Ibid.

The results of the test sequence are set forth in the Alcohol Influence Report (AIR).  Id. at 82.   The AIR

contains the test subject's identifying information, date, time, and test results for each stage of the procedure.   Each AIR includes a variety of other information relevant to the test, including the serial number of the device used in the test, dates of and file numbers for calibration and linearity checks, and solution control lot and bottle numbers.   The operator must retain a copy of the AIR and give a copy to the arrestee.

[Ibid.]

The Alcotest machines are calibrated by attachment to an external simulator that uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breaths.  Id. at 84.   The different concentrations are exposed to the machine's IR and EC mechanisms to determine whether the device is able to identify the samples accurately within the accepted range of tolerance.  Ibid. This is known as the linearity test.   Ibid. The machine's coordinator is thereby able to determine if the machine is calibrated correctly.  Ibid. At the time the machines are calibrated, the device's test information is downloaded onto two compact discs.  Ibid.

The Court held that the Alcotest was generally scientifically reliable and could be used, with certain modifications, to establish a per se violation of N.J.S.A. 39:4–50.  Id. at 65.   The Court ordered that the State inspect and recalibrate all Alcotest devices every six months, rather than annually, which had been the practice.  Id. at 153.   The Court also ordered that, in discovery, the State must provide defendants in DWI cases with twelve foundational documents, specifically:

(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;

(9) New Standard Solution Report, following the most recent calibration;

(10) Draeger Safety Certificate 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[.]

[Ibid.]

The Court further ordered that the State must introduce the following core foundational documents into evidence in order to establish the Alcotest instrument used for a defendant's examination was in good working order:

(1) the most recent Calibration Report prior to 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 defendant's control tests.

[Id. at 154.]

In addition, the Court accepted the Special Master's recommendation that the “State should create and maintain a centralized database of information regularly uploaded through modem[.]”  Id. at 90.   The Court also accepted the Special Master's recommendation that defendants in DWI cases have access to the centrally collected and maintained data on their own cases, as well as scientific data compiled on matters involving others, with redactions to shield personal information, as appropriate.  Ibid.

Thus, the Court ordered the State to create and maintain a “centralized statewide database,” that would include “downloaded Alcotest results [.]”  Id. at 153.   The State was ordered to make that data available to defendants and counsel, after making appropriate redactions of personal identification, as needed.  Ibid.

In State v. Maricic, 417 N.J.Super.   280 (App.Div.2010), the defendant was charged with DWI and certain motor vehicle violations.  Id. at 282.   Among other things, the defendant sought discovery of the downloaded Alcotest results from the device used for his breath tests, from the date of the machine's last calibration until his breath examination.  Ibid. The municipal court denied the application, and the Law Division also denied discovery.  Id. at 282–83.

We reversed.  Id. at 288.   In our opinion, we noted that in April 2008, the State's Director of the Division of Criminal Justice had issued a memorandum to all municipal prosecutors and law enforcement executives in which he stated that the State had not yet created a statewide system of regularly-uploaded Alcotest data.  Id. at 286.   The Director noted, however, that each local police department had discs of Alcotest data, and a hard copy could be created, redacting certain personal information.  Id. at 287.

We noted that the information sought was not one of the foundational documents that should be provided to defense counsel.  Id. at 288.   We held, however, that the defendant was entitled to discovery of the downloaded Alcotest data, because that evidence could be used to test the reliability of the results.   Ibid.

Here, the trial court erroneously concluded that Chun and Maricic required suppression of defendant's Alcotest results.  Chun merely held that the State should maintain and make available to defendants the database of downloaded Alcotest results.  Chun, supra, 194 N.J. at 90.   Furthermore, in Maricic, we determined that the defendant could obtain discovery of the downloaded Alcotest results from the machine used for his test, from the time of the last calibration to the defendant's test.  Maricic, supra, 417 N.J.Super. at 286.

Thus, Chun and Maricic did not address the specific issue presented in this case, which is whether suppression is required where the State has provided defendant with the AIR from his tests and the foundational documents, none of which showed any testing malfunction.   The State could not provide data of other Alcotest results from the machine used for the test because of a machine malfunction.   Therefore, the trial court erred by holding that Chun and Maricic compel suppression of the Alcotest results in this case.

The trial court also reasoned that suppression of the Alcotest results was required because defendant had lost his “shot” at challenging the reliability of the results of his breath exam.   However, the court's reasoning was erroneous.

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where [it] is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [State].”   Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L. Ed.2d 215, 218 (1963).   To establish a Brady violation, the defendant must show “(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material.”   State v. Parsons, 341 N.J.Super. 448, 454 (App.Div.2001) (citations omitted).

“Evidence is considered material for Brady purposes, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”  Id. at 455 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L. Ed.2d 481, 494 (1985)).  “A ‘reasonable probability’ is one that is ‘sufficient to undermine confidence in the outcome’ of the trial.”  Ibid. (quoting Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L. Ed.2d at 494).

Here, defendant has not shown a violation of Brady, which applies when the prosecution possesses but fails to disclose material exculpatory information.   Illinois v. Fisher, 540 U.S. 544, 547, 124 S.Ct. 1200, 1202, 157 L. Ed.2d 1060, 1066 (2004).  “[T]he Due Process Clause ‘requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ ”  Ibid. (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L. Ed.2d 281, 289 (1988)).

The prosecution's “failure to preserve this ‘potentially useful evidence’ does not violate due process ‘unless a criminal defendant can show bad faith on the part of the police.’ ”  Id. at 547–48, 124 S.Ct. at 1202, 157 L. Ed.2d at 1066 (quoting Youngblood, supra, 488 U.S. at 58, 109 S.Ct. at 337, 102 L. Ed.2d at 289) (emphasis in Fisher ).   That test applies even if the lost evidence “provides a defendant's ‘only hope for exoneration.’ ”  Id. at 548, 124 S.Ct. at 1202, 157 L. Ed.2d at 1066 (citation omitted).

Here, there is no evidence that the State acted in bad faith.   As we have explained, the State could not provide the requested data because the machine's motherboard failed to store it.   Furthermore, the lost data was only potentially useful.   Indeed, the Law Division judge noted that the probability that the lost data would provide defendant with anything of value was “very remote.”   Thus, the State's inability to produce the lost data does not warrant suppression of defendant's Alcotest results.

The decision in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L. Ed.2d 413 (1984), supports our conclusion that suppression of defendant's Alcotest results was not required in this case.   In Trombetta, the defendants were convicted of driving while intoxicated, based on results of their breath tests.  Id. at 482, 104 S.Ct. at 2530, 81 L. Ed.2d at 418.   The defendants argued that the State violated their right to due process by failing to preserve the breath samples, which precluded them from conducting their own tests to impeach the breath-test results.  Id. at 482–83, 104 S.Ct. at 2530–31, 81 L. Ed.2d 418.

The Court noted that there was no evidence that the State acted in bad faith or consciously acted to suppress exculpatory evidence.  Id. at 488, 104 S.Ct. at 2533, 81 L. Ed.2d at 422.   The Court held that the State's obligation to preserve evidence was limited “to evidence that might be expected to play a significant role in the suspect's defense.”  Id. at 488, 104 S.Ct. at 2534, 81 L. Ed.2d at 422.   The Court said that this principle encompassed evidence whose exculpatory value was obvious before it was destroyed, and the evidence was of the type that comparable evidence would not reasonably be available.   Id. at 489, 104 S.Ct. at 2534, 81 L. Ed.2d at 422.

The Court held that it was highly unlikely that the breath samples would have been exculpatory, in view of the established accuracy of the State's breath-testing equipment.  Id. at 489, 104 S.Ct. at 2534, 81 L. Ed.2d at 422.   Moreover, the defendants had an adequate opportunity to test the results of the breath test, through inspection, expert testimony and cross-examination.   Id. at 490, 104 S.Ct. at 2534–35, 81 L. Ed.2d at 423.

Here, there is no evidence of bad faith on the part of the State, and the foundational documents establish that the Alcotest machine was in good working order when defendant's breath was tested.   The malfunction here related to a motherboard failure, resulting in lost information concerning other tests.   There is no evidence that this problem affected the ability of the machine to produce reliable test results.   We cannot assume that the lost data would have provided defendant with a basis to challenge his test results.

Reversed and remanded to the municipal court for further proceedings in conformity with this opinion.   We do not retain jurisdiction.

FOOTNOTES

FN1. The motherboard is the main board of a computer containing the circuitry for the central processing unit.   Webster's II New College Dictionary 732 (3d ed.2005)..  FN1. The motherboard is the main board of a computer containing the circuitry for the central processing unit.   Webster's II New College Dictionary 732 (3d ed.2005).

PER CURIAM