One of the first things I discuss with my DWI and DUI client is the procedural aspects of a NJ DWI case with regard to discovery issues. Discovery is the information that the state intends to rely upon at the time of trial and the information that the state is required to provide by law. It includes items such as police reports, Alcotest instrument certifications, digital data from the instrument, video and audio recordings, etc. Many of the required discoverable items pertain to the Alcotest instrument used to test the defendant.
Failure to produce these items in a “timely” fashion can result in the suppression of the Alcotest readings or possibly a dismissal of the case all together. I put timely in quotes because the timeliness is really predicated upon a number of different factors. But one of the most important factors is how “on top” of the case your attorney is. Timely and frequent request for missing items puts the state on notice that you are attempting to prepare your case and a unable to do so because of the state’s failure to provide important information.
When it comes time to make a motion, a prepared DWI lawyer will be able to tell the court that he had given the state notice well in advance that the discovery was missing and had followed all the proper procedures to obtain it prior to filing the motion.
Letters sent the day before court for missing discovery or the week the case is scheduled are not usually effective because the state can claim it did not have enough notice. The judge hearing the case will likely agree and provide the state with even more time to produce discovery.
In this most recent case I handled, I diligently notified the state on numerous different occasions about missing required discovery. I did so in writing and fully documented. When it came time for me to make my motion, the court was in agreement that the state had plenty of notice and the items should have been provided by the trial date. Therefore, the court suppressed the Alcotest BAC readings.
This drastically reduced my client’s exposure because she was charged with a second tier offense with a high reading. She was facing the possibility of a 1 year loss of license. With the suppression, the most she can face now is three months and this makes the case a better case to go to trial on.