Appellate Division Orders Release of Alcotest Raw Data in DWI Discovery

By Charles Toutant
New Jersey Law Journal
September 16, 2009

A New Jersey appeals court says that a DWI defense lawyer is entitled in discovery to the raw data stored on the Alcotest, the state's new blood-alcohol-testing device.

Appellate Division Judge Edith Payne on Monday reversed an Atlantic County trial judge's order that denied Evan Levow access to the data in State v. Aaron Reardon, A-5683-08. Levow sought downloaded data from all tests performed on the specific Alcotest machines used to test his clients.

Payne's order, which granted leave to appeal cited an April 29, 2008, memo to municipal prosecutors from state Division of Criminal Justice Director Gregory Paw that authorized the release of stored Alcotest data in discovery.

Defense lawyers began seeking the raw Alcotest data in discovery in light of the state Supreme Court's requirement in State v. Chun, 194 N.J. 54 (2008), that Alcotest raw data be made publicly available, with redaction of names and other personal information.

Though the Court in Chun deemed the Alcotest scientifically reliable, Levow and other defense lawyers believe that expert examination of the raw data can uncover problems with specific machines.

The Division of Criminal Justice is preparing a statewide database to comply with that requirement, but defense lawyer have argued that the 18 months the state has spent on that project fail to comply with the Court's requirement in Chun that it be completed "forthwith."

On Feb. 3, Municipal Judge Robert Switzer of Hamilton Township denied Levow's motions for the raw data in behalf of three defendants: Aaron Reardon, Howard Bates and Stacey Reese.

While the Alcotest issues a printout with the defendant's name and blood-alcohol concentration readings, Levow sought the 310 fields of raw data recorded each time a subject is evaluated on the Alcotest.

On de novo review, Atlantic County Superior Court Judge Robert Neustadter denied the discovery motion. He said the Supreme Court's requirementof a statewide Alcotest database did not compel release of data to defendants in individual cases.

Levow took an interlocutory appeal, citing orders from judges in other counties that granted similar data requests to drunken-driving defendants.

Burlington County Assignment Judge Ronald Bookbinder ordered disclosure of the raw Alcotest data on April 14 in State v. Ischinger. Similar rulings were issued by Morris County Superior Court Judge Thomas Manahan on March 23 in State v. Hollander, Somerset County Superior Court Judge Robert Reed in State v. Kim on April 14, and Middlesex County Judge Dennis Nieves on State v. Haigh on April 26.

Levow says he is pleased with the court's decision but would have preferred it to be conveyed in a formal ruling rather than an order.