Breath Test Coordinator, the court must deny the
demand.
State v. Maure, 240 N.J. Super. 269 (App. Div.
1990), aff’d o.b. 123 N.J. 457 (1991), effectively
overrules the holdings in State v. Dohme (II), 229 N.J.
Super. 49 (App. Div. 1988) on remand from State v.
Dohme (I), 223 N.J. Super. 485 (App. Div. 1988). The
Appellate Division noted that it had a factual record,
which was absent in the Dohme proceedings, and that
record was sufficient to support that spot checking of
random ampoules by trained members of the State Police
is sufficient prima facie proof that the ampoules used in
testing the defendants were properly constituted and
mixed to proper proportions. In general, and absent
specific articulable facts, additional requests for discovery
beyond that routinely provided should be denied as
lacking in relevance or materiality. The additional
discovery demands made in this matter are tantamount
to a fishing expedition, and there are no apparent facts
which support such a wide ranging demand. See also,
State v. Tull 234 N.J. Super. at 498 citing State in the
Interest of W.C., 85 N.J. 218, 221-222 (1981) and State
v. R.W., 104 N.J. 14, 28 (1986).
According to State v. Gordon, 261 N.J. Super. 462,
465-466 (App. Div. 1993), there does not appear to be
any legal obligation on the State, under the provisions of
R. 3:13-3(c) and/or R. 7:7-7(b), to create a document or
record that does not presently exist or to seek out a
document or record not in the possession of the State. Id.
at 465-466.
State v. Fox, 249 N.J. Super. 521 (Law Div. 1991),
held that in DWI cases when a trial court is faced with a
choice between a dismissal on procedural grounds versus
a trial on the merits, the general policy is to adjudicate
matters on their merits.
- Motion to Suppress, R. 7:5-2
State v. Allan, 283 N.J. Super. 622 (Law Div. 1995),
held that it was inappropriate for the municipal court to
simply conduct a pre-trial suppression motion and then
move directly to the trial on the merits and then to
prevent the defense from cross-examining the
complaining officer at trial on testimony offered by the
officer in the suppression hearing. The better practice is
to completely separate the motion to suppress
proceeding from the actual trial by starting the testimony
anew with the State’s case in chief. However, if both
counsel stipulate that the testimony from the motion to
suppress will be incorporated into the trial and counsel
are given wide latitude in cross-examination in
connection with the issues raised during the motion to
suppress such a practice may be continued.State v. Giordano, 281 N.J. Super. 150 (App. Div.
1995), held that the municipal court’s ruling on the
admission of the defendants’ Breathalyzer results was not
properly considered under the motion to suppress rule,
R. 7:4-2(f) [now R. 7:5-2], and, therefore, could not be
appealed to the Law Division following a guilty plea.
Because motions to suppress Breathalyzer results do not
generally involve constitutional claims involving the
improper collection of physical evidence, R. 3:5-7 and R.
7:4-2(f) are not implicated. The Court also concluded
that R. 3:9-3(f), which permits defendant to preserve for
appeal adverse determinations on pretrial motions with
the consent of the prosecutor, is not applicable to
municipal court proceedings and that conditional guilty
pleas are not permitted in municipal court. R. 7:4-8.In State v. Liberatore, 293 N.J. Super. 580 (Law Div.
1995), aff’d o.b., 293 N.J. Super. 535 (App. Div. 1996),
defendant had been placed under arrest and advised of his
Miranda rights. Defendant then attempted to flee onto
the porch of his home, thereby making a claim of an
unlawful pursuit under State v. Bolte, 115 N.J. 579
(1989), cert. denied 493 U.S. 936 (1989). The court in
performing a two step analysis, found the search and
seizure to be objectively reasonable as a matter of law and
based on the facts, and rejected defendant’s claim
concerning his motion to suppress by distinguishing this
case from the holdings in Bolte and Welsh v. Wisconsin,
466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).In State v. Colapinto, 309 N.J. Super. 132 (App. Div.
1998) and State v. McLendon, 331 N.J. Super. 104 (App.
Div. 2000), the Appellate Division reaffirmed the
principle that a defendant’s failure to make a pretrial
motion seeking to suppress evidence constitutes a waiver
of an objection during trial to the admission of the
evidence on the grounds the evidence was unlawfully
obtained, and this principle would apply to
constitutional claims as well. In Colapinto, the trial court
erred when it permitted a defendant to raise a suppression
issue at the trial de novo, even though the appellate court
was capable of discerning from the record that the issue
was without merit. But, in McLendon, the record did not
permit that conclusion; thus, the matter was remanded.
However, the court also noted that the failure of the State
to place in evidence facts relating to the potential
suppression issue was inadvertent, since the State had the
right to assume that the validity of the roadblock was not