                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0296-13T1

STATE OF NEW JERSEY,
                                             APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                November 14, 2014
v.
                                               APPELLATE DIVISION
SCOTT ROBERTSON,

     Defendant-Appellant.
___________________________________

            Submitted September 9, 2014 – Decided November 14, 2014

            Before Judges Messano, Ostrer and Hayden.

            On appeal from the Superior Court of New
            Jersey,   Law  Division,   Monmouth County,
            Municipal Appeal No. 13-023.

            John Menzel, attorney for appellant.

            Christopher J. Gramiccioni, Acting Monmouth
            County Prosecutor, attorney for respondent
            (Monica do Outeiro, Special Deputy Attorney
            General/Acting   Assistant  Prosecutor,  of
            counsel and on the brief).

            The opinion of the court was delivered by

OSTRER, J.A.D.

     Defendant Scott Robertson appeals from his September 2013

conviction, after a trial de novo, of driving while under the

influence     of   intoxicating    liquor    (DWI),      N.J.S.A.   39:4-50.

Defendant's    appeal   pertains    mainly    to   the    admissibility   of
Alcotest results showing he had a blood alcohol level of .13.

Defendant    unsuccessfully             argued      that     he     was     entitled    to

discovery of certain data and repair records of the specific

Alcotest device used.             He asserted that the State's failure to

provide    such       discovery    compelled        exclusion        of   the   Alcotest

results.     After the court denied defendant's motion, he agreed

to a trial on stipulated facts.

      Defendant renews his arguments before us, and we affirm, in

light of the factual record and applicable principles of law.

Neither State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825,

129   S.   Ct.    158,    172     L.    Ed.    2d   41     (2008),    nor    established

principles       of    discovery,       compel      exclusion        of   the   Alcotest

results.

      We also choose to address an important issue not raised by

the   parties     pertaining       to    the      stays    of     defendant's    license

suspension pending appeal entered by both the municipal court

and the Law Division.           We instruct trial courts that any stay of

a license suspension after conviction should be supported by

adequate findings of fact and conclusions of law, and should

comply with standards governing the grant of a stay pending

appeal.




                                              2
                                                                                 A-0296-13T1
                                         I.

      We discern the following facts from the record, including

testimony     presented    at    an     unsuccessful          suppression       motion

challenging probable cause to arrest.1                 Defendant was stopped on

August 11, 2012, shortly before 2:00 a.m., after a Wall Township

Police Officer observed defendant repeatedly encroach upon the

fog   line.      After    approaching         defendant's       convertible,          the

officer     detected     the    strong        odor     of    alcoholic        beverage.

Defendant admitted that he drank a small number of beers, but

denied being intoxicated.          The officer asked the defendant to

submit to a field sobriety test.                     According to the officer,

defendant     performed    poorly.        He     was       unable   to   follow       the

officer's     instructions      and      lost        his    balance      on    several

occasions.2

      The   officer    arrested       defendant       and    transported        him    to

police headquarters.       Defendant was administered breath tests on

an Alcotest 7110 MKIII-C device (Alcotest).                   After producing the

.13 BAC result, he was charged with DWI, N.J.S.A. 39:4-50, as




1
  The order denying the suppression motion is not before us on
appeal.
2
  The stop was captured on a video-recording which was admitted
into evidence, and viewed by the municipal court and Law
Division. It is not part of the record before us.


                                         3
                                                                               A-0296-13T1
well as failure to maintain a lane, N.J.S.A. 39:4-88(b), and

reckless driving, N.J.S.A. 39:4-96.

       The municipal court denied defendant's motion for a jury

trial, and his motion to suppress evidence based on an alleged

lack   of   probable   cause   to   arrest.        The   court   then     denied

defendant's motion to exclude the Alcotest results based on the

asserted denial of discovery after a non-testimonial hearing on

May 1, 2013.      Defendant supported his motion with an expert's

report.3

       A.   The Discovery Dispute

       Although   defendant    presented      an   extensive     demand       for

discovery, only two categories of requests remain relevant to

this   appeal.    First,   defendant     sought     more   detailed     records

associated with the repair of the particular Alcotest device

used in defendant's case, identified by serial number ARXA-0037.

Second, defendant sought "data downloads" of various diagnostic

tests of the device.       Defendant argued that hard copies of the




3
  The State did not question the author's qualifications as an
expert in the operation of the Alcotest device, nor did the
State object to the court's consideration of the expert report
as evidence on the motion, although it was unaccompanied by a
proper certification.    See R. 1:6-6 (stating that where "a
motion is based on facts not appearing of record or not
judicially noticeable," the facts shall be presented by
affidavit or certification made on personal knowledge, and
admissible in evidence).


                                     4
                                                                        A-0296-13T1
test results were incomplete.            We address these requests in

turn.

    With respect to repair records, defendant received, or had

access   to,   through   the   State's    database,   several   documents

reflecting that the device was returned to its manufacturer,

Dräger, in November 2008 and September 2011, for service. 4              In

both November 2008 and September 2011, Dräger replaced the fuel

cell and calibrated the device.5          In September 2011, a second




4
  Defendant's expert asserted that defendant received or had
access, through the State Police's database — which the expert
called a "data depository" — six documents: (1) a "Draeger
Safety Equipment Return Form" dated November 17, 2008; (2) a
"Dräger Return & Repair Form" dated November 18, 2008; (3) a
packing slip dated November 20, 2008; (4) a "Breath Testing
Instrumentation Service Report" dated September 7, 2011; (5) a
"Dräger Return and Repair Form" dated September 13, 2011; (6) a
packing slip dated September 20, 2011; and (7) a second "Breath
Testing Instrumentation Service Report" dated September 29,
2011.   Only documents (2) and (5) are included in the record
before us.   We obviously cannot address documents not included
in the record.     See R. 2:6-1(a) (stating that the appendix
"shall contain . . . such other parts of the record . . . as are
essential to the proper consideration of the issues."); see also
Johnson v. Schragger, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3
(App. Div. 2001) (noting failure to supply documents "essential
to the proper consideration of the issues hinders our appellate
review.") (internal quotation marks and citation omitted).
Consequently, we cannot determine whether the machine was
serviced once or twice in September 2011.
5
  Defendant's expert asserted that the machine was manufactured
in 2006, but was not placed into service until November 2008.
The expert explained that machines that were "shelved," as
apparently was the case here, often needed new fuel cells before
being placed into service.


                                    5
                                                                 A-0296-13T1
replacement part, described only as a "Plate," was apparently

installed.

    Defendant sought the results of various tests that Dräger

performed after replacing the fuel cell, before returning the

machine.     Defendant's expert asserted, "Actual opening of the

instrument and measurement and adjustment of critical internal

operating    values   can   only    be   done   by   Dräger   at   its   service

center."     He asserted that "the steps of this procedure and the

values obtained and/or which are set by Dräger are recorded on a

checklist completed at the Dräger Service Center . . . ."                      The

expert     distinguished    these    documents       from   the    calibrations

conducted by the State Police breath test coordinators.                         He

minimized these as, "simple check[s] to see if the instrument

can read assayed" solutions "within acceptable tolerances and

that these readings fall within a specified parameter, and fit

to a line or are 'linear.'"              Defendant presented exemplars of

Dräger's test results, which were also included in the record

before the Special Master in Chun.

    Defendant's       expert        argued      that    Dräger's         internal

measurements and adjustments were essential parts of a "complete

Dräger Repair Record," and were essential to indicate "what, if

any, service was performed in the subject instrument, even if

said service was performed prior to the instrument being placed


                                         6
                                                                         A-0296-13T1
into service."         He asserted that the documents were needed in

order to obtain a "complete picture of the operability of the

instrument."

       As of September 4, 2012, the machine produced 680 Alcohol

Influence Reports (AIR).             These were reflected in nine data

downloads in connection with nine complete calibration cycles.

Defendant's         expert   explained      that    an   Alcotest       coordinator

downloads data during recalibration, which must occur at least

semi-annually, under Chun, supra, 194 N.J. at 153.6                     There were

gaps    in    the    numbered   AIRs.       For    example,    the   seventh     data

download      on    September   7,   2011    covered     AIR   breath    tests    397

through 489 between March 31, 2011 and September 6, 2011.                         The

eighth data download on March 7, 2012 covered AIR breath tests

501 through 554 between October 23, 2011 and March 5, 2012.

       Defendant's expert asserted that repair records were needed

to understand the gaps in breath tests.                    For example, eleven

breath tests were missing between September 7 and October 22,

2011.        However, the expert stated that gaps usually "indicate


6
  Also, after an Alcotest device performs 500 tests, Alcotest
coordinators typically download all the data on the device to
"avoid the instrument's tendency to slow down as it searches
large numbers of files.    After downloading, all information in
the Alcotest 7110 is removed but the sequential file numbers
continue."   Findings and Conclusions of Remand Court, Special
Master Report (SMR) 104, February 14, 2007. Downloads are also
performed before the machine is shipped for service. Ibid.


                                         7
                                                                           A-0296-13T1
that the instrument has suffered a service issue . . . and in

many   cases    has    been   returned       to   Dräger    for   service    and/or

repair."     That may have been the case here, as the gaps cited

coincide with the 2008 and 2011 repairs.

       Defendant also sought, in electronic format, the nine data

downloads.       However, only three file record types remain at

issue on appeal: the calibration test, the control test, and the

linearity      test.     These   three       files    are   identified      by    the

following numbers, respectively: 21NJ3-11, 22NJ3-11, and 58NJ3-

11.    Defendant argued that the data files "must have existed in

order for the Alcotest instrument to generate the corresponding

Calibration Record and Calibration Record, Part I-Control Tests,

and Part II-Linearity Tests reports."                Defendant did not dispute

that he received the "corresponding" records and reports.                          He

argued that the data files stored in the device included more

information than contained in the paper records, in particular,

"the results of pre- and post-test diagnostics," and "firmware

version number and operational perimeters . . . derived from the

electronic files."       He claimed "[s]uch information goes directly

to Alcotest operability."        Defendant received data downloads for

the subject breath test and solution change test.                    He asserted

other tests should have been provided as well.




                                         8
                                                                            A-0296-13T1
      Defendant's expert stated that "the data downloads provided

[were]     insufficient     to   determine        the    operability      of    the

instrument."      The expert asserted that Dräger has described the

pre-test and post-test diagnostic checks "as verifying that the

test records are correct and that all diagnostics checks were

performed."       Another   field    of    information,      included     in    the

device's data storage but not disclosed in the paper records,

captures any one of several errors identified in the operator's

manual.     The data also include time stamps of each event that

occurred within the breath testing sequences, as well as any

aborted tests.

      The expert argued that the Supreme Court recognized the

data's importance when it ordered the creation of a centralized

database of downloaded Alcotest results.                 See Chun, supra, 194

N.J. at 153 (ordering the State to "[c]reate and maintain a

centralized statewide database, comprised of downloaded Alcotest

results,    and    shall    make    the    data,        following   appropriate

redactions of personal identification as needed, available to

defendants and counsel").           The expert asserted that the State

had   established    "a    centralized     data    depository,"     but     not    a

centralized database; the data did not permit cross file access;

it was incomplete; and it lacked file integrity.




                                       9
                                                                          A-0296-13T1
     In support of his argument that the data downloads were

essential, notwithstanding that he received corresponding hard

copy reports, defendant noted that the New Jersey State Police's

Forensic Laboratory Director had compared data files and hard

copies     in        connection    with     his    presentations      in     the     Chun

hearings.             Defendant    argued     to    the    municipal       court     that

defendant       was     "simply     attempting      to    replicate     this       simple

safeguard       to     assure     operability      of    the   Alcotest     instrument

used. . . ."

     The lab director, Thomas A. Brettell, compared hard copy

reports with electronic data downloads of twenty-five devices

used in twenty-five different police departments in Middlesex

County, involving 1865 tests during 2005.                        According to his

report, which defendant submitted to the court, there were no

discrepancies.7

     Our record does not reflect that the State presented any

evidence        or     expert     opinion    in     opposition     to      defendant's

assertions regarding the need for the repair-related records, or

the data that was not included in the paper disclosures.                             The

State also presented no evidence regarding why the data, which




7
  Dr. Brettell's comparison is discussed in the Special Master's
report.   Findings and Conclusions of Remand Court, SMR 104,
February 14, 2007.


                                            10
                                                                               A-0296-13T1
is generated and stored in the device, was not downloaded and

made available to defendant.

     However, the State has provided to defense counsel in other

DWI cases a 2009 memorandum from the State Police's Director of

Forensic Sciences "explaining that the data at issue could not

be supplied in downloadable form because it was routinely erased

following each re-calibration."     State v. Pechko, No. A-0871-11

(App. Div. May 13, 2013) (slip op. at 2), certif. denied, 218

N.J. 274 (2014); see also State v. Lobo, No. A-4477-11 (App.

Div. August 28, 2013), certif. denied, 217 N.J. 296 (2014).8    The

State contended that as a result of a firmware "bug," the device

would not function properly if the data were retained.     Pechko,

supra, slip op. at 2.9


8
  We recognize that citation to unpublished opinions is generally
prohibited.   See R. 1:36-3.   However, we cite Pechko and Lobo
for evidential and not precedential purposes.       See Mountain
Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146,
155 n.3 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).
9
  We quoted the 2009 memorandum of Howard Baum, Ph.D., the
forensic sciences director, regarding why the three data files
were deleted after calibration certificates were printed:

          The reason the files are deleted is to
          prevent    [the]    instrument    from   not
          functioning when it is put in use after
          calibration due to a firmware bug. . . .
          The firmware bug does not affect the
          immediately     printed     Alcotest    7110
          Calibration Certificates and does not affect
          the reliability of the Alcotest. However[,]
                                                     (continued)
                               11
                                                          A-0296-13T1
     B.      Municipal Court Trial and Stay Order

     Upon the completion of pre-trial motions, defendant agreed

to be tried on stipulated facts.            Pursuant to that agreement,

the court considered the testimony and evidence presented in the

suppression hearing.10       The State stipulated that it could not

prove   an   observational   case.        The    parties   also   agreed     that

defendant's    Alcotest   result   was     .13    BAC;   and   the   State    had




(continued)
          the electronic calibration files do contain
          additional data that is not printed on the
          Alcotest 7110 Calibration Certificates.

             I   have   examined  the   electronic  files
             generated during calibration and feel the
             additional   un[]printed   data   that  they
             contain is not necessary to be preserved.
             Most of the un[]printed data lists the times
             of calibration, linearity, solution change,
             and retrieval date.    Even though the times
             are not captured on the printouts, the dates
             of these operations are listed[,] which is
             sufficient.   The only other pieces of data
             that are not captured are the software
             version (NJ3.11) and tolerance (5% and
             0.005)[,] which do not change[,] and the
             record type[,] which is not needed.      The
             reliability of the Alcotest and the review
             of Alcotest results is not affected by the
             deletion of these files.

             [Lobo, supra, slip op. at 12-13.]
10
  See State v. Gibson, 219 N.J. 227, 245 (2014) (discussing the
practice of conducting a trial on evidence presented in a pre-
trial suppression hearing).


                                     12
                                                                       A-0296-13T1
provided the foundational documents necessary for the admission

of Alcotest results.                See Chun, supra, 194 N.J. at 142-45, 154.

      The municipal court stated: "Based upon the observational

evidence[,]          .    .    .    the    administration      of    the    psychophysical

tests[, and] . . . the blood alcohol content reading as shown

. . .      I    will       find     the     defendant      guilty     of    driving     while

intoxicated with a blood alcohol content of .13 percent."                                  The

DWI   conviction              was   defendant's      first.       The      municipal    court

sentenced defendant to $714 in aggregate fines and penalties,

ordered he serve twelve hours in the Intoxicated Driver Resource

Center, and revoked his driving privileges for seven months —

the   minimum         sanctions       allowed     under     the     circumstances.         See

N.J.S.A. 39:4-50(a)(1)(ii).

      Defense counsel requested a stay of the sentence pending

appeal, stating in support only that defendant intended to file

an appeal.           The State did not object.              The court granted a stay

of the license suspension, but not the fines, provided defendant

file his appeal within twenty days.                     The municipal court did not

provide any reasons.

      C.       Trial De Novo and Stay

      Upon      trial         de    novo    before   the    Law     Division,       defendant

renewed        his       argument     that     the    State's       failure    to     provide

discovery       compelled           exclusion   of    the     Alcotest      results.       The


                                                13
                                                                                     A-0296-13T1
trial court was unpersuaded.              The court understood defendant to

argue    that   the   data       files   were    necessary   "to       determine      the

reliability" of the foundational documents required under Chun.

The trial court held that defendant essentially sought to expand

the scope of discovery mandated by Chun.                   The court noted that

if   a   "defendant     perceives        an     irregularity      in    any    of    the

discoverable     foundation[al]          documents     required    by       Chun    . . .

timely   issuance     of     a    subpoena      will   suffice   for    purposes      of

protecting the defendant's rights."

     The court found defendant guilty anew based on the per se

violation,      and   also       found   sufficient     evidence       to   support     a

conviction based on the observational case.

            I looked at the DVR of the balance test and
            I would state, as a finder of fact, that I
            would have found beyond a reasonable doubt
            intoxication . . . just based on what I
            viewed . . . on that tape.

                 I don't understand why the Prosecutor
            conceded that down below.     And since I'm
            allowed to review this on my own, I don't
            know that I'm bound by that stipulation
            below, but I would have found him guilty of
            DWI just based on the MVR, regardless of the
            other argument. So, I want that to be into
            the record, if this is reviewed.11


11
   The Law Division on a trial de novo is free to base a
conviction on an observational case, even if the municipal court
has based the conviction solely on a per se violation. State v.
Kashi, 360 N.J. Super. 538, 545-46 (App. Div. 2003), aff'd, 180
N.J. 45 (2004).


                                           14
                                                                               A-0296-13T1
The   court    re-imposed   the     sentence   of    the    municipal     court,

consistent with his conviction of a per se violation.12

      Defense     counsel   again    sought    a     stay   of   the     license

suspension.     This time, the State objected.

                   [DEFENSE ATTORNEY]:    Judge, I would
              request that we continue the stay concerning
              the driving privilege revocation.   There is
              a legal question. All of the cases on which
              the — which the unreported cases, with the
              exception    of    Carlson,   are    pending
              certification in the Supreme Court.        I
              expect they're going head out to a collision
              course with Chun.      And since it is an
              unresolved issue, despite Your Honor's legal
              finding, I'd ask that the stay on the
              license be continued.

                   [PROSECUTOR]: The State would oppose a
              — a stay at this point.     Your Honor, the
              State does recognize that all the Appellate
              Division decisions are unreported, but we
              have — the essentially four panels of the
              Appellate Division and this Court have
              rejected these very same arguments.      The
              State would submit that the arguments don't
              raise a valid Appellate issue and would ask
              that the Court not continue the stay at this
              point.

Defense   counsel     represented     to   the      trial   judge      that   the

sentences were stayed in other cases pending certification.                   The

trial court then ordered a stay pending appeal, provided the




12
  The license suspension for a first-time offender's conviction
based only upon an observational case would be three months, as
opposed to seven to twelve months for the per se violation.
N.J.S.A. 39:4-50.


                                      15
                                                                        A-0296-13T1
notice of appeal was filed within ten days.     The court did not

provide reasons.

    Defendant presents the following points on appeal:

           I.   The State Failed to Provide Discovery
           of Complete Alcotest Data and Repair Records
           as Required by Our Supreme Court, Thereby
           Denying Defendant's Right to Explore Whether
           Recognized Alcotest Shortcomings Affected
           the Operability of the Instrument Used to
           Test His Breath and the Result Obtained
           Therefrom.

           II. The    State's    Failure to  Provide
           Discovery of Complete Alcotest Data and
           Repair Records Warrants Either Dismissal,
           Exclusion, or Remand.

           III. Defendant Requests a Jury Trial Because
           He Faces Serious Quasi-Criminal and Civil
           Consequences as a Direct Result of the
           Municipal Court Proceedings.

                                II.

                                 A.

    We review the action of the Law Division, not the municipal

court.    State v. Adubato, 420 N.J. Super. 167, 175-76 (App. Div.

2011), certif. denied, 209 N.J. 430 (2012).     We assess whether

there was sufficient credible evidence in the record to support

the Law Division's findings.   State v. Johnson, 42 N.J. 146, 162

(1964).    We do not independently assess the evidence.   State v.

Locurto, 157 N.J. 463, 471 (1999).    However, we exercise plenary

review of legal conclusions that flow from established facts.

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

                                 16
                                                          A-0296-13T1
378 (1995).         We also deem the issue of whether evidence is

material or subject to disclosure by the State to be a "mixed

question of law and fact."             State v. Marshall, 148 N.J. 89, 185

(discussing disclosure obligations under Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)), cert. denied,

522   U.S.   850,    118   S.    Ct.    140,    139    L.     Ed.   2d   88   (1997).

Consequently, we review de novo whether the Law Division applied

the correct standard, but defer to the court's fact finding

unless clearly erroneous.         Ibid.

                                         B.

      The Supreme Court in Chun held that the Alcotest, using New

Jersey   Firmware      version    3.11,        was    generally     scientifically

reliable, subject to certain ordered modifications.                      194 N.J. at

65, 150.     Additionally, its results were admissible to prove a

per se violation of N.J.S.A. 39:4-50.                 Ibid.    To demonstrate the

device's proper working order, the Court required the State to

introduce into evidence so-called core foundational documents:

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

                                         17
                                                                              A-0296-13T1
         [Chun, supra, 194 N.J. at 154.]

    In order to enable the defendant to determine whether the

device was in working order, or whether there was a flaw in the

process, the Court ordered the State to disclose certain other

foundational documents.   However, the State was not required to

introduce these non-core foundational documents into evidence in

order to establish admissibility.    These non-core foundational

documents include:

         (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;

                               18
                                                        A-0296-13T1
            (9) New Standard Solution Report, following
            the most recent calibration;

            (10) Draeger Safety Certificates 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 . . . .13

            [Id. at 153.]

       Although   the   Court    required     disclosure     of   the    twelve

categories of non-core foundational documents, it held "they are

not fundamentally a part of demonstrating that the particular

device was in good working order."                Id. at 144-45.        In some

respects, these non-core foundational documents "are tests of

tests and, therefore, are too attenuated to require that they be

admitted as part of the evidence."           Id. at 144.     The Court held

that    a   defendant   may     conduct   further     discovery     if     these

documents    raise   questions    about     the   device's   working     order.

"[I]n the event that any defendant perceives of an irregularity

in any of these documents that might affect the proper operation

of the device in question, timely issuance of a subpoena will




13
  We subsequently held that a temperature probe manufactured by
Control Company was acceptable.    State v. Holland, 423 N.J.
Super. 309, 319 (App. Div. 2011).


                                     19
                                                                        A-0296-13T1
suffice    for   purposes      of    protecting        that    defendant's     rights."

Id. at 144 n. 47.

       We held in State v. Maricic, 417 N.J. Super. 280, 288 (App.

Div. 2010), that the list of twelve documents that the State

must routinely disclose under Chun should not be viewed to limit

or preclude other discovery.               Instead, requests for additional

discovery      must   be    viewed      in      light    of     general      principles

governing discovery in municipal court, and the Chun Court's

observations regarding the relevance of certain documents.

       Discovery in the municipal court is governed by Rule 7:7-7.

That   rule    entitles    a   defendant         to    secure    upon   request      "all

relevant      material."       The    rule      sets    forth     a   list    of     items

substantially     similar      to    those      identified      in    Rule   3:13-3(b),

governing criminal cases in the Law Division.                         However, "[o]ur

courts have applied a narrower concept of 'relevant' discovery

in DWI cases, which are quasi-criminal in nature, than in full-

fledged criminal cases."            State v. Carrero, 428 N.J. Super. 495,

507 (App. Div. 2012).               A DWI defendant's "right to discovery

. . . is limited to items as to which 'there is a reasonable

basis to believe will assist a defendant's defense.'"                                Ibid.

(quoting      State   v.   Ford,     240   N.J.       Super.    44,    48    (App.    Div.

1990)).




                                           20
                                                                                A-0296-13T1
      A defendant is not entitled to information that "merely

could   lead   to    other    information       that    is   relevant."             Ibid.

(citing Maricic, supra, 417 N.J. Super. at 284, and Ford, supra,

240 N.J. Super. at 48).           Discovery "must be relevant in and of

itself."    Carrero, supra, 428 N.J. Super. at 508.                      "However, at

least with respect to certain classes of information," including

repair records, "a DWI defendant need not have actual knowledge

of   the   facts    supporting       the    contentions      that    underlie         his

discovery requests."         Ibid.

      Although      there    is   no    general       constitutional          right    to

discovery even in criminal cases, Weatherford v. Bursey, 429

U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977) (there is

no   general   constitutional          right    to    discovery     in    a    criminal

case); State v. Marshall, supra, 148 N.J. at 269, the State is

obliged    under    due    process     principles      to   disclose      exculpatory

evidence.      See Brady, supra, 373 U.S. at 87.                    Suppression of

such evidence violates due process.                  State v. Martini, 160 N.J.

248, 268 (1999).          Brady has been applied to the trial of quasi-

criminal    motor    vehicle      offenses.          Carrero,   supra,        428     N.J.

Super. at 507-08.

      "In order to establish a Brady violation, the defendant

must show that: (1) the prosecution suppressed evidence; (2) the

evidence is favorable to the defense; and (3) the evidence is


                                           21
                                                                               A-0296-13T1
material."       Martini,       supra,     160    N.J.     at   268.         Evidence    is

material "if there is a reasonable probability that, had the

evidence      been    disclosed      to    the    defense,      the    result    of     the

proceeding would have been different."                      State v. Knight, 145

N.J.   233,    246     (1996)    (internal       quotation      marks    and    citation

omitted).

       Exculpatory      evidence      is    treated      differently     from     merely

potentially          useful     evidence.           Suppression         of     requested

exculpatory     evidence        violates    due    process,      regardless       of    the

prosecution's good faith.            Id. at 245; George v. City of Newark,

384 N.J. Super. 232, 243 (App. Div. 2006).                      However, "[w]ithout

bad    faith   on     the     part   of    the    State,    'failure     to     preserve

potentially useful evidence does not constitute a denial of due

process of law.'"             Ibid. (quoting Arizona v. Youngblood, 488

U.S. 51, 57, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988));

see also State v. Mustaro, 411 N.J. Super. 91, 102-103 (App.

Div. 2009).          Where evidence has been destroyed, the court must

focus on "(1) whether there was bad faith or connivance on the

part of the government, (2) whether the evidence . . . was

sufficiently material to the defense, [and] (3) whether [the]

defendant      was    prejudiced     by    the    loss     or   destruction       of    the

evidence."      State v. Hollander, 201 N.J. Super. 453, 479 (App.

Div.), certif. denied, 101 N.J. 335 (1985).


                                            22
                                                                                 A-0296-13T1
      Consistent with these principles, we have held that some

repair records of a breath test device are discoverable.                            We

stated in Ford, supra, 240 N.J. Super. at 51, that "information

concerning . . . [a] particular [Breathylzer's] state of repair"

was relevant and discoverable.              But, the "routine production of

[a device's] entire repair record . . . without appropriate time

limitations would be unreasonable."                Id. at 51-52.      We also held

in   Maricic       that    the    trial   court   erred   in     denying,    in    its

entirety,      a    defendant's       request     for   repair     records    of    an

Alcotest device, noting that the Chun Court observed that repair

records were "'potentially relevant.'"                  417 N.J. Super. at 285

(quoting Chun, supra, 194 N.J. at 145 n.48).                        Cf. State v.

Green, 417 N.J. Super. 190, 202-03 (App. Div. 2010) (stating

that repair record of speed radar device was discoverable).

      The trial court in Maricic also erred in denying a request

for downloaded data.             417 N.J. Super. at 286.         We noted that the

Chun Court ordered the State to create a database of downloaded

Alcotest results.           Ibid. (citing Chun, supra, 194 N.J. at 153).

We concluded that implicit in the court's order was that the

downloaded     data       available   through     the   database    was   relevant.

Id. at 287.

      In this case, defendant seeks repair records and downloaded

data that are not in the State's possession.                   The data defendant


                                           23
                                                                             A-0296-13T1
seeks was erased.            The requested repair records are the results

of    Dräger's      tests,    performed         when      it   serviced     the   Alcotest.

Dräger either possesses them, or destroyed them.

       The    State     is     not       obliged       to      produce    testing-related

documents unless they "are within the possession, custody or

control of the prosecutor."                R. 3:13-3(b)(1)(C); R. 7:7-7(b)(4).

For    example,       evidence      in    the    control        of    a   crime   victim      —

notwithstanding         the      victim's           close      cooperation        with      the

prosecution       —    is    not     within         the     prosecutor's     "possession,

custody or control."               State ex rel. A.B., ___ N.J. ___ (2014)

(slip   op.    at     24)    (citing      R.    3:13-3(b)(1)(E)).            There     is    no

evidence in the record to indicate that the State controls the

repair-related data generated by Dräger.                          Consequently, it was

defendant's obligation to subpoena those records from Dräger.14

See Chun, supra, 194 N.J. at 144 n.47 (stating that "timely

issuance of a subpoena will suffice for purposes of protecting

. . . [a] defendant's rights" where irregularity in a produced

document is perceived); see also State v. Holland, 422 N.J.

Super. 185, 199 n.7 (App. Div. 2011).

       By the same token, we find no Brady violation in connection

with    defendant's          request      for       Dräger's         repair-related      test


14
  We do not address what relief defendant could obtain if Dräger
still possessed the test data, but failed to comply.


                                               24
                                                                                     A-0296-13T1
results.        A    prosecutor's       obligation    under    Brady    extends     to

documents       of    which   it   is   actually     or    constructively    aware,

including documents held by other law enforcement personnel who

are part of the prosecution team.                  Kyles v. Whitley, 514 U.S.

419, 437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995);

State v. Nelson, 155 N.J. 487, 499-500 (1998), cert. denied, 525

U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).                       However,

the Brady disclosure obligation does not extend to documents

held by a private contractor; nor is the State required to ask a

private contractor to produce data for a defendant's potential

use.     See, e.g., United States v. Gray, 648 F.3d 562, 566-67

(7th Cir. 2011) (holding, in Medicaid fraud case, that Brady did

not    extend    to    State's     outside      Medicaid    billing    contractor),

cert. denied, ___ U.S. ___, 132 S. Ct. 1056, 181 L. Ed. 2d 775

(2012).

       In any event, we are unconvinced that the diagnostic tests

are material.         The record evidence indicates that the device was

sent to Dräger in 2008 and 2011 for replacement of the fuel

cell.     In connection with the 2008 repair, defendant's expert

explained that the fuel cells often needed replacement when a

device had been "shelved" after delivery to its intended user.

After the device was returned with the replaced fuel cell, the

State performed various tests designed to ascertain it was in


                                           25
                                                                            A-0296-13T1
working order.          Although the expert minimized the significance

of these tests, he provides no persuasive basis to conclude that

Dräger's test results could have demonstrated a failure of the

device       to   operate      properly,         notwithstanding             the     subsequent

testing      by   the   State      that       indicated         that    it     was     operating

properly.

       Turning to the downloaded data, we recognize that some of

this     information        was     only        in     the      State's        possession       in

electronic        format.         But      it        was     deleted      in     good     faith.

Therefore, we find no discovery or Brady violation.

       Rule 7:7-7 applies to documents in the State's possession.

The     destruction         of     discoverable              evidence        post-indictment

generally violates Rule 3:13-3.                      State v. Dabas, 215 N.J. 114,

138    (2013).      Similarly,          the     State      is   generally        not    free   to

destroy discoverable evidence post-complaint under Rule 7:7-7.

The ninth data download of the device used by defendant occurred

in September 2012, after defendant's breath test.

       Nonetheless,       we      are    unpersuaded            by     defendant's       expert

opinion that the deleted information is relevant under Rule 7:7-

7.     Although the expert opines that complete data is essential,

defendant fails to demonstrate how the few items of data, not

available in the paper disclosures, would demonstrate the device

was    not    reliable,      when       all     other        evidence     pointed        to    the


                                                26
                                                                                        A-0296-13T1
contrary conclusion.         We note that Dr. Brettell's own comparison

of data stored in devices, and paper records, discovered no

discrepancies.

    Our decision in Maricic, supra, does not compel a different

result.     First, Maricic did not analyze the specific elements of

data at issue in this case.                  Second, Maricic relied on its

understanding      that    the     requested     downloaded          data    were     to   be

included    in    the     statewide    database         ordered       in     Chun.         See

Maricic, supra, 417 N.J. Super. at 286-87 (citing Chun, supra,

194 N.J. at 90, 153).

    However, the Court has since held that the existing State

database — despite the data erasures — satisfies the Court's

order.     State v. Chun, 215 N.J. 489, 491-92 (2013) (Chun II).

In Chun II, movants sought an order in aid of litigant's rights

declaring    the    database       inadequate.           Id.    at     489.         Movants

claimed, among other things, that the database did not include

the calibration, control and linearity files that, as we discuss

above, have been routinely erased since 2006.

    In      response,      the     State    presented          the     Court    with       an

affidavit    of    Dr.     Baum,    the     current     director        of     the     State

Police's Office of Forensic Sciences, whose 2009 memorandum we

quoted above.       Dr. Baum stated that in 2009, he reviewed Dr.

Brettell's       2006     decision     to       erase    the         three     electronic


                                           27
                                                                                    A-0296-13T1
calibration    data      files    identified     as     21NJ3-11,   22NJ3-11         and

58NJ3-11.      Affidavit of Howard J. Baum, Ph.D., May 23, 2013.

Dr.   Baum   confirmed     that    the   routinely       erased    data   contained

certain records not present in the printed records.                            But, he

concluded,    as   did    Dr.    Brettell      before    him,   that     the     erased

records were irrelevant:

             [N]one of these data records affect the
             accuracy of the results, they are not the
             results of the calibration, and they have
             nothing to do with the actual results of the
             operation     and      calibration    of   the
             instrument. . . .      [N]one of the data that
             [are] cleared but not printed shows that
             there     is     a      problem     with   the
             instrument. . . .        [A]ll pertinent data
             demonstrating the proper working order of
             the instrument [are], in fact, printed on
             the hard copy documents.      Therefore, . . .
             clearing the files does not [a]ffect the
             scientific reliability of the Alcotest, and
             . . . the data that [are] cleared and not
             printed [are] irrelevant and unnecessary to
             determine    whether      the   instrument  is
                                 15
             operating properly.

      The Court implicitly agreed, and denied movants' request to

find the database deficient.             Chun II, supra, 215 N.J. at 492.

In its order, the Court acknowledged defendants' claim that the

database was noncompliant with                Chun I because it was, among

other   things,    "incomplete      as   to    certain     types    of    files      and

calibration cycles."         Chun II, supra, 215 N.J. at 489.                    Noting

15
  Pursuant to N.J.R.E. 201(b)(4), we take judicial notice that
Dr. Baum presented this opinion to the Court.


                                         28
                                                                               A-0296-13T1
the State's response in part through Dr. Baum's affidavit, the

Court then "concluded that the centralized statewide database is

fully in compliance with this Court's Order of March 17, 2008,

in all respects."         Id. at 491.           Although the Court's order in

Chun II was unaccompanied by a written opinion, it is binding

precedent, as it represents the Court's considered disposition

of issues presented after plenary review.                    See In re Osborne, 76

F.3d 306, 309 (9th Cir. 1996) (stating "the doctrine of stare

decisis     concerns    the     holdings        of    previous    cases,       not    the

rationales" and "judicial precedent attaches a specific legal

consequence to a detailed set of facts in an adjudged case or

judicial     decision")       (internal     quotation         marks    and     citation

omitted).

    Applying the principles set forth above, we also find no

violation of Brady.            The deleted data were routinely erased

because of a firmware bug.               There is no allegation, let alone

record    evidence,    that     the     erasures      were    accomplished      in   bad

faith.     See Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct.

1200,    1202,   157   L.   Ed.    2d    1060,       1066    (2004)    (stating      that

defendant    bears     burden     to    prove    bad    faith).        Consequently,

defendant must demonstrate more than that the information was

"potentially     useful."         See    George,       supra,    384    N.J.    at    243




                                          29
                                                                               A-0296-13T1
(internal quotation marks and citation omitted).                           Defendant must

demonstrate that the deleted data was exculpatory.

       However, for the same reasons that the missing data is not

"relevant" under Rule 7:7-7, it falls short of being exculpatory

or material.       Defendant has not demonstrated that there was a

"reasonable      probability"         that       had   the        missing          data    been

produced,      "the   result     of     the       proceeding        would          have    been

different."      Knight, supra, 145 N.J. at 246 (internal quotation

marks and citation omitted).                 Although he obviously could not

analyze data he did not receive in any form, defendant failed to

demonstrate     how   the   type      of    information           sought       could,     in   a

hypothetical     case,    demonstrate         that     a    device       was    unreliable,

despite all the disclosed evidence to the contrary.

                                           III.

       Defendant argues that he was entitled to a jury trial,

notwithstanding our Court's determination in State v. Hamm, 121

N.J. 109, 129-30 (1990), cert. denied, 499 U.S. 947, 111 S. Ct.

1413, 113 L. Ed. 2d 466 (1991), that there is no jury trial

right for DWI prosecutions.                Defendant argues that changes in

the    DWI   statutes    since   Hamm       was    decided        compel       a    different

result.      We are unconvinced.

       Defendant argues that he is subject to incarceration for as

much   as    seventy-seven     days    —     thirty        days    for    his      first    DWI


                                            30
                                                                                      A-0296-13T1
offense, N.J.S.A. 39:4-50 (a)(1)(ii); sixty days on the reckless

driving    charge,    N.J.S.A.       39:4-96;       and    fifteen       days     on    the

failure to maintain a lane charge, N.J.S.A. 39:4-88(b); plus up

to   forty-eight     hours    in     the    IDRC.         He     also    asserts       when

insurance      surcharges      are     added,        the       potential         monetary

consequence of conviction could exceed $6000.

      Even     assuming      for     argument's           sake     the     theoretical

possibility of such a consecutive sentence, that does not compel

a jury right; rather, the denial of a jury trial compels a

limitation of the sentence.           Where a DWI defendant is exposed to

an aggregate sentence of more than six months as a result of

related charges, "and the defendant is not offered a jury trial,

the sentences may not total more than six months."                               State v.

Federico, 414 N.J. Super. 321, 330 (App. Div. 2010) (internal

quotation marks and citation omitted); see also Blanton v. N.

Las Vegas, 489 U.S. 538, 543, 109 S. Ct. 1289, 1293-94, 103 L.

Ed. 2d 550, 556-57 (1989) (stating that DWI offender exposed to

sentence of six months or less is not entitled to a jury trial).

Also, the potential monetary consequences are not so onerous as

to compel a right to a jury.           See Id. at 544-45 (noting that the

possible     $1000   fine    was   well     below    the       $5000     level    set    by

Congress for a "petty offense," and did not compel jury trial).




                                           31
                                                                                  A-0296-13T1
                                       IV.

       Although we affirm defendant's conviction, we express our

concern      that    both   the   municipal   court     and   the    Law   Division

stayed      defendant's     license   suspension    pending       appeal   in   this

matter without providing any statement of reasons.                      We do not

question the authority of either the municipal court, or the Law

Division, to stay the imposition of all or part of a sentence.

See   R.    7:13-2    ("Notwithstanding       R.   3:23-5,    a   sentence      or   a

portion of a sentence may be stayed by the court in which the

conviction was had or to which the appeal is taken on such terms

as    the    court    deems   appropriate.");      R.   3:23-5      (stating    that

pending appeal after the trial de novo, the court may stay a

fine, costs, a forfeiture, or probation, and a defendant shall

be admitted to bail in accordance with standards set forth in

Rule 3:26-1(a)).

       Nonetheless, an application for a stay pending appeal is

governed by the three-part standard in Crowe v. De Gioia, 90

N.J. 126 (1982).            Garden State Equality v. Dow, 216 N.J. 314,

320 (2013).

              A party seeking a stay must demonstrate that
              (1) relief is needed to prevent irreparable
              harm; (2) the applicant's claim rests on
              settled law and has a reasonable probability
              of succeeding on the merits; and (3)
              balancing the "relative hardships to the
              parties reveals that greater harm would


                                        32
                                                                           A-0296-13T1
                 occur if a stay is not granted than if it
                 were."

                 [Ibid.    (quoting    McNeil     v.   Legis.
                 Apportionment Comm'n, 176 N.J. 484, 486
                 (2003) (LaVecchia, J., dissenting)).]

In cases of public importance, the public interest must also be

weighed.         Id. at 321.

       A        court    should        not     stay     the     suspension        of    driving

privileges         of    a   person      convicted       of    DWI    or    refusal     without

considering the factors governing the issuance of a stay.                                     With

respect to the second Crowe factor, the Court should consider

whether the appeal involves a substantial question, and whether

there is a reasonable prospect that defendant may prevail and

avoid license suspension.                    In this case, for example, defendant

sought      a     stay    based     on    an    argument       that    had   been      rejected

multiple times by our court, albeit in unpublished decisions.

Moreover, both the municipal court and Law Division judges were

satisfied that defendant had violated N.J.S.A. 39:4-50 based on

the    observational             case.         The    State's       stipulation        that   the

observational            case    was     insufficient         did    not   bind   the    court.

State v. Wesner, 372 N.J. Super. 489, 495 (App. Div. 2004),

certif. denied, 183 N.J. 214 (2005).                       Consequently, a conviction

with       at    least       a   three-month          suspension      was    mandated,         see

N.J.S.A.         39:4-50(a)(1)(i),           regardless        of    the    outcome      of   the

appeal.

                                                 33
                                                                                        A-0296-13T1
       Our     drunk      driving    laws      are     designed     to    combat    the

"senseless havoc and destruction caused by intoxicated drivers."

State     v.    O'Driscoll,      215        N.J.   461,      472   (2013)    (internal

quotation marks and citation omitted).                       Our Supreme Court has

adopted      directives     to   ensure      the     swift   prosecution     of    those

charged, and the swift punishment of those convicted, to further

the public goals of traffic safety.                    See State v. Cahill, 213

N.J. 253, 269-70 (2013) (discussing time-goals for prosecution

of DWI cases).

       Although defendant is a first-offender, the court should be

mindful of the possibility that a defendant may re-offend during

a stay, and of the consequent risk to the public.                        See State v.

Henry, 418 N.J. Super. 481, 494-95 (Law Div. 2010) (noting a

National Highway Traffic Safety Administration study's finding

that     "'each     prior     DWI    conviction        increases     an     offender's

recidivism rate by 10 percent per year'").                     The record does not

include defendant's driver's abstract, to reflect whether he had

a history of violating the motor vehicle laws; nor does the

record indicate whether he had a record of substance or alcohol

abuse that may         have heightened the risk of him re-offending

during    the     stay.      There     is    no    certification     from    defendant

setting forth the alleged harms he would suffer without a stay.




                                             34
                                                                              A-0296-13T1
There is no indication that the trial court sought or considered

such evidence before granting the stay.

      We appreciate that the loss of a driver's license is a

substantial sanction.           Although a DWI defendant sentenced to a

term of incarceration by the Law Division is eligible for bail,

Rule 3:23-5, the stay of the license suspension should not be

automatic.     Moreover, as reflected in Rule 7:13-2, a court that

determines     to    impose     a    stay     may    do     so   upon    appropriate

conditions.

      For example, if a convicted defendant demonstrates that the

loss of driving privileges pending appeal would unavoidably and

significantly       interfere    with    his   or     her    ability     to   maintain

employment, and a stay is otherwise warranted under the Crowe

factors, then the court may consider conditioning the stay by

limiting the defendant's driving to that required by employment.

The   court    may     also     condition      a     stay    upon      the    verified

installation    of     an     ignition      interlock       device,     which     would

provide some assurance that the defendant would not reoffend

pending appeal.        We leave it to the discretion of the trial

courts   imposing     stays     to   develop       other    appropriate       terms   or

conditions,    reasonable       under    the    circumstances,          supported     by

competent evidence, and based on expressed findings of fact and

conclusions of law.


                                         35
                                                                               A-0296-13T1
Affirmed.   The stay of the license suspension is vacated.




                           36
                                                     A-0296-13T1
