DWI Appeal - Acquittal Reversed, But Failure to Provide Breath Test Data Causes Suppression

In State of New Jersey v. Tsoullis, Not Reported in A.3d, 2011 WL 767721 (N.J.Super.A.D.), the defendant sought a download of the data for the Alcotest breath alcohol machine from the prosecutor. After a failure to provide the download, the municipal judge, at the request of the defendant, suppressed the result. The defendant then entered a conditional plea of guilty, and sought review in the Law Division. The law division judge found that the failure to provide the download data not only violated Brady v. Maryland, but also raised a reasonable doubt as to the defendant's guilt. Hence, the judge entered a judgment of acquittal. The prosecution appealed.

On appeal, the first issue raised was whether the appeal of a judgment of acquittal violated double jeopardy. Acknowledging that, as a general rule, an acquittal cannot be appealed, the appeals court found that the law division's order was more appropriately an order of dismissal for a discovery violation, and hence reviewable.

On review, the appeals court found that the failure to provide the download was a proper basis for suppressing the test result, but that outright dismissal was not proper. First, there was no evidence that the data, if produced, would have been favorable to defendant. Hence a Brady violation did not occur (there is good case law cited for the proposition that if a Brady violation occurs then total dismissal is appropriate). Equally, since there was no evidence that the data, if produced, would have proven that the defendant was NOT under the influence, a judgment of acquittal was also erroneous. The cause was reversed and remanded to reinstate the plea of guilty.


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