E358 Reported Case: DWI Defendants Entitled to Breath Machine Data. State v Maricic
2. Reminder- New law Revises Eligibility for Expungement of Criminal and Juvenile Delinquency Records.
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1 Reported case DWI defendants entitled to breath machine data
State v Maricic ___ NJ Super. __ (App. Div. 2010) A-5247-08T4
In this DWI matter, the Court held that defendant has the right to discover downloaded Alcotest results from the subject instrument from the date of last calibration to the date of defendant's breath test and any repair logs or written documentation relating to repairs of the subject Alcotest machine, without a showing of prior knowledge of flawed procedures or equipment. Although the requested items were not included in either Special Master King's list of fundamental documents that must be produced by the prosecutor in discovery or the list adopted by the Court in State v. Chun, 194 N.J. 54, 145, cert. denied 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), they are nonetheless of unquestionable relevance to a determination of the reliability of the Alcotest machine and procedures utilized.
2 Reminder- New law Revises eligibility for expungement of criminal and juvenile delinquency records
This law makes some changes to the criteria for expungement of
criminal convictions and adjudications of delinquency and also adds to
the list of crimes that may not be expunged.
Expungement of Indictable Offenses Generally Section 1 of the
law reduces the amount of time that must elapse before a person
convicted of an indictable offense is eligible for expungement. Under
current law, subsection a. of N.J.S.2C:52-2 requires a person to wait
10 years from the date of his conviction, payment of fine, satisfactory
completion of probation or parole, or release from incarceration,
whichever is later, before applying to expunge a conviction for an
indictable offense. The law would allow expungement for an
indictable offense although less than 10 years has expired if the court
• Less than 10 years has expired from the satisfaction of a fine,
but the 10-year time requirement is otherwise satisfied, and the
court finds that the person substantially complied with any
payment plan ordered by the court, or could not do so due to
compelling circumstances affecting his ability to satisfy the
• At least five years has expired from the date of conviction,
payment of fine, satisfactory completion of probation or parole,
or release from incarceration, whichever is later; the person has
not been convicted of a crime, disorderly persons offense, or
petty disorderly persons offense since the time of the
conviction; and the court finds in its discretion that
expungement is in the public interest, giving due consideration
to the nature of the offense, and the applicant’s character and
conduct since conviction.
In determining whether compelling circumstances exist, a court may
consider the amount of the fine or fines imposed, the person’s age at
the time of the offense, the person’s financial condition and other
relevant circumstances regarding the person’s ability to pay.
Expungement of Certain Drug Crimes Section 1 of the law also
allows expungement of certain convictions for the sale or distribution
of a controlled dangerous substance (CDS) or possession thereof with
intent to sell. Expungement would be allowed if the convictions
involve crimes of the third or fourth degree, and the court finds that
expungement is consistent with the public interest, giving due
consideration to the nature of the offense, and the petitioner’s
character and conduct since conviction. Under current law, a person
may not have his conviction for the sale or distribution of a CDS or
possession thereof with intent to sell expunged unless it relates to the
sale, distribution, or possession with intent to sell a small amount of
marijuana or hashish.
Expungement of Delinquency Adjudications Section 2 of the law
changes the criteria for expunging a record of an adjudication of
delinquency. Under current law, to expunge an adjudication of
delinquency, a minimum of five years must elapse after final discharge
of the person from legal custody or supervision or after the entry of
any other court order not involving custody or supervision. Also, the
person must not have been convicted of a crime, or a disorderly or
petty disorderly persons offense, or adjudged a delinquent, or in need
of supervision, during the five years prior to the filing of the petition
for expungement. Section 2 of the law would except periods of post incarceration
supervision pursuant to section 25 of P.L.1982, c.77
(C.2A:4A-44) from these five-year per