Your Right to Discovery When Charged with a DUI / DWI


In New Jersey, the law states that if you are charged with driving under the influence of drugs or alcohol, you are entitled to discovery in your case. That means that you are allowed to request all the evidence held by the prosecution that is relevant to your situation. In State v. Utsch, the New Jersey Superior Court Appellate Division ruled that a defendant is entitled to discovery in any case where he or she may be imprisoned or subject to serious consequences – and a DUI / DWI conviction is subject to severe penalties in the form of possible imprisonment, extensive fines, and almost assuredly will result in some period of license suspension.

How Do You Obtain Discovery?

Obtaining discovery is a relatively simple procedure, because the law provides for discovery in any DUI/DWI case. In order to receive the relevant evidence, all you need to do is make a proper written demand upon the prosecutor, and an experienced DUI attorney will know how to request discovery, who to request discovery from, and what discovery to request. Importantly, the law requires that the demand for discovery be made at the same time that the DWI attorney enters his or her appearance with the Court.

What Evidence Are You Allowed to Obtain in Discovery?

The Court Rules limit the scope of discovery in a drunk driving case to relevant materials, which means the evidence must reasonably be usable to assist in the defendant’s case. Relevant evidence includes:

  • Records of statements, confessions, or admissions made by the defendant;
  • Recorded grand jury proceedings;
  • Results or reports of any physical or mental examinations and of scientific tests or experiments made in connection with the matter;
  • Records of the defendant’s prior convictions;
  • Photographs or images related to the case;
  • Video or sound recordings related to the case;
  • Names, addresses, and statements of any witnesses or other persons who know relevant evidence or information;
  • Any police reports;

Furthermore, in the case of State v. Chun, the New Jersey Supreme Court outlined the discovery permitted in a DUI case involving an Alcotest or breathalyzer test, which includes:

  • New Standard Solution report of the most recent control test solution change, and the credentials of the operator who performed that change;
  • Certificate of Analysis for the .10 percent solution used in the Report;
  • Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;
  • Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;
  • Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;
  • Calibration Records;
  • Certificate of Analysis for the .04, .08, .10, and .16 percent solutions used in Calibration;
  • Draeger Safety Ertco-Hart Calibration Reports; and
  • Additional standard items of Alcotest discovery including the alcohol influence report and worksheet.

When Are You Entitled to Discovery?

The New Jersey Court Rules require a prosecutor to respond to a Discovery Request within 10 days of receiving the request, although this does not mean the prosecutor must deliver all the evidence in that time. Usually, the prosecutor will respond by informing the defense attorney that a request for the evidence has been made to the proper police records clerk for processing and transmission. The prosecutor is then responsible for providing complete discovery or for providing the defendant with a list of the evidence that is missing with an explanation of why it has not been handed over.

If discovery is not provided by the prosecutor, and an attempt is made to reach an agreement on discovery issues, a defendant may make a formal motion with the Court for relief, which can include a Court order that would prohibit the prosecution from using the undisclosed evidence later on. A defendant may also be able to make a motion to limit the time in which evidence must be handed over, and if it is not provided within the time limit, the case may be dismissed or thrown out. For this reason, it is especially important to always consult an experienced DWI / DUI lawyer if you are pulled over and charged with drunk driving. An experienced DUI attorney will know the best way to defend against the charges or have the charges dismissed completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Knows What to Do If You Are Charged with DUI / DWI

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or a href=”/contact/”>contact us online today. We serve clients throughout the state of New Jersey.