State v. Wolfe, A-0416-12T3; Appellate Division; opinion by Koblitz, J.A.D.; decided and approved for publication June 28, 2013. Before Judges Grall, Koblitz and Accurso. On appeal from the Law Division, Atlantic County, Municipal Appeal No. 0025-12. DDS No. 14-2-0465 [10 pp.]

Defendant Thomas Wolfe appeals from the Law Division judgment finding him guilty de novo, based only on defendant's blood-alcohol content (BAC), of a per se violation of the prohibition against driving while intoxicated (DWI). He was sentenced to the minimum mandatory penalties for a second offender.

Defendant unsuccessfully sought to block admission of his Alcohol Influence Report (AIR), a report generated by an Alcotest breathalyzer device, because the state did not timely provide complete discovery. During trial, the municipal court required defense counsel to specify the grounds for his objection to the admissibility of the AIR, and the state was then allowed to cure the deficiencies in the foundational evidence pointed out by defense counsel.

Defendant argues that because he was only guilty of the per se portion of the statute, not the observational portion, and the AIR was improperly admitted, his DWI conviction should be vacated.

Held: Defendant's drunk-driving conviction is affirmed where a missing document from his Alcohol Influence Report (AIR), generated by an Alcotest breathalyzer device, was admissible midtrial because defendant alleges no prejudice and the state did not intend to mislead the defense, instead believing the document was available online.

The appellate panel perceives defendant's grievance to be that the state was permitted to cure the deficiencies in its evidence establishing the foundation for admission of the AIR in the middle of trial after not providing the documents or witness to defendant in discovery. Defendant argues that such errors required his attorney to assist the state in its case against him by specifying the lack of foundational evidence. He asserts that this error was compounded when the municipal court allowed the prosecutor to provide the missing document required by State v. Chun, the "Certificate of Analysis 0.10 Percent Solution Used in New Solution Report," which had not been previously provided in discovery. The prosecutor indicated that she thought this document was available online, but apparently it was not.

The state was also allowed to call a police officer not named in discovery to authenticate the AIR and foundational documents. Defendant candidly admits that his attorney would not have prepared any differently had he been aware of this information timely. Defendant objects to the leeway granted to the state by the municipal court to cure this discovery violation in the middle of trial because it tips the balance unfairly in favor of the state. He does not claim, however, that his ability to present his defense was impaired in any specified way.

In the context of surprise expert testimony, the Appellate Division has determined that the court may consider (1) whether the party who failed to disclose intended to mislead; and (2) whether the aggrieved party was surprised and would be prejudiced by the admission of expert testimony. "Prejudice" in this context refers not to the impact of the testimony itself, but the aggrieved party's inability to contest the testimony because of late notice.

It is evident here that the prosecutor did not intend to mislead defendant. She thought the document in question was on the website and apparently overlooked the need to have a witness to authenticate the documents. Defendant does not argue that the state intended to mislead him by not providing all of the discovery timely. He also makes no significant argument of prejudice. Accordingly, the appellate panel finds that the Law Division judge did not abuse his discretion in allowing the officer to testify nor by admitting the late-supplied document into evidence.

For appellant — Robert J. Pinizzotto (Pinizzotto and Nicole E. Wise on the briefs). For respondent — James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor (James P. McClain, Acting Atlantic County Prosecutor).