Failure to Provide Discovery in NJ DWI Cases


Have you been charged with an offense such as a DUI and the prosecutor will not provide discovery no matter how many times you ask? Do you continue to miss work for court and nothing gets resolved? There is a solution. It’s called a Holup motion and our experienced DUI defense attorneys use it to get driving under the influence charges dismissed in local courts in Union County and throughout New Jersey on a regular basis. Here’s why the state’s failure to provide discovery may be the key to winning your DWI case.

What is a Holup Motion?

Your attorney can file what is known as a Holup Motion which may bring a final resolution to your drunk driving case in the form of a dismissal. In every case, the State has the obligation to provide discovery upon request. Your attorney will send a letter requesting the proofs under New Jersey Court Rule 7:7-7. This rule entitles any defendant, unless he or she agrees to more limited discovery, to copies of all relevant material that the prosecutor intends to use against them in court. This includes, but is not limited to: documents, photographs, video and sound recordings, images, records of statements or confessions by the defendant, summaries of any unrecorded admissions, grand jury proceedings, results or reports of physical or mental examinations and scientific tests, and record of statements by individuals conducting the aforementioned tests.

Your attorney will request the discovery that the state has and intends to use against you. If it is not given to your attorney a motion should be filed to compel the discovery in accordance with the rules. The court will set a deadline in which the state has to turn over the requested items. If the state does not turn over the documents or make them available, the case can be dismissed. This motion to dismiss is called a Holup Motion.

Get a DUI Dismissed with Failure to Provide Discovery Defense

In the case of a DUI, a person would have been arrested and taken to the police station and then given a series of tests. There are numerous requirements when administering the breath test. Two breath tests must be administered. The mouth piece on the machines must be changed between tests. You must be observed for twenty minutes prior to the test and continuously observed throughout. The person who administers the tests must be trained to use the machine. The discovery should include the officer’s certificates of training as well as certificates that demonstrate that the machine, its parts, and all solutions used in the testing are in good working order and not expired or that the person that administering the tests or reviews of the instruments is in good standing. Also included should be the dash cam footage or videos from the police car on the day you were arrested or allegedly driving under the influence. You are entitled to view these items. The above items are just a few of the discoverable items in a DUI case.

What Happens if the Prosecutor Doesn’t Give Me the Discovery?

Your attorney will comply with the court rules and request discovery upon entering his or her appearance letter. The prosecutor has ten days to respond. If the items are not received in accordance with the rules, the parties attempt to resolve the issues by agreement. If no agreement is reached a motion can be filed known as the Holup Motion.

A Holup motion will result in a dismissal if all things were done properly and the discovery was not provided. In every case, the State has the obligation to provide discovery upon request as discussed above. If it state does not comply with the demand, your attorney should file a motion with a certification seeking an order limiting the time for the state to give you discovery. Your attorney essentially tells the court that he asked for discovery in writing, that he followed the rules, that he was not provided discovery, and that it must now set a deadline for the discovery to be provided. If the discovery is not provided by the date specified in the judge’s order, the case should be dismissed. Since the case that established this is State v. Holup, the motion to dismiss a case based on failure to provide discovery is known as a Holup Motion. The ultimate decision by the judge to the dismiss the case is called a Holup order. Why it matters to you? It could be the best way to get a dismissal in your DWI case.

Want to Have the Best Defense for Your Cranford DWI Charge?

If you have a DUI case, contact us to so that we can help get all of your discovery and put the state’s to its proof or otherwise file to dismiss the case. Do not continue to miss work, stress, and be at the mercy of the court without knowing your rights. Call us today to have someone be by your side in court. We defend clients charged with DWI in towns throughout Union County, including in Linden, Mountainside, Cranford, Scotch Plains, Summit, New Providence, Union Twp, and Elizabeth NJ. Call (908) 838-0150 to speak with a skilled DWI defense attorney who knows the best ways to beat your case.

With more than a decade of experience defending clients against criminal charges, founding partner William A. Proetta has successfully handled and tried thousands of cases, from DWI to murder. As a New Jersey native, he has focused his career on helping people in the area where he grew up, serving Middlesex, Ocean, Hudson, and Union counties.