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State v. Martorelli

Decided: October 17, 1975.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN A. MARTORELLI, DEFENDANT-APPELLANT



Lynch, Ackerman and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

Defendant was convicted in the Hackensack Municipal Court of operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a). This conviction was appealed to the Bergen County Court where defendant was again convicted on a de novo hearing on the record, and sentence was imposed consisting of a $200 fine plus costs and a suspension of his operator's license for two years.

The operative facts upon which the County Court relied in arriving at its conclusion are the following:

On March 25, 1974, at approximately 12:45 A.M., defendant was observed by two police officers operating his vehicle in an extraordinary manner on a sidewalk on a major street in Hackensack for a considerable distance, after which it collided with another vehicle at an intersection and continued for an additional 150 feet before it came to a stop. The police officers then found defendant slumped over the wheel obviously injured and "in a semi-conscious state." While close to him they both noted a distinct odor of alcohol. They concluded from their experience that defendant was under the influence of an alcoholic beverage.

An ambulance removed defendant to the Hackensack Hospital where the police officer observed a physician draw a blood sample from defendant. He then physically transported the sample in three or four vials to the Bergen Pines Hospital for performance of tests to determine alcohol and drug content, and personally turned over the samples to the technician in the laboratory at about 3:10 that same morning. The laboratory reports of these tests were subsequently turned over to the police department and became part of the Hackensack police file. They were produced in court by the police officer.

There were admitted into evidence three toxicology reports from the Bergen Pines laboratory. One blood report and one urine report were negative for various types of drug content. Another blood report revealed a "serum ethanol level of .222%" equivalent to .22% by weight of alcohol in the blood, creating a presumption that defendant was under the influence of intoxicating liquor under N.J.S.A. 39:4-50.1(3).

The issue raised by defendant centers on the admissibility of the result of the foregoing blood test. The ruling on its admissibility is crucial to the determination of the appeal in view of the fact that the County Court judge relied in part upon this laboratory finding in arriving at his conclusion of guilt.

Defendant's sole contention is that the laboratory report of the Bergen Pines Hospital setting forth the result of the blood test was inadmissible because it does not detail the nature of the test which was utilized nor "the expertise or competency of the person performing the test." In essence, he takes the position that the report was not admissible in the absence of the technician as a witness subject to cross-examination.

This contention requires an examination of the scope of the business entries exception to the hearsay rule. Evid. R. 63(13). This rule reads:

A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it was based was made in the regular course of business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.

An examination of the history of the Rule makes it clear that it was originally developed for use in the context of commercial litigation. See Fagan v. Newark , 78 N.J. Super. 294 (App. ...


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