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State v. Flynn

Decided: June 21, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TIMOTHY R. FLYNN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Warren County.

Pressler, Brody and Richard S. Cohen. The opinion of the court was delivered by Richard S. Cohen, J.A.D.

Cohen

[202 NJSuper Page 216] Defendant was convicted in the Phillipsburg Municipal Court of driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. In addition to proof that defendant operated a vehicle, the State produced testimony that blood was drawn from him at a local hospital and submitted by the Phillipsburg Police Department for analysis by the State Police Forensic Science Bureau. The only proof of the outcome of the analysis was a single page printed form, entitled "Laboratory Report" and bearing an illegible signature. It was allowed in evidence over defendant's objection that it was inadmissible hearsay. It stated that a toxicological analysis of defendant's blood was positive for ethyl alcohol at the level of .224%. The report also bore dates of analysis and distribution and filing information. It contained nothing relating to the method of testing, monitoring of test accuracy or qualifications of the analyst. Without the report, there was insufficient evidence to convict defendant of the charge against him.

On appeal, the Law Division expressed doubts of the propriety of the evidence but felt bound to uphold its admission on the basis of prior rulings of this court. It therefore convicted defendant. On defendant's appeal, we now reverse.

The admissibility of laboratory reports to provide essential evidence of crimes and quasi-crimes is an unsettled issue in New Jersey. Cf. State v. Moore, 158 N.J. Super. 68, 75 (App.Div.1978). Two rules of evidence are involved. Evid.R. 63(13) admits business entries as exceptions to the hearsay rule. Business entries are writings offered as memoranda of acts, conditions or events made at or about the time in the regular course of business and are admissible if the sources of information and the method and circumstances of preparation are such as to justify admission. Evid.R. 63(15)(a) admits, also as hearsay exceptions, written reports of public officials of acts done or acts, conditions or events observed if the performance of the act or the observations and the written report thereof are within the scope of the official's duty. There is a substantial area of overlap between the two rules, with official records often qualifying for admission under both of them.

There are three reported New Jersey cases in which laboratory reports were admitted to prove essential facts. State v. Martorelli, 136 N.J. Super. 449 (App.Div.1975), certif. den. 69 N.J. 445 (1976); State v. Soney, 177 N.J. Super. 47 (App.Div.1980), and State v. Malsbury, 186 N.J. Super. 91 (Law Div.1982).

Martorelli approved the admission, as a business entry, of a hospital laboratory report of defendant's blood alcohol level in a prosecution for driving while intoxicated. The court was not called upon to say whether the "circumstances of [the] preparation of the report," Evid.R. 63(13), would have barred admission if the laboratory were operated by a law enforcement agency instead of a hospital.

Soney involved a state police laboratory report which was admitted in a prosecution for causing death by auto. The State

charged that the defendant had failed to take medication which he knew was necessary to prevent akinetic attacks and that the onset of an attack caused the fatal collision. The State offered a State Police laboratory blood test showing defendant's blood to be free of drugs. The Appellate Division said the report was admissible as a business entry, citing Martorelli. However, Soney's authority for the admissibility of police laboratory reports is weakened by two factors. The first is that the report was admitted on the testimony of the supervising forensic chemist of the State Police laboratory who explained and interpreted it. The court's opinion does not say if the chemist was questioned about the preparation and methodology of the report, but he was certainly available for such questioning. The second factor is that nothing in the opinion shows that defendant objected to admission on hearsay grounds. Soney seems, therefore, to deal with this issue only in dictum.

Malsbury was a prosecution for possession of marijuana. The trial court held admissible as an official record a police laboratory report identifying a substance as marijuana. It also held that admission of the report did not violate defendant's right to confront witnesses guaranteed by the Sixth Amendment.

In two reported New Jersey cases, police laboratory reports were excluded from evidence. State v. Kraft, 134 N.J. Super. 416 (Cty.Ct.1975), and State v. Matulewicz, 198 N.J. Super. 474 (App.Div.), certif. granted 99 N.J. (1985). Kraft was a prosecution for driving while intoxicated. The court denied admission to a State Police laboratory report showing defendant's blood alcohol level on two grounds. One of them was the absence of authentication. The other was that admission of the report would deprive defendant of the constitutional right to confront the witnesses against him.

Only a few months ago, Matulewicz was decided. It was a prosecution for possession of marijuana. The Appellate Division held inadmissible as ...


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