On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, 74-1999.
Before Judges Kestin, Ciancia and Alley.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2000
Defendant John K. Oliveri was found guilty of driving while under the influence of alcohol, N.J.S.A. 39:4-50, after a trial de novo on the record in the Law Division. He contends now, as he did in the Law Division, that there was insufficient legal basis for the initial stop of his vehicle and that a laboratory report on a blood test was erroneously allowed into evidence at trial because the State failed to lay a proper foundation. We find insufficient merit in the issues raised to warrant a reversal. In addition, we are satisfied that there is sufficient credible evidence in the record to support defendant's conviction even without consideration of the laboratory report.
On the evening in question, defendant was driving a replica model of a 1966 Cobra AC, a car as defendant said, that was "built for racing." The vehicle was stopped at a light when first observed by a local police officer on motor patrol. When the light turned green the officer observed "heavy acceleration" and smoke emanating from the tires. The Cobra's engine was loud. The tires were spinning and the vehicle appeared out of control. The back end "kicked out a little bit." The officer pulled defendant over and, among other things, issued a careless driving summons. N.J.S.A. 39:4-7.(1)
On those facts we are satisfied, as was the trial court, that the police officer had a reasonable and articulable suspicion that defendant had committed a motor vehicle violation. The initial investigatory stop was reasonable. State v. Murphy, 238 N.J. Super. 546 (App. Div. 1990); State v. Carter, 235 N.J. Super. 232 (App. Div. 1989).
Defendant's second contention is more complex. It concerns the admission into evidence of a certified laboratory report from a State Police laboratory indicating a blood-alcohol concentration of .l45%. No foundational testimony was presented by the State prior to the report's admission other than information concerning how the blood was initially drawn and the chain of custody that brought it to the State Police laboratory.
Defendant contends the absence of such a foundation precluded admission of the report as a business record. N.J.R.E. 803(c)(6).
Initially, we note that there was some discussion of the procedures set forth in N.J.S.A. 2C:35-19 and some confusion as to the applicability of that statute. The confusion was compounded by the form used by the State Police laboratory (SP-630T), which is designed for both alcohol and drugs and which carries a certification referencing N.J.S.A. 2C:35-19.
It is clear from the wording of the statute that its provisions concerning admissibility into evidence of laboratory certificates are intended to apply only to a "proceeding for a violation of the provisions of chapters 35 and 36 of this title or any other statute concerning controlled dangerous substances or controlled dangerous substance analogs . . . . " The statute does not speak to blood-alcohol analysis reports prepared for Title 39 violations.(2)
Defendant contends that the laboratory report cannot qualify as a business record and cites us to State v. Flynn, 202 N.J. Super. 215 (App. Div. 1985). Defendant fails to note that the Supreme Court remanded Flynn to the Law Division "for reconsideration in light of State v. Matulewicz, 101 N.J. 27 (1985)." State v. Flynn, 103 N.J. 446 (1985). On that remand, Flynn was considered along with another case. The two are reported as State v. Weller, 225 N.J. Super. 274 (Law Div. 1988). In Weller, the court held that State Police blood-alcohol laboratory reports qualify as both business records under then Evid. R. 63(13), now N.J.R.E. 803(c)(6), and public documents under then Evid. R. 63(15), now N.J.R.E. 803(c)(8). The court said that the report could be admitted "without accompanying testimony from the qualified forensic chemist who performed the tests." 225 N.J. Super. at 282. The State interprets Weller as the precedent that now permits all trial courts to admit laboratory reports without any accompanying foundational evidence. We find no appellate court opinion that has, as yet, endorsed Weller in that broad a fashion. In our view, the road map for these kinds of evidential issues was set forth in State v. Matulewicz, supra. There the Court noted the following factors to be explored when considering admissibility of a forensic report:
[P]roofs should be adduced to reflect the relative degrees of objectivity and subjectivity involved in the procedure; the regularity with which these analyses are done; the routine quality of each analysis; the presence of any motive to single out a specific analysis for the purpose of rendering an untrustworthy report, and the responsibility of each State Police chemist to make accurate and reliable analyses. [101 N.J. at 30.]
Admissibility must be informed by an evidential record that addresses all relevant factors. Id. at 31. Whether the report is sought to be admitted as a business record or a public record "the concern for reliability remains paramount." Ibid. Any concerns about violations of the confrontation clause, such as those expressed by defendant in the present case, are met by a showing ...