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State v. DeFrank

July 3, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMINICK DE FRANK, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 08 08 2002.

Before Judges King, Wecker and Fuentes.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2003

Defendant, Dominick DeFrank, appeals his conviction for driving under the influence of alcohol (DWI), N.J.S.A. 39:4-50. Defendant was first tried and convicted in South Brunswick Municipal Court. He was again convicted in a trial de novo in the Law Division. R. 3:23-8. Defendant was assessed the mandatory fines and penalties and his driving privileges were revoked for a period of two years.

Defendant argues that the trial court erred in admitting into evidence a certification signed by the nurse who drew his blood for alcohol content (BAC) analysis at the time of his arrest. We disagree and affirm.

I.

The salient facts are not in dispute. Defendant was involved in a motor vehicle accident on Route 535 in South Brunswick when the car he was driving struck a telephone pole. Although he was traveling southbound, he struck a pole located on the northbound lane of Route 535. The force of the impact drove the pole halfway into the car's engine compartment.

South Brunswick Police Officer Donald Whicker was dispatched to the scene the accident. Upon arriving, he observed defendant standing outside his car, claiming that he had fallen asleep at the wheel. Defendant spoke slowly, slurring his words. He had an odor of alcoholic beverage on his breath, watery, bloodshot eyes, and droopy eyelids. He also staggered as he walked and had difficulty producing his driving credentials. At this point, defendant was arrested for DWI and transported, via ambulance, to Robert Wood Johnson University Hospital where Ricardo Carrera, a registered nurse employed by the Hospital, drew a sample of his blood for analysis. The result of this test revealed defendant's BAC level to be.158. The result of the laboratory analysis of defendant's blood conducted by the State Police reflecting a BAC level of.158 was admitted into evidence without objection from defense counsel.

At trial, the State moved into evidence, pursuant to N.J.S.A. 2A:62A-11, the certification signed by Carrera attesting that he was the nurse who obtained a sample of defendant's blood at the request of Officer Whicker. In the interest of clarity, we have reproduced the certification in its entirety. The format of the certification contains a number of fill-in-the-blank areas. These areas are highlighted here in bold.

CERTIFICATION

FOR BODILY SPECIMENS TAKEN IN A MEDICALLY ACCEPTABLE MANNER PURSUANT TO N.J.S. 2A:62A-10 and N.J.S. 2A:62A-11

I, Ricardo Carrera RN (name) employed as a physician/nurse/medical technician (cross out inapplicable titles) by: RWJUH, (name of employing, having been requested on hospital or medical center) 12-19-01 (date) by P.O.D. Whicker #359-South Brunswick (name, title and employer) pursuant to N.J.S. 2A:62A-10, to withdraw or otherwise obtain certain bodily specimens from the person of Dominic DeFrank, to wit: (name of subject) Alcohol/Blood Samples, (specimens requested) and to deliver such bodily specimens to a law enforcement officer, do hereby certify, pursuant to N.J.S. 2A:62A-11, that on 12-19-01 (date) at 0130 o'clock AM/PM I withdrew or otherwise obtained the aforesaid bodily specimens pursuant to the provisions of N.J.S. 2A:62A-10 from the person of Dominic DeFrank in (name of subject) a medically acceptable manner and I delivered all such bodily specimens to P.O. D. Whicker #359, (name) South Brunswick Police Dept., a law enforcement officer. (title & employer)

I further certify that the foregoing statements made by me are true to the best of my knowledge. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

SIGNATURE OF RICARDO CARRERA

At trial, the State clarified the process as to how Whicker obtained the signed certification from Nurse Carrera.

Q: Let me ask you some questions about that. How is that process accomplished, when you place somebody under arrest and you would like to have drug -- blood drawn from them at the hospital, is there a particular procedure that South Brunswick uses and that they've trained you to do?

A: Yes, there is. What we would do is we would contact either a registered nurse or phlebotomist, someone who is trained in taking blood samples. What we do is we have a blood kit that we actually give; it's sealed kit, we give it to the individual who is going to be taking the blood. And, then we actually watch the process from entire -- from the start to finish, up until ...


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