On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 33-04.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wecker, Fuentes and Graves
This is defendant's appeal from a conviction for driving while intoxicated (DWI), as proscribed by N.J.S.A. 39:4-50. After being found guilty in the municipal court of Manville, defendant appealed to the Law Division, where a trial de novo again resulted in defendant's conviction. He was sentenced just as he was in municipal court to an eight-month loss of driving privileges. Motor vehicle offenses of careless driving, N.J.S.A. 39:4-97, and failure to wear a seatbelt, N.J.S.A. 39:3-76.3, were merged with defendant's DWI conviction. Defendant also was required to complete an alcohol counseling program and the Intoxicated Driver Resource Center Program.*fn1 All of defendant's penalties, with the exception of his continued alcohol counseling, have been stayed pending appeal. We now reverse.
Evidence adduced at trial supports these facts. At approximately 6:40 p.m. on December 3, 2003, Sergeant Jeffrey Patrone of the Manville Police Department was dispatched to the scene of a one-car motor vehicle accident on Dukes Parkway. Upon his arrival at the scene of the accident, Sergeant Petrone observed a white Pontiac Grand Am automobile resting against a utility pole. The windshield of the car was cracked, and defendant, Richard F. Berezansky, was inside the vehicle, bleeding from the head. Sergeant Petrone noticed that defendant was shaking, and the officer detected alcohol on his breath. Defendant informed Sergeant Petrone that he had had two beers and that he suffered from Parkinson's disease. Because he was concerned for defendant's health, Sergeant Petrone did not perform any psychophysical tests to determine whether defendant was intoxicated prior to his being transported to Somerset Medical Center.
Sergeant Petrone followed defendant to the hospital, where the officer requested a blood sample from defendant to determine his blood alcohol level. Sergeant Petrone supplied a signed blood alcohol request form; the laboratory technician and a nurse who was present when defendant's blood was drawn also signed the form. The technician then capped the vials of defendant's blood and handed them to Sergeant Petrone. He placed the vials in a cardboard box, which he sealed and returned to police headquarters. Upon his arrival at police headquarters, Sergeant Petrone placed the box inside a locked metal box in the evidence refrigerator. He then placed the key to the box in the evidence locker for the custodian of evidence.
Detective Michael Guilbert*fn2 is the custodian of evidence for the Manville Police Department. Detective Guilbert testified that he was the only person who had access to the sample while it was held in police headquarters. On the evening of December 3, Detective Guilbert entered information about the evidence into a computer and sent that information to the New Jersey State Police Laboratory. At approximately 2:00 p.m. on December 4, 2005, Detective Guilbert removed the samples from the cardboard box, placed the vials into a bag, heat-sealed the bag, and transported it to the New Jersey Police Laboratory in Trenton, commonly referred to as the Central Regional Laboratory. Detective Guilbert gave the samples to Megan Williams, a clerk at the laboratory, who signed for the evidence.
Defendant's blood, however, was actually tested at the State Police South Regional Laboratory rather than the Central Regional Laboratory. Detective Guilbert could not explain how defendant's blood samples were transported from the Central Regional Laboratory to the South Regional Laboratory; indeed, Detective Guilbert stated that he had no idea where the South Regional Laboratory was located.
The laboratory certificate indicated that the sample of defendant's blood contained a blood alcohol level of 0.33%, more than three times the 0.10% threshold then set by statute.
N.J.S.A. 39:4-50a(1)(ii).*fn3 Over defendant's objection, the trial judge found that the laboratory certificate was properly admitted into evidence under the business records exception to the hearsay rule. N.J.R.E. 803(c)(6).
In letters addressed to the municipal prosecutor for the Borough of Manville, dated December 19, 2003 and January 26, 2004, defendant gave notice that he questioned the chain of custody of his blood sample and expressed his intention to confront the custodian. In the December 19, 2003 letter, defendant demanded the preservation and production of the unused portion of his blood sample, stating that he sought the blood sample in order to obtain independent testing and analysis. See N.J.S.A. 39:4-50.2(c) and (d). Defendant reiterated those demands in a subsequent letter to the municipal prosecutor dated January 26, 2004. Detective Guilbert testified that he received the final evidence report from the State Police Laboratory, but he did not seek or obtain any vials of defendant's unused blood and was not requested to do so by the municipal prosecutor.
The State failed to produce any evidence in discovery or at trial to establish how or why defendant's blood samples were transported from the Central Regional Laboratory to the South Regional Laboratory. The laboratory certificate, which is dated December 24, 2003, states that the laboratory's policy is to destroy unused portions of a sample ninety days after the date of the final report. Defendant's multiple requests for the sample were transmitted to the municipal prosecutor well within the ninety-day period. The record does not provide any information about the maintenance or disposal of the remainder of the sample defendant sought to test.
The State also failed to comply with defendant's requests for documentation pertaining to the laboratory certificate or the tests performed. In his December 19 letter, defendant demanded the notes of the chemist who performed the analysis on defendant's blood and all graphs and printouts related to the analysis. Defendant's January 26, 2004 letter to the municipal prosecutor repeated that demand. The State failed to supply this documentation.
Defendant twice demanded a speedy trial, first in his December 19, 2003 letter to the municipal prosecutor and second in a March 10, 2004 letter addressed to the municipal court administrator. The municipal court trial began on May 6, 2004.
On appeal, defendant presents these ...