On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Municipal Appeal No. 4582.
The opinion of the court was delivered by: Sabatino, J.S.C., temporarily assigned.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Sabatino.
This drunk driving case presents another instance concerning the admissibility of hearsay documents under the Confrontation Clause of the Federal and state Constitutions, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004) (reinterpreting the Confrontation Clause to bar the admission against the accused of so-called "testimonial" hearsay declarations), and its progeny. Specifically, we are again asked to consider whether Crawford requires the exclusion of a laboratory report prepared by a State Police chemist and a blood test certificate prepared pursuant to N.J.S.A. 2A:62A-11 by a hospital employee who had extracted blood from the defendant driver at the request of a police officer.
For the reasons we explain in this opinion, we reaffirm our holdings in State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006) (ruling that a State Police chemist's lab report is "testimonial" under Crawford and thus must be excluded unless defendant has an opportunity to cross-examine the chemist), and in State v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (holding that a blood test certificate issued pursuant to N.J.S.A. 2A:62A-11 is likewise "testimonial" under Crawford), particularly in light of the United States Supreme Court's most recent explication of the Crawford testimonial standard in Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 165 L.Ed. 2d (2006). However, we also highlight the practical implications of these constitutional holdings. In doing so, we suggest that legislative or administrative rule-making efforts might be undertaken to assure that the constitutional principles are administered fairly, without placing undue burdens on third-party witnesses and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
Because defendant was deprived of his constitutional rights of confrontation, we hold that the chemist's report and the hospital worker's blood test certificate were improperly admitted as part of the State's evidence at trial. Nevertheless, we sustain his DWI conviction under N.J.S.A. 39:4-50 on independent grounds, based upon the arresting police officer's numerous field observations of intoxication that were not contradicted by competing proofs at the municipal trial and were ratified by the Law Division.
At about 1:35 a.m. on March 18, 2005, defendant Adam J. Kent lost control of his Lincoln automobile while driving on Rae Avenue in Hawthorne. The Lincoln jumped a curb and flipped over onto its roof, landing in the front yard of a residence on Pasadena Place. Parts of the Lincoln were strewn across the roadway and the surrounding area.
Officer James Knepper of the Hawthorne Police Department was dispatched to the accident scene, and he arrived there by approximately 1:40 a.m. Officer Knepper observed the upside-down Lincoln and the surrounding debris on both the west and east sides of Pasadena Place. He also noted tire marks on a curb and across a driveway leading to a snow pile. According to the officer's testimony, the road surface was dry and there was no precipitation.
The officer also saw a person, later identified as defendant, standing next to the Lincoln. Defendant's hair was mussed and his clothes were dirty. The officer asked him whether he was injured. Defendant replied that he was not. The officer then asked defendant if he was the driver and whether there was anyone else in the vehicle. Defendant acknowledged that he was the driver and sole occupant.
At that point defendant asked Officer Knepper if he could retrieve his cell phone from the Lincoln. According to Knepper's trial testimony, the officer then smelled "an odor of an alcoholic beverage on [defendant's] breath," and noticed that defendant's eyes were watery and bloodshot. The officer also noted that defendant was slurring his words and walking very slowly. These observations, as well as the apparently violent nature of the accident, caused the officer to ask defendant if he had drunk any alcoholic beverages that evening. Defendant told the officer that "he only had five beers."*fn2
Defendant's admission that he had consumed five beers and the other observed characteristics of him and the accident scene led the officer to conclude that defendant was intoxicated. The officer issued Miranda*fn3 warnings, and placed defendant in the back of the patrol car. The officer explained at trial that he did not request defendant to perform field sobriety tests, "[d]ue to the nature of the crash" and his concerns about defendant's "safety and possibl[e] . . . internal injuries." In discussing the accident with Officer Knepper, defendant contended that his car had slid while rounding a curve, causing him to lose control.
Emergency medical personnel were summoned. When they arrived, they placed defendant in a neck brace and put him on a back board. The crew members placed defendant into an ambulance and transported him to the emergency room at the nearby Valley Hospital in Ridgewood. Officer Knepper followed the ambulance to the hospital. Upon arrival, he helped the crew remove defendant from the ambulance.
The officer noticed that, once the ambulance crew began attending to him, defendant's demeanor changed from "cooperative" to "antagonist[ic]". According to the officer, defendant demanded to have the neck brace removed and to be taken off the back board. His antagonism surfaced again at the hospital emergency room, fluctuating with moments of cooperation.
Because of the nature of the crash and his perception of defendant's intoxication, Officer Knepper asked hospital staff to draw blood from defendant. That request was documented in a written form, which the officer signed and handed to Roger Gallant, an emergency room employee.*fn4 Gallant then extracted two vials of blood from defendant in the presence of Officer Knepper. The officer watched Gallant prepare the extraction site, one of defendant's arms, using what the officer described as "some type of alcohol wipe prior to administering a needle." The blood was placed into the vials, which Gallant labeled. The vials came out of a sealed package. Officer Knepper did not recall whether the vials were shaken. He had no knowledge of whether the vials contained the appropriate preservatives.
Gallant handed the blood vials to Officer Knepper. He took them immediately to the Hawthorne Police Headquarters and placed them in an evidence refrigerator. Thereafter, Hawthorne Police Detective Robert King removed the blood samples from the refrigerator and delivered them to a clerk of the New Jersey State Police's regional forensic laboratory in Little Falls. King testified at trial that he documented the chain of custody for the vials. There was no testimony, nor any intimation by defense counsel on cross-examination, that either Officer Knepper or Detective King had tampered with the blood vials while they were in their possession.
In addition to the testimony of Officer Knepper and of Detective King, the municipal prosecutor offered several documents into evidence at defendant's trial. Two categories of those hearsay documents, admitted over defendant's objection, are central to defendant's appeal.
In particular, the State offered into evidence Exhibit S-2, a "Bodily Substance Sample Certification" dated March 18, 2005. The certification, which is consistent with N.J.S.A. 2A:62A-11,*fn5 was signed by both Roger Gallant and Officer Knepper. Portions of the certification*fn6 are pretyped; and other portions are handwritten notations that filled in blanks on the form. The certification reads, in pertinent part, as follows:
I, Roger Gallant, a PCA II, at The Valley Hospital, certify that on 3/18/05, 2005 [sic], I obtained the following bodily substance sample from Adam Kent at the request of Ptl. James W. Knepper, #6229, a law enforcement officer from Hawthorne Police Dept., who identified the patient.
The form also reflects that the type of substance extracted from defendant was blood (consisting of "2 gray-top tubes containing Sodium Fluoride and Potassium Oxalate"). It also states that the "venipuncture site" was prepared with "Betadine - supplied by officer in kit."
Exhibit S-2 further recites, in pre-printed language, that the specimen was "given to the [requesting] law enforcement officer" and "was taken pursuant to Section 1 of the New Jersey Public Law 1986[,] Chapter 189*fn7 , and was taken in a medically acceptable manner." In signing the form, Gallant certified that the information it contained was true, and that he was aware that he would be subject to punishment if his statements were willfully false.
Notably, Gallant did not testify at the defendant's trial. There is no indication in the record that he was unavailable to appear for the State, under the standards of unavailability set forth in N.J.R.E. 804(a).*fn8 Nor was Gallant subpoenaed to testify by the defense.
The State also moved into evidence at trial a Certified Laboratory Report (Exhibit S-5) and related toxicology worksheet and gas chromatography documents (Exhibit S-6). These documents were generated by the State Police laboratory. The report was signed by Joseph Messana, a forensic scientist in the laboratory. According to his report, Messana possesses a master's degree in an unspecified field of graduate study, has worked for a State forensic laboratory for fifteen years, and has qualified as an expert witness in court on twenty-one prior occasions.
The report indicates that Messana is "the person responsible for the analysis and the conclusions set forth in the . . . laboratory report," although the worksheet accompanying the report suggests that the ethanol analysis of defendant's blood may have been performed by a technician with the initials "TD." Additionally, the gas chromatography worksheets reflect that persons with the initials "JSM" (likely Joseph Messana), "TD," "MB," and "JC" had participated in that aspect of the testing.
Messana specifically certified on the report that "the equipment used to perform the type of analyses described [in the report] was functioning properly." He further certified that "[t]he test procedures used are accurate, reliable, objective in nature, and performed on a routine basis within the laboratory."
The results reported on Exhibit S-5 showed that defendant's blood alcohol content was 0.103%, a concentration above the legal limits allowable under N.J.S.A. 39:4-50(a)(1). These findings were essentially consistent*fn9 with the corresponding worksheets admitted into evidence.
Exhibits S-5 and S-6 were received into evidence in lieu of any testimony from Messana or from the other State Police laboratory personnel with initials TD, MB, and JC. Again, the record does not reflect that these persons were unavailable to testify, or that they were ever subpoenaed by the defendant.*fn10
The municipal judge admitted S-2, S-5, S-6 and other documents, over the defense's objection, as business records under N.J.R.E. 803(c)(6). At the close of the State's case, defendant moved to dismiss the prosecution, principally because he had been deprived an opportunity to cross-examine at trial the declarants whose assertions were contained in those hearsay documents. The municipal judge denied that motion.
Defendant did not present any live witnesses on his behalf at trial. However, defendant did proffer a report from an expert witness, Gary Lage, Ph.D., a toxicologist. Dr. Lage's report identified what he perceived to be several problems with the analyses of defendant's blood. Among other things, Dr. Lage criticized the incomplete nature of the State's chain of custody documents and their failure to disclose the precision level of the "diluter/pipetter" used in the testing. Noting that defendant weighed approximately 255 pounds and that his blood was not drawn until nearly three hours after the accident at 4:05 a.m., Dr. Lage suggested that at the time of his accident defendant's bloodstream had not fully absorbed the alcohol he had consumed.
Taking into account those factors, as well as various margins of error associated with the pipetter and ethanol involved in the blood testing, Dr. Lage opined that defendant's blood alcohol concentration (BAC) could have been less than the 0.103% reported by the State Police laboratory and, in fact, could have been under 0.10%. Dr. Lage did not, however, offer an opinion that defendant's BAC could have been below 0.08%.
After being supplied with the defense expert's report, the municipal prosecutor stipulated to its admission. The prosecutor also stipulated that the State could not prove beyond a reasonable doubt that defendant's blood alcohol concentration exceeded 0.10%. That concession signified that defendant could only be convicted of a so-called "Tier One" first-time DWI offense under N.J.S.A. 39:4-50(a)(1)(i) (prohibiting driving with a blood alcohol concentration of 0.08% or higher), rather than face more severe penalties for a 0.10% or higher BAC. ...