On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 39-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Parker and Lyons.
Defendant Theodore Kachel appeals his conviction for driving under the influence of alcohol, N.J.S.A. 39:4-50. Defendant pled guilty in the Monroe Township municipal court by entering a conditional plea of guilty reserving on the record the right to appeal from an adverse determination of his earlier motion to suppress. R. 7:6-2(c). He was convicted in a trial de novo in the Law Division. R. 3:23-8. Defendant was assessed the mandatory fines, penalties, and his driving privileges were revoked for a period of seven months. Defendant argues that the trial court erred in failing to suppress the blood alcohol test in the absence of a certification that the blood was drawn in a "medically acceptable manner."
The facts do not appear to be in dispute. On December 17, 2005, defendant was the driver of a vehicle involved in a onecar accident in Monroe Township. Due to defendant's injuries, he was taken to a hospital where his blood was drawn. The analysis of his blood revealed a blood alcohol concentration 0.14%. Among other motor vehicle summonses, he was given a summons for driving while intoxicated in violation of N.J.S.A. 39:4-50.
On April 17, 2006, defendant's counsel advised the municipal court and its prosecutor that he had received the "blood collection report." Defense counsel noted it failed to state that the blood samples were taken in a medically acceptable manner. He, therefore, advised that he was objecting to the report being introduced into evidence. Defense counsel further requested that the state produce at trial the nurse who allegedly took the blood from defendant.
On June 6, 2006, counsel appeared with his client in the Monroe Township municipal court. At this point, the record is confusing and incomplete on a number of points. The municipal court noted that one of the issues raised at an earlier conference with the court was whether or not blood having . . . been drawn from Mr. Kachel as far as the DWI was admissible[. I]t would be admissible in court based on the fact that counsel argued that the certificate that was signed by the nurse that drew the blood did not have a certification or a blue print . . . that it was drawn in a medically acceptable manner.
Based on the municipal court judge's statement as to the issue, we could interpret defendant's application as a motion to suppress the blood alcohol test. However, in reviewing the hearing transcript and the colloquy among counsel and court, there are also occasions where it appears that the motion was to suppress a certification signed by a nurse who withdrew the defendant's blood because it did not certify that the blood was withdrawn in a medically acceptable manner. To further complicate the issue, it is unclear from the record whether the alleged certification at issue actually existed. In any event, it was never introduced in evidence or marked for identification in the record. We, therefore, are deprived of the ability to view and assess the import of this certification.
Following the court's framing of the issue, the colloquy among the court and counsel continued. The municipal court advised counsel that it did not find that a certification executed in accordance with N.J.S.A. 2A:62A-11 was required in order to admit the blood alcohol test, pursuant to State v. DeFrank, 362 N.J. Super. 1 (App. Div. 2003). Rather, the municipal court pointed to State v. Rypkema, 191 N.J. Super. 388 (Law Div. 1983), and concluded that proof that a blood sample was obtained in a hospital by qualified medical personnel would suffice to establish the requirement that the blood was withdrawn in a medically acceptable manner. The municipal court found that such proof could be provided by, for example, a police officer who may have been present at the collection. No suppression hearing was conducted, however, as to whether the blood was actually withdrawn in a medically acceptable manner. Furthermore, no police officer or other witness so testified.
In the face of the court's ruling, defense counsel pled guilty conditionally, so that he could preserve his right to appeal the denial of the suppression application pursuant to Rule 7:6-2(c). Defendant's guilty plea was then accepted and the fines and penalties assessed.
On October 26, 2006, a trial de novo was conducted on the record in the Law Division. The Law Division judge was also denied the opportunity to review the certificate referred to in the municipal court. There was again confusion on the record as to whether there was a certificate at all. The Law Division judge, however, concluded that State v. DeFrank does not require a certificate as the sole means of proof that a blood sample was taken in a medically acceptable manner. The Law Division judge pointed out that, rather than pleading guilty, defendant could have gone to trial, at which time the State would have had to produce appropriate proofs, which may have included the testimony of a police officer or others that the blood specimen was taken in a medically acceptable manner. Instead, the Law Division judge reasoned, defendant pled guilty and did not take advantage of the opportunity to put the State to its proofs, including the proof that the blood specimen was taken in a medically acceptable manner. The Law Division judge, therefore, convicted defendant and imposed the same fines and penalties as the municipal court.
We find this case troubling on a number of fronts. First of all, it is impossible to adequately assess the content and import of a certification which was never made part of the record, yet underpins much of the argument. Second, the motion to suppress, in and of itself, is unclear. There is a significant question as to whether the defendant was challenging the nurse's certification, the "blood collection report" (which is also not part of the record), or the admission of the blood alcohol concentration test results. In addition, there was no hearing and, consequently, no testimony in the record as to the circumstances surrounding the withdrawal of defendant's blood if the suppression of the blood alcohol test was, in fact, the thrust of defendant's motion.
In sum, we have a confusing, unclear, and incomplete record upon which to review and assess the legal arguments advanced. Accordingly, we reverse and remand the matter to the municipal court to conduct a suppression hearing and direct that, prior to that hearing, defense counsel file a written ...