On certification to the Superior Court, Appellate Division (State v. Sweet) and on certification to the Superior Court, Appellate Division, whose opinion is reported at 393 N.J. Super. 28 (2007) (State v. Dorman).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
[NOTE: These are companion cases to State v. Buda, and State v. J.A., also decided today.]
In these separate appeals from convictions for driving while intoxicated -- consolidated for purposes of this opinion -- the Court considers whether the introduction into evidence of foundational documents concerning the operational status of a Breathalyzer violates a defendant's constitutional right to confront the witnesses against him.
Defendant, William Sweet was stopped in the early morning hours of November 12, 2004, after being observed driving erratically and making an illegal right turn. Sweet appeared intoxicated and his performance in field sobriety tests was unsatisfactory. Sweet was administered a Breathalyzer test which showed his blood alcohol concentration levels to be 0.10% and 0.11%.
Sweet was charged with various traffic violations and driving while intoxicated. Sweet challenged the admission of two "Certificates of Analysis - Breath Alcohol Reagent Ampoule," prepared by Guth Laboratories, concerning certain reagent ampoules used in the operation of the Breathalyzer device. Sweet argued that the certificates were inadmissible hearsay. The municipal court determined that the certificates were admissible as business records, and Sweet was convicted on all violations. In a de novo appeal in the Law Division, Sweet claimed that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), he was entitled to confront and cross-examine the author of the ampoule certificates. The Law Division determined that Crawford was not implicated because the certificates were used to satisfy a condition of admissibility of the Breathalyzer results, and not as proof of guilt on the charge of driving while intoxicated. The Appellate Division affirmed in an unpublished decision. The Appellate Division found it unnecessary to address Sweet's Crawford claim, concluding that the police officer's observations of Sweet's conduct and the officer's opinion that Sweet was intoxicated provided an independent basis for sustaining the conviction. The Supreme Court granted Sweet's petition for certification. 191 N.J. 318 (2007).
On the evening of September 10, 2004, a police officer observed defendant, James Dorman driving his motorcycle at a high rate of speed and spinning his rear wheel creating a cloud of smoke. After Dorman pulled into a driveway, the officer approached and, based on his observations, concluded that Dorman was intoxicated. Dorman's two Breathalyzer readings showed a blood alcohol concentration level of 0.14%.
Dorman was charged with driving while intoxicated. At his municipal trial, Dorman challenged the admissibility of two "Breath Testing Instrument Inspection Certificates" tendered by the State that bracketed the time period during which Dorman's Breathalyzer tests were conducted. Citing Crawford, Dorman asserted that the documents were testimonial and therefore inadmissible under the Confrontation Clause. The municipal court overruled Dorman's objections to the admissibility of the inspection certificates and found Dorman guilty. The Law Division affirmed in an appeal de novo. The Appellate Division also rejected Dorman's Crawford claims, explaining that because the inspection certificates were not created for the specific purpose of establishing an essential element of the offense, they did not trigger a defendant's right of confrontation. State v. Dorman, 393 N.J. Super. 28, 33 (App. Div. 2007). The Supreme Court granted Dorman's petition limited solely to the question whether in light of Crawford, the admission of the Breathalyzer certificates violated the Confrontation Clause. 192 N.J. 475 (2007).
HELD: The ampoule testing certificates and the breath testing instrument inspection certificates are hearsay statements admissible under the business records exception to the hearsay rule. Those records also are non-testimonial and thus are admissible under the Confrontation Clause.
1. The ampoule testing certificates and the breath testing instrument inspection certificates constitute hearsay statements. To qualify under the business record exception to the hearsay rule, N.J.R.E. 803(C)(6), the proponent must demonstrate that the writing: was made in the regular course of business; was prepared within a short time of condition or event being described; and was prepared in circumstances that justify allowing it into evidence. Both the ampoule testing certificates and the breath testing instrument inspection certificates are: (1) made in the regular course of business; (2) prepared contemporaneously with the events they describe; and (3) nothing in the record suggests they are not trustworthy. Thus, they qualify for admission under the business records exception to the hearsay rule. (pp. 13-18)
2. Under Crawford, testimonial statements of witnesses absent from trial may be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. The threshold inquiry is whether the challenged hearsay statement is testimonial. The logic that determines whether a hearsay statement is testimonial is rooted in the Confrontation Clause itself. As Crawford describes, the text of the Confrontation Clause applies to "witnesses" against the accused -- in other words, those who "bear testimony." In the final analysis, neither the ampoule testing certificates nor the breath testing instrument inspection certificates at issue relate to or report a past fact. Nor are they generated or prepared in order to establish any fact that is an element of the offense. The Court reaffirms that "the fact that [foundational documents] may be used to demonstrate that a device, which was used to conduct the breath tests for a particular defendant, was in good working order does not transform them into evidence of an element of the offense nor make them testimonial in the constitutional sense." State v. Chun, 194 N.J. 54, 144 (2008). The Court discerns no meaningful distinction between the foundational documents required for the admission of the Breathalyzer blood alcohol test results and those the Court recently approved in Chun in respect of the Alcotest blood alcohol test results. The Court concludes that neither the ampoule testing certificates nor the breath testing instrument inspection certificates are testimonial within the meaning of the Confrontation Clause, as embodied in either the federal or the State Constitutions. (pp. 18-22)
The judgments of the Appellate Division in both Sweet and Dorman are AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.
The opinion of the court was delivered by: Justice Rivera-soto
In these separate appeals from convictions for driving while intoxicated -- which we have consolidated for purposes of this opinion -- we are asked to address a common issue: whether the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and the New Jersey Constitution, N.J. Const. art. I, ¶ 10, bar the introduction into evidence of foundational documents concerning the operational status of a Breathalyzer(r), a device used to measure a subject's blood alcohol content.*fn1
We conclude that the ampoule testing certificates at issue in State v. Sweet and the breath testing instrument inspection certificates at issue in State v. Dorman are hearsay statements nevertheless admissible under the business records exception to the hearsay rule codified at N.J.R.E. 803(c)(6). We further conclude that those hearsay records are non-testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), and thus are admissible under the Confrontation Clause.
The relevant facts in these separate appeals are ...