On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 8-07-CT-22.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2008
Before Judges Sabatino and Simonelli.
After entering a conditional guilty plea, defendant David J. Hernandez was convicted of a second offense of driving while intoxicated, N.J.S.A. 39:4-50. The municipal court based defendant's conviction on an elevated blood alcohol reading he produced on the Alcotest MK III-c device. At sentencing, the municipal court suspended defendant's driving privileges for two years, ordered him to perform community service and attend an educational program, and imposed various fines and penalties. The Law Division upheld the conviction and the sanctions.
Defendant appeals his conviction on two grounds: (1) the police officer read from an incorrect form when he explained to defendant his rights concerning the Alcotest, and (2) the court denied him confrontation by admitting and relying upon a hearsay letter from the State Police, which stated that the officer who administered the Alcotest to defendant had been duly recertified as a Breathalyzer operator before receiving his training on the Alcotest device.
We affirm the Law Division's determination that the officer's reading of the incorrect consent form to defendant was inconsequential. However, we remand for further consideration of the confrontation issue in light of supervening Supreme Court precedent.
The pertinent chronology is substantially undisputed. On October 20, 2006, defendant was stopped by a South Bound Brook police officer, who suspected that he had been driving while under the influence of alcohol. Defendant was taken to the police station for testing of his blood alcohol concentration ("BAC"). At the station, Lieutenant John Prudente then advised defendant that there are adverse consequences for refusing to submit a breath sample. In doing so, Prudente mistakenly read aloud from the standard form that pertains to commercial drivers rather than drivers of non-commercial vehicles such as defendant. The commercial driver version of the form varies from the non-commercial version as to the allowable BAC levels and to the sanctions involved. Defendant submitted to the test, and produced a reading of .17 BAC, well above the legal limits. See N.J.S.A. 39:4-50(a).
After an exchange of pretrial discovery, defendant moved before the municipal court to suppress the BAC results on two grounds. First, he argued that his submission to the testing was tainted because his rights had been read from the incorrect form. Second, defendant argued that the test results must be excluded because the discovery materials suggested that Prudente had lacked the required recertification on the Breathalyzer when he became certified to administer the Alcotest. See N.J.A.C. 13:51-1.6(c) and N.J.A.C. 13:51-1.8.
To address defendant's latter contention, the prosecutor submitted at the motion hearing a letter from the State Police.*fn1
The letter confirmed that Prudente had been recertified on the Breathalyzer on March 2, 2003, for a period of three years, and therefore met that prerequisite when he was trained on the Alcotest within the three-year time span. Defense counsel objected that the letter had not been supplied to him during the discovery period. He also argued that the letter was inadmissible hearsay, and that he had a constitutional right to confront and cross-examine the author of the letter under Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365-66, 158 L.Ed. 2d 177, 194 (2004) (holding that the Confrontation Clause forbids the admission of "testimonial" hearsay statements), and its progeny.
The municipal judge denied the motion to suppress. In the course of doing so, the judge relied upon the substance of the State Police letter, which he found an admissible business record. The judge also found that the officer's reading of the commercial version of the refusal form did not vitiate defendant's voluntary submission to the breath testing.
After his motion to suppress was denied, defendant entered into a conditional plea of guilty, preserving his right to appeal. The Law Division then reviewed the matter de novo, and upheld the conviction. We now examine defendant's suppression arguments.
With respect to the officer's reading of the commercial version of the consent form, we concur with the State that this inadvertent error was inconsequential, at least in the particular context of this case where defendant was charged with a substantive violation of N.J.S.A. 39:4-50 rather than a refusal to submit to breath testing. The form is prescribed by N.J.S.A. 39:4-50.2(e), which requires that "[t]he police officer shall . . . inform the person arrested of the consequences of refusing to submit to [the] test," through the reading of a "standard statement prepared by the director [of the Motor Vehicle Commission]." Here, defendant did not refuse to have his breath tested. Had he been charged ...