On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0073-09.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011
Before Judges Cuff, Fisher and Simonelli.
The opinion of the court was delivered by FISHER, J.A.D.
In this appeal, defendant argues the Confrontation Clause of the Sixth Amendment was violated when the State, in attempting to prove his blood alcohol content, relied upon the testimony of an expert who supervised but did not actually perform the test on defendant's blood sample. We reject this argument and affirm.
Following a motor vehicle accident, in which defendant sustained personal injuries, defendant was issued summonses for driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, and failure to wear a seatbelt, N.J.S.A. 39:3-76.2(f). At trial in municipal court, the State called Mark W. Maxwell, a forensic scientist, to testify about defendant's blood alcohol content (BAC). Maxwell testified that he did not actually perform the test but instead observed another chemist, Major Mitchell, examine defendant's blood sample with a gas chromatograph; Mitchell was being retrained and required supervision. Maxwell signed the laboratory report, certifying the accuracy of the testing.
Defendant also argued, on the basis of his own expert's testimony, that there was no scientific support for Maxwell's application of a standard deviation of only five percent to the results obtained from the gas chromatograph, which placed defendant's BAC at .081, and above the legal limit. Defendant's expert, the former Chief Forensic Scientist for the New Jersey State Police Forensic Laboratories, testified that a deviation figure between nine and ten percent should have been applied, and if so, the result would place defendant's BAC below the legal limit.
The municipal judge rejected defendant's argument that the State's failure to call Mitchell violated the Confrontation Clause. He also rejected the testimony of defendant's expert and convicted defendant of a per se DWI violation, N.J.S.A. 39:4-50. As a third time offender, defendant was sentenced to a 180-day jail term; the municipal judge also imposed a ten-year suspension of his operator's license and registration, a $1006 fine, and other financial penalties. The other summonses were dismissed.
Defendant appealed to the Law Division. Judge Robert Neustadter rejected all of defendant's arguments, including the claim of a violation of the Confrontation Clause, in finding defendant guilty of DWI; he imposed the same jail sentence and other penalties as had the municipal judge.
Defendant appealed to this court, presenting the following arguments:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING TESTIMONY AND THE LAB REPORT INTO EVIDENCE THROUGH A CHEMIST THAT DID NOT PERFORM THE TESTING, AS THE ADMISSION OF SUCH EVIDENCE VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES UNDER THE UNITED STATES CONSTITUTION, AS WELL AS DEFENDANT'S CONCOMITANT RIGHTS UNDER THE NEW JERSEY CONSTITUTION.
II. THE TRIAL COURT ERRED, IN ACCEPTING THE STATE'S PROFFERED EVIDENCE REGARDING THE DEVIATION IN TESTING, THEREBY RULING THAT SUFFICIENT EVIDENCE EXISTED TO PROVE A PER SE VIOLATION OF ...