On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-07-1345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez, and Waugh.
By leave granted, the State appeals the Law Division's April 27, 2012 order denying its application for a Dyal subpoena*fn1seeking the results of a blood test performed during defendant William R. Billingham's hospitalization following an automobile accident. The test results are sought for use in prosecuting Billingham on charges of fourth-degree assault by auto, contrary to N.J.S.A. 2C:12-1(c)(2). We reverse.
We discern the following facts and procedural history from the record on appeal.
At about 2:20 a.m. on March 22, 2009, Billingham rear-ended a motor vehicle on Interstate 295 in Camden County. Both vehicles were traveling in the center lane of the three-lane highway. The impact caused the vehicle in front of Billingham to overturn onto its roof. Billingham's vehicle was sufficiently damaged that the jaws-of-life were required to extract him. Billingham, who was a State Police detective driving an unmarked car, told one of the police officers on the scene that he "apparently fell asleep."
Emergency medical services (EMS) units from Bellmawr and Haddonfield responded to the scene. The driver of the other vehicle was taken by ambulance to a hospital in Camden, where he was treated for cuts and abrasions to his hand and released. Billingham was transported to Cooper University Hospital, where he was treated for six fractured ribs and cuts and abrasions to his arms and head. A blood test was performed for treatment purposes. The results were not disclosed to or requested by any law enforcement personnel at the time of the accident.
In early June, the Attorney General received an anonymous letter alleging, among other things, that alcohol had been a factor in Billingham's accident. It further alleged that there had been a cover up by other State troopers at the scene. The letter stated "if you were to test [Billingham's] blood at the hospital, it would cause the testing apparatus to explode." The Office of State Police Affairs (OSPA) in the Department of Law and Public Safety opened an investigation into those allegations the day the letter was received.
In August, the Superintendent of State Police issued an administrative subpoena duces tecum*fn2 to the hospital, seeking records from Billingham's hospitalization following the accident. The hospital provided records that included his blood test results and notes on statements he made to hospital personnel. According to the subsequent OSPA report, Billingham's "blood alcohol level on admission to the hospital was 321, which was over the limit of 40 cited by the trauma treating physician in the emergency room as indicating alcohol intoxication." An expert report prepared for the State indicates that this blood alcohol level is the equivalent of a blood alcohol concentration of 0.276.
In September, the OSPA investigator interviewed four paramedics and EMT responders who had treated Billingham at the scene and in the ambulance. The interviews were recorded, but were not taken under oath. The witnesses were told that their statements would be part of an official police report and could be used in official proceedings.
Paramedic Christopher Lamkin of the Virtua Mobile Intensive Care Unit (MICU) of Haddonfield assisted in removing Billingham from his vehicle, transferring him to the ambulance, and treating him in the ambulance on the way to the hospital. Lamkin stated that he did not detect any smell of alcohol when speaking to Billingham in his car at the scene. After Billingham was in the ambulance, "there was a slight odor of alcohol. But he wasn't the only one in the back of the ambulance at the time and there were a lot of other smells also - gasoline and diesel fumes." Lamkin stated the odor could have emanated from someone else in the ambulance, because "sometimes [with] volunteer ambulances, you can never rule that out." Lamkin indicated that if Billingham had "openly admit[ted] to using . . . alcohol," he would have noted this in the EMT chart.
Paramedic Jennifer Somers, also of the Haddonfield MICU crew, assessed Billingham for life-threatening injuries while he was still inside his vehicle, helped extricate him from the vehicle, and reassessed his injuries after he was loaded into the ambulance. She determined that he had a possible head injury as well as minor cuts and lacerations. She did not recall smelling alcohol either in Billingham's car or on his person.
EMT Joseph Lutz of the Bellmawr EMS unit assisted with preparing Billingham to be loaded into the ambulance after he had been removed from his car and placed on a stretcher. Lutz stated that he did not smell any alcohol, and that "[t]he scene was very heavy with other fumes." Asked if he smelled alcohol in the ambulance, Lutz, who drove the ambulance while Billingham was receiving care in the back, stated, "[n]one that I could pick up." He said Billingham made no statements about whether he had been drinking that night. Lutz stated,
There was no indication, based on what I knew about [Billingham] and from the very minimal contact that I had with him, that said that there was alcohol involved. But the circumstances involved in the accident, the time of the morning, based on where it was and how it appeared, the thought had certainly crossed my mind that it may have been alcohol related.
Amy Long, an EMT with the Bellmawr EMS unit, responded to the scene with Lutz and rode in the ambulance with Lamkin and Billingham. Asked whether she suspected that the accident was alcohol related, she replied:
Not really. There were no beer bottles falling out of his car or anything like that. There was a smell of alcohol once we got in the ambulance, but there had been several people in and out of the ambulance. So you can't even say it would be him directly or you or me or whoever. So no it was not blatantly obvious that that's what it was.
Asked if there had been "any discussion at all about alcohol use as a cause of the accident" at the scene or during the ambulance ride, Long responded:
I don't think so. When we were able to calm [Billingham] down he was able to tell us that he had a medical history of seizures. So we were wondering if he had a head injury. That could cause you to be confused. . . . I mean it wasn't even an overwhelming smell so something like in the air.
Long reported that Billingham did not volunteer any information as to whether he had been drinking.
According to Lamkin, Billingham "was very upset and concerned about the other vehicle and if he had hurt anybody," and was "repeatedly concerned about his job." He "was concerned that somebody was hurt and that he may have screwed up." Lamkin said he told Billingham "on several occasions that 'everything's going to be okay.' And he's like 'no it's not, this is my job.'" Lamkin thought Billingham's concern for his job might have been connected to the smell of alcohol, but said also "[m]aybe he made a careless move and that's what he was remorseful about. I don't know." At the hospital Lamkin observed that Billingham "was still very upset about the whole incident and he was still asking about the other people. He thought that I was lying to him when I told him the other people were okay."
According to Somers, Billingham "repeated a few times that his career was over. He repeated a few times 'what happened?' And then when we told him what happened he always asked the same question, 'was anybody hurt?'" She assumed his concerns about his career "had to do with the fact of getting in a multi-vehicle accident." ...