Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500 www.njlaws.com
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Sunday, May 10, 2015

State v. Adkins __ NJ __ (A-91-13)

State v.  Adkins  __ NJ __ (A-91-13)

  Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw, for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

McNeely, which held that the natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review, but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384 U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a warrant is typically required for the taking of blood, the officer might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable manner. Id. at 770-71.

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol.

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.” Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been established in a United States Supreme Court decision to a case pending review in New Jersey at the time the decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies retroactively to cases that were in the pipeline when it was decided.

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court adheres to that test without any superimposed exception.

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts should focus on the objective exigency of the circumstances that the officer faced in the situation.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.


State v. Perini Corporation


State v. Perini Corporation (A-121/122/123/135-11;
          070558)
          The statute of repose does not begin to run on claims
          involving an improvement that serves an entire project
          such as a high temperature hot water (HTHW) system --
          including those parts constructed in multiple,
          uninterrupted phases -- until all buildings served by
          the improvement have been connected to it.  In
          addition, the statute of repose does not apply to
          claims relating solely to manufacturing defects in a
          product used in the HTHW system.

State v. Kingkamau Nantambu (A-97-13


State v. Kingkamau Nantambu (A-97-13; 073589)
          When considering the admissibility of a recording
          containing a partial omission, the trial court must
          employ a two-part analysis.  First, the trial court
          must determine if the omission is unduly prejudicial,
          conducting an objective analysis focused on the
          evidentiary purposes for which the recording is being
          offered.  If the trial court, in its discretion, finds
          the omission unduly prejudicial, it must then consider
          whether it renders all or only some of the recording
          untrustworthy, and suppress only that portion deemed
          untrustworthy.

State v. Julie Kuropchak


State v. Julie Kuropchak (A-41-13; 072718)
          The municipal court’s admission of the Alcotest
          results without the foundational documents required by
          State v. Chun, 194 N.J. 54 (2009) was error.  Further,
          because the DDQ and DDR contained inadmissible
          hearsay, which may have unduly influenced the
          municipal court’s credibility findings, the matter is
          remanded for a new trial.

State v. K.P.S.


State v. K.P.S. (A-82-13; 073307)
          The decision rendered by the appellate panel in co-
          defendant’s appeal was not the law of the case in
          defendant’s later-heard appeal.  Defendant had a due
          process right under the New Jersey Constitution to
          have a meaningful opportunity to be heard on his
          appeal.

STATE OF NEW JERSEY VS. CHRISTOPHER MAZZARISI A-1860-13T4


STATE OF NEW JERSEY VS. CHRISTOPHER MAZZARISI
          A-1860-13T4
In this case, we examine the application of the Supreme Court's decisions in State v. Sugar (Sugar I), 84 N.J. 1 (1980), and State v. Sugar (Sugar II), 100 N.J. 214 (1985) to a case in which police surreptitiously recorded conversations between a defendant and his attorney when defendant surrendered after charges had been filed, a witness reported defendant had fired a gun at her, a search warrant was issued, and officers executing the warrant at defendant's residence observed a bullet hole in the wall and seized a gun and shell casing. Although we conclude the intrusion did not constitute a violation of the Sixth Amendment, we affirm the order excluding the testimony of three police witnesses and reverse an order that dismissed the indictment without prejudice. 

IN RE APPEAL OF THE DENIAL OF THE APPLICATION OF Z.L. FOR A FIREARMS PURCHASER IDENTIFICATION CARD AND THREE HANDGUN PERMITS A-5848-12T1


IN RE APPEAL OF THE DENIAL OF THE APPLICATION OF Z.L. FOR A FIREARMS PURCHASER IDENTIFICATION CARD AND THREE HANDGUN PERMITS
A-5848-12T1

We clarify that an application for a firearms purchaser identification card and handgun permits may be denied in circumstances where the applicant had been accused of assaulting his wife, but acquitted at trial, and where the police responded to his home on several occasions thereafter to address domestic dispute complaints brought by his wife. The application was properly denied pursuant to N.J.S.A. 2C:58-3(c)(5). 

STATE OF NEW JERSEY VS. TAWIAN BACOME A-3734-12T1

STATE OF NEW JERSEY VS. TAWIAN BACOME
          A-3734-12T1
Based on speculation that defendant and a passenger in his vehicle were involved in illegal drug activity, police officers attempted to follow but lost sight of the vehicle in or near Newark and waited in Woodbridge for its return. Once the vehicle returned, the officers stopped it, ostensibly because the passenger was not wearing his seatbelt. On approaching, an officer, who did not testify, observed defendant reach under his seat. Both driver and passenger were then ordered out of the vehicle; after the passenger exited, an officer was able to observe in plain view materials that suggested drug usage.
page2image19464 page2image19624 page2image19784 page2image19944 page2image20104

Based on that observation, a warrantless search of the vehicle ensued, and illegal drugs were found.
Because defendant's mere entry into and departure from Newark did not permit a reasonable suspicion of illegal drug activity and because the State had failed to present facts "that would create in a police officer a heightened awareness of danger" if the passenger were allowed to remain in the vehicle, State v. Smith, 134 N.J. 599, 618 (1994), the court found no sufficient ground for the ordering of the passenger out of the vehicle and reversed the denial of the suppression motion.
Judge Nugent filed a dissenting opinion regarding this determination.
In addition, the court noted that only hearsay testimony supported the assertion that the driver reached underneath his seat. Despite the understanding that N.J.R.E. 101(a)(2)(E) permits the admission of hearsay at a suppression hearing, the court suggested there may be circumstances where the consequences resulting from the suppression hearing are of such magnitude that the admission of hearsay may create a Confrontation Clause deprivation. The court, however, did not further consider this point because it had not been raised by defendant. 

Monday, May 04, 2015

State v. Adkins

State v.  Adkins  __ NJ __ (A-91-13)

  Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw, for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

McNeely, which held that the natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review, but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384 U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a warrant is typically required for the taking of blood, the officer might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable manner. Id. at 770-71.

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol.

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.” Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been established in a United States Supreme Court decision to a case pending review in New Jersey at the time the decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies retroactively to cases that were in the pipeline when it was decided.

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court adheres to that test without any superimposed exception.

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts should focus on the objective exigency of the circumstances that the officer faced in the situation.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.


Thursday, April 30, 2015

single tablet dismissed as de minimis State v. Cancio

single tablet dismissed as de minimis State v. Cancio, Law Div.-Bergen Cy. (Doyne, J.S.C.)  Defendant Alvin Cancio filed a motion to dismiss River Edge summons No. W-2014-000101, in which he was charged with possession of a controlled dangerous substance as de minimis, pursuant to N.J.S.A. 2C:2-11. Defendant was charged with this offense, as well as driving while intoxicated, careless driving and failure to maintain lane after being stopped by police and arrested. The application for de minimis dismissal was opposed by the Office of the Bergen County Prosecutor. The small quantity of Alprazolam found was of little value and no violence or weapons were involved. The pill remained in defendant’s wallet. The court found the prosecutor would be hard-pressed to show prosecuting defendant for possession of a single tablet of Alprazolam under a belief the pill was a sexual enhancer would attack either the supply side or demand side of the drug problem. Further, the court found it unclear what societal harm was caused by defendant’s possession of a single tablet under the belief it was a sexual enhancer. Defendant’s conduct was “trivial,” at least as it pertains to creating a permanent record for a young offender attempting to work and pay off hundreds of thousands of dollars of medical bills that arose from a car accident that left him severely injured. Incarceration or a permanent record for inadvertently possessing a single tablet of a CDS would not help defendant, the hospital or society. Defendant’s motion to dismiss complaint-summons number 0252-S-2014-000101 as de minimis was granted.

source  http://www.njlawjournal.com/id=1202721090238/Unapproved-Opinions-March-1218-2015#ixzz3Yns3ajyH

repeated emails not deminimis State v. Crosby,

repeated emails not deminimis
State v. Crosby, Law Div. (Bergen County) (Doyne, A.J.S.C.)  Defendant moved to dismiss complaint No. S2014-00092-0261charging him with harassment under
 N.J.S.A. 2C:33-4, a petty disorderly persons offense, based on his numerous emails and text messages to a doctor expressing his dissatisfaction with the doctor’s services. The court denied the motion, finding that while the Assignment Judge has limited discretion to dismiss actions that are too trivial or trifling to require prosecution pursuant to N.J.S.A. 2C:2-11, it could not be said that defendant’s repeated communications to his doctor expressing his dissatisfaction were not made with the purpose to harass, and did not annoy, disturb, irritate or bother the doctor. Further,  the harassment was not so trivial that it posed no risk to society. Therefore, defendant’s conduct was the type sought to be prevented by N.J.S.A. 2C:33-4(a) and dismissal was inappropriate. [Filed March 13, 2015]

source
Read more: http://www.njlawjournal.com/id=1202721090238/Unapproved-Opinions-March-1218-2015#ixzz3Ynr4Jhot

Tuesday, April 28, 2015

Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report State v. Kuropchak

Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report State v. Kuropchak __ NJ __ (A-41-13 )
The municipal court’s admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court’s credibility findings, the matter is remanded for a new trial.

State of New Jersey v. Julie Kuropchak (A-41-13) (072718)
Argued October 21, 2014 -- Decided April 28, 2015
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court considered the admissibility of evidence in the prosecution of driving while intoxicated (DWI) cases.
On January 25, 2010, at approximately 2:00 p.m., defendant had a sip of a margarita. Later, feeling ill, defendant took Nyquil and a homemade remedy of apple cider vinegar and water. At 8:30 p.m., defendant met with her doctor who prescribed an antibiotic and two pain relievers. Defendant immediately picked up the prescriptions, but did not take either. Driving home from the pharmacy, defendant turned onto a two-lane, two-way road that sloped uphill. When she reached the top of the hill, she saw an approaching vehicle straddling the center line. Defendant hit her brakes, swerved, collided with the oncoming vehicle, and lost consciousness.  
When she woke up, the car was filled with smoke and she tasted blood in her mouth. Officer Dennis Serritella responded to the scene and performed three sobriety tests, two of which defendant failed. He observed that she looked down multiple times, spaced out her steps, slurred her speech, and had bloodshot and watery eyes. Concluding that she was intoxicated, he arrested her.
       Defendant agreed to take an Alocotest (breathalyzer), which certified operator Officer Jose Brito performed. First, he observed her for twenty minutes. At 10:08 p.m., the machine performed a control test. He then administered the first set of tests at 10:11 (tests one through four). On tests two and three, defendant failed to produce the minimum volume of air for the Alcotest to generate a blood-alcohol level. The first and fourth tests yielded results, but they were not within an acceptable tolerance range. At 10:35 p.m., the Alcotest machine self-performed another control test. Officer Brito administered a second set of tests at 10:37 (tests five and six). Both tests yielded results, but they were also not within an acceptable tolerance range. The machine performed a control test at 10:53 p.m., after which Officer Brito administered a third set of tests at 10:54 (tests seven through nine). Defendant failed to produce a minimum volume of air on test seven. Tests eight and nine, however, both generated results of .10% BAC, which were within an acceptable tolerance range.
        At trial, Gary Aramini, an Alcotest expert, and Officer Serritella testified. Aramini said that the tests were done improperly and that the State had failed to enter the right simulator solution Certificate of Analysis and the most recent Calibrating Unit New Standard Solution Report into evidence. He also testified that Officer Brito failed to wait the required twenty minutes between the second and third set of tests and that lip balm, blood in defendant’s mouth, and a cell phone in the testing room may have tainted the results. The court admitted the Drinking Driving Questionnaire (DDQ) and Drinking Driving Report (DDR) into evidence as business records. The court also admitted Officer Brito’s Alcotest Operator Certification, the Alcotest Calibration Certificate, Part I -- Control Tests, the Alcotest Calibration Certificate, Part II -- Linearity Tests, the Calibrating Unit New Standard Solution Report for solution control lot number 08J060, and a Certificate of Analysis 0.10 Percent Breath Alcohol Simulator Solution. This Certificate was admitted without objection; however, the State concedes that it was for lot 09D065 rather than 08J060, which was the simulator solution used in defendant’s control test.
        On August 10, 2010, the municipal court found defendant guilty of DWI. On de novo review, giving due deference to the municipal court’s credibility determinations, the Law Division found defendant guilty of DWI.
The Appellate Division affirmed defendant’s conviction. This Court granted defendant’s petition for certification, limited to the admissibility of the documentary evidence, the Alcotest results, and the sufficiency of the observational evidence.   
      HELD: The municipal court’s admission of the Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which may have unduly influenced the municipal court’s credibility findings, the matter is remanded for a new trial.
        1. If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division. The Law Division reviews the municipal court’s decision de novo, but defers to credibility findings of the municipal court.   
Appellate courts should defer to trial courts’ credibility findings. Occasionally, however, a trial court’s findings may be so clearly mistaken that the interests of justice demand intervention and correction.   
        2. A court may convict a defendant of DWI if she registers a blood alcohol level of 0.08% or higher. This finding of guilt is subject to proof of the Alcotest’s reliability. The operator must observe the subject for twenty minutes. After twenty minutes, the Alcotest machine automatically conducts a blank air test to determine if there are any chemical interferents in the room. Additionally, a control test is conducted; if the Alcotest is working properly, that control test will generate a result between 0.095 and 0.105. The State must also admit certain foundational documents: (1) the most recent calibration report prior to a defendant’s test, with part I--control tests, part II--linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard solution report prior to a defendant’s test; and (3) the certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests to prove that the Alcotest was in working order.   
        3. Here, the last semi-annual calibration was completed on January 12, 2010, with simulator solution control lot 09D065. The solution control lot for the control test performed prior to and following the three rounds of breath tests performed on defendant was solution control lot 08J060. Under Chun, the State was required to provide the Certificate of Analysis of the 0.10 Simulator Solution used in defendant’s control test. The State, however, mistakenly admitted the Certificate of Analysis for the semi-annual simulator solution control lot 09D065 instead. Additionally, the most recent Calibrating Unit New Standards Solution Report was not admitted into evidence during the State’s case. Given that the foundational documents were not admitted into evidence, the State presented no evidence as to the reliability or accuracy of the Alcotest results and, therefore, defendant’s conviction of per se intoxication was improper.   
        4. Defendant contends that the DDR and the DDQ were admitted into evidence in violation of the Confrontation Clause. A person charged with a criminal offense has the right to confront his accusers. Officer Serritella’s documentation of the incident must be considered the recordation of testimonial statements because his observations were made to establish that defendant was driving while intoxicated. Since the officer testified at trial and was extensively cross-examined, the Confrontation Clause was not violated by the admission of the DDR and DDQ.   
        5. As for defendant’s contention that the DDR and DDQ are hearsay not subject to any exception, the Court observes that hearsay is inadmissible unless it fall into one of certain recognized exceptions. To qualify as a business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events described in it, and (3) under circumstances that indicate its trustworthiness. Foundational reports for breath testing, with certain qualifications, are admissible under the business record exception to the hearsay rule. Here, however, the DDR contains a narrative account of what the officer saw at the scene and includes factual statements, observations, and the officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the “remarks” section and the DWI report, in turn, contains several inadmissible opinions. The DDQ’s content thus also rises to the level of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside the scope of the business records exception.   
        6. Here, the municipal court heard defendant’s testimony concerning the events on the day of the incident, as well as the testimony of Officer Serritella. The court found the Officer’s testimony more credible than defendant’s and therefore found defendant guilty. The court’s credibility determinations, however, were made after the DDR and the DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after the Alcotest results were admitted into evidence despite the lack of requisite foundational documents.  
      The cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal court’s credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of events in this case – the inappropriate admission of the Alcotest results as well as the DDR and DDQ – that the Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained hearsay, Officer Serritella’s testimony would have alleviated much of that problem. Here, however, the cumulative effect of the errors may have tilted the municipal court’s credibility findings.   
      The judgment of the Appellate Division was REVERSED. The matter was REMANDED for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.   

 Full opinion at http://www.njlaws.com/Kuropchakcase.htm