STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY POPOVICH,
Defendant-Appellant.
____________________________________
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2862-07T4
APPROVED FOR PUBLICATION
February 17, 2009
Submitted December 2, 2008 - Decided
Before Judges Wefing, Parker and LeWinn.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 08-01-12.
Stephen M. Pascarella, attorney for appellant.
Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Patricia B. Quelch,
Assistant Prosecutor, of counsel; Courtney Darsch,
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
WEFING, P.J.A.D.
Following a trial de novo in the Law Division, defendant
was found guilty of driving while intoxicated, N.J.S.A. 39:4-50.
He appeals from that conviction. After reviewing the record in
light of the contentions advanced on appeal, we reverse.
APPELLATE DIVISION
February 17, 2009
A-2862-07T4
2
Defendant was stopped while driving on August 12, 2007, in
Lake Como. The facts surrounding that stop are not material to
this appeal. He agreed to take a breathalyzer test, and the
results showed a blood alcohol level of .13 and .14. Defendant
was arrested and charged with driving while intoxicated.
Defendant, together with his attorney, appeared on November
20 in the Lake Como Municipal Court to defend against the
charge. Defendant's attorney had retained the services of an
expert to assist him in the defense. Following argument, the
municipal court judge granted the request of the municipal
prosecutor for a sequestration order and directed that
defendant's expert was subject to that order. The municipal
court dismissed the objections of defendant's attorney that such
an order would hamper his ability to cross-examine the
prosecution's witnesses. The municipal court judge indicated
that defense counsel, if he felt the need to consult with his
expert before proceeding to cross-examination, could either take
accurate notes of the testimony or order a transcript of the
relevant testimony and then consult with his expert. The
municipal court judge relied upon State v. Lanzel, 253 N.J.
Super. 168 (Law Div. 1991), which held that expert witnesses are
as subject to sequestration as lay witnesses.
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3
Faced with that ruling, defendant entered a conditional
plea of guilty, waiving any jurisdictional defects and any
question of jeopardy. Defendant agreed upon the record that if
the sequestration order were reversed in the Law Division, the
matter would be remanded to the municipal court for trial, and
the prosecution would be free to seek to establish either a per
se violation through the Breathalyzer readings or a violation
based upon the arresting officer's observations of defendant.
All parties agreed that the purpose of proceeding in this
fashion was to permit defendant to appeal the sequestration
order to the Law Division.
The Law Division judge, after argument, found that the
municipal court judge had not abused his discretion in excluding
defendant's expert, although he noted that he would have
exercised that discretion differently. He entered an order
finding defendant guilty of violating N.J.S.A. 39:4-50.
Defendant now appeals to this court, arguing that it was error
to order the sequestration of his expert. We are compelled to
agree.
N.J.R.E. 615 provides simply that "[a]t the request of a
party or on the court's own motion, the court may, in accordance
with law, enter an order sequestering witnesses." Whether to
order sequestration generally rests within the sound discretion
A-2862-07T4
4
of the trial court. State v. Miller, 299 N.J. Super. 387, 399
(App. Div.), certif. denied, 151 N.J. 464 (1997).
That discretion, however, must be exercised in light of the
underlying policy of sequestering witnesses during a proceeding.
"The reason for sequestration is to prevent prospective
witnesses from hearing what the other witnesses detail in their
evidence, for the less a witness hears of another's testimony
the more likely is he to declare his own knowledge simply and
unbiased." Ibid. (quoting State v. DiModica, 40 N.J. 404, 413
(1963)).
Defendant's expert, however, was not being called to
testify with respect to his knowledge of the underlying facts of
this incident for, quite simply, he had no knowledge of those
underlying facts. Rather, he was being called to offer an
expert opinion on the validity and reliability of the blood
alcohol readings that were obtained through the Breathalyzer
testing. We note that no question was raised with respect to
the qualifications of defendant's expert; both the municipal
court judge and the Law Division judge were familiar with the
individual and recognized him as an expert.
To sustain a finding of driving while intoxicated, there
must be proof of the "proper administration" of the test before
the results can be admitted into evidence and relied upon.
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State v. Maure, 240 N.J. Super. 269, 279 (App. Div. 1990),
aff'd, 123 N.J. 457 (1991) (citation omitted). "This includes
full proof that the equipment was in proper order, the operator
qualified and the test given correctly." Ibid. (citation
omitted).
In our judgment, State v. Lanzel, supra, the case upon
which the municipal court judge and the Law Division judge both
relied, is distinguishable from the present matter. The issue
in that case arose in the context of a pre-trial hearing at
which both the State and the defendant presented expert
psychiatric testimony. A sequestration order had been entered,
and the assistant prosecutor sought leave to have her expert
remain in the courtroom while defendant's expert testified; she
noted that the State had not received the updated reports from
defendant's expert. 253 N.J. Super. at 169. Further, she
argued that the testimony of her expert would not be influenced
by his having heard the testimony of defendant's expert "because
the proposed testimony of each expert is contradictory to the
other." Ibid. The trial court rejected these arguments,
concluding that to exempt the expert from sequestration "would
contravene the purpose of sequestration, which is to secure the
opinion uninfluenced by the evidence of another expert." Id. at
172.
A-2862-07T4
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Here, we are not confronted with a case in which each side
has an expert witness, each holding opinions differing from the
other. Rather, defendant seeks to present an expert who will
offer an opinion on the sufficiency and reliability of the
testing methods employed by the police. The most reliable way
to secure that opinion would be to permit the proposed expert to
hear the testimony by which the State seeks to secure the
admission of those test results.
Further, we are of the view that to interpret N.J.R.E. 615
to authorize the routine sequestration of expert witnesses in a
matter such as this is contrary to the terms of N.J.R.E. 703,
which provides that an expert may base his opinion upon "facts
or data . . . perceived by or made known to the expert at or
before the hearing." By its use of the preposition "at," the
rule clearly envisions an expert observing trial proceedings and
then commenting upon what he has heard.
The order under review is reversed, and the matter is
remanded to the trial court for further proceedings.
