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
