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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

Monday, March 30, 2015

Revisions to 39:6B-2 in 2014 Makes driver's license suspension discretionary for first offense of driving without motor vehicle liability insurance

Revisions to 39:6B-2 in 2014 Makes driver's license suspension discretionary for first offense of driving without motor vehicle liability insurance P.L. 2013, c.237 -
Enacted: January 17, 2014
Effective: January 17, 2014
Area of Law: Municipal

On January 17, 2014, Governor Christie signed A-1844 into law as P.L. 2013, c.237. The new law took effect on January 17, 2014. A copy of the law is attached and is available on the Judiciary Infonet under Legal Reference/Legislation Affecting Courts. Below is a summary of the law.

The new law amends N.J.S.A.39:6B-2 to provide that the one-year driver’s license suspension penalty for a first offense of driving without the required motor vehicle liability insurance coverage may be reduced or eliminated by the court if the person provides satisfactory proof of insurance at the time of the hearing. A person who is convicted for a first offense of operating a motor vehicle without the required motor vehicle liability insurance coverage remains subject to a fine of not less than $300 nor more than $1,000 and a period of community service to be determined by the court.

Sunday, March 29, 2015

39:4-88 Traffic on marked lanes aka unsafe lane change

39:4-88  Traffic on marked lanes aka unsafe lane change  2 points

When a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations:

a.A vehicle shall normally be driven in the lane nearest the right-hand edge or curb of the roadway when that lane is available for travel, except when  overtaking another vehicle or in preparation for a left turn.

b.A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.

c.Upon a highway which is divided into 3 lanes, a vehicle shall not be driven in the center lane except when overtaking or passing another vehicle or in preparation for a left turn or unless the center lane is at the time allocated for traffic moving in the direction the vehicle is proceeding and is signposted to give notice of that allocation.

d.The State Highway Commissioner may by regulation or local authorities may by resolution or ordinance with respect to highways under their jurisdiction designate right-hand lanes for slow moving traffic and inside lanes for traffic moving at the speed designated for the district as provided under this chapter, and when the lanes are signposted or marked to give notice of the designation a vehicle may be driven in any lane allocated to traffic moving in the direction in which it is proceeding, but when traveling within the inside lanes the vehicle shall be driven at approximately the speed authorized in such lanes and speed shall not be decreased unnecessarily so as to block, hinder or retard traffic.

e.When such roadway had been divided in such a manner that there are three or  more lanes for traffic in any one direction, no truck of 10,000 pounds registered gross weight or over shall be driven in the farthest left-hand lane, except:

(1)when and to the extent necessary to prepare for a left turn; a truck may be driven in the farthest left lane for up to one mile to prepare for a left hand turn as authorized under this paragraph;

(2)when necessary to enter or leave such roadway by entrance or exit to or from the left lane; a truck may be driven in the farthest left lane for up to one mile to prepare to enter or leave the roadway as authorized under this paragraph;

(3)when reasonably necessary in response to emergency conditions; for the purposes of this paragraph, "emergency conditions" shall include, but not be limited to: poor visibility, snow, accidents, or the presence of emergency vehicles.

amended 1951, c.23, s.47; 1968, c.432; 2013, c.86, s.1.
 

39:4-88.1  Penalties, fines.
2.The penalty for a violation of failing to keep right under R.S.39:4-82 or failure to observe traffic lanes under R.S. 39:4-88 shall be a fine of not less than $100 or more than $300.  In addition to any fine that may be imposed, a surcharge of $50 shall be imposed on each person found guilty of a violation of R.S.39:4-82 or R.S.39:4-88. The State Treasurer shall annually deposit the surcharge into the fund established pursuant to section 3 of P.L.2013, c.86 (C.39:4-88.2).