State v. Casele

• Decision Date: 04 February 1985
• Citation: 198 N.J.Super. 462,487 A.2d 765
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lawrence F. CASELE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 462

198 N.J.Super. 462

487 A.2d 765

STATE of New Jersey, Plaintiff-Respondent, v. Lawrence F. CASELE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Jan. 8, 1985.

Decided Feb. 4, 1985.

James R. Bodnar, Medford, for defendant-appellant.

Robin D. Eckel, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney).

Before Judges MICHELS and PETRELLA.

The opinion of the court was delivered by

PETRELLA, J.A.D.

Defendant was convicted of causing death by automobile ( N.J.S.A. 2C:11-5), and was thereafter sentenced to 18 months in State Prison with a four-month period of parole ineligibility. He was also ordered to pay a $500 fine and was assessed $25 payable to the Violent Crimes Compensation Board. Defendant's motion for a judgment of acquittal or in the alternative for a new trial was denied. His sentence was stayed pending this appeal. We affirm.

On this appeal defendant contends that the trial judge erred in (1) refusing to suppress the results of his blood alcohol test or to dismiss his indictment based on alleged deprivation of constitutional right to due process because the State failed to demonstrate that the blood sample was withdrawn in a medically acceptable manner, and failed to preserve his blood sample for independent testing; (2) denying defendant's motion for a judgment of acquittal because the State failed to prove that he knowingly operated a vehicle in an intoxicated condition and because there was no evidence that he operated the vehicle recklessly, and (3) imposing an excessive sentence.

Predicated on the proofs adduced at trial the jury could well have found the following facts beyond a reasonable doubt. Defendant Lawrence Casele and his friend Michael Donnelly went out to various taverns on the evening of March 12, 1983. Defendant conceded that he drank two bourbon and sodas at a tavern in Manahawkin where they first stopped. He and his friend then went to a bar on Long Beach Island where defendant drank some more bourbon and soda. They met some young ladies there and went to their house where they had a mixed drink at about 3 a.m. on March 13, 1983.

Defendant testified that while driving back to Long Beach Island from Barnegat at the speed limit a deer ran into the middle of the road and stopped, causing him to try to go around it to the right. Defendant said that when the deer crossed the road to his right, he oversteered to the left, slammed on the brakes and the car slid across the road onto the shoulder and into a telephone pole.

Donnelly, who had been seated in the passenger seat, fell between the bucket seats. Defendant got out of the car, put Donnelly in the back seat and went to seek help. By the time he returned to the scene of the accident, the police and an ambulance had arrived. Patrolman Severini of the Barnegat Township Police Department was dispatched to the scene at 6:15 a.m. Defendant asked the police officer for help for Donnelly who was alive and covered with blood in the back seat of the car. Severini smelled alcohol on defendant's breath and asked defendant whether he had been drinking. Defendant answered affirmatively. He also said that the car had spun and hit the pole when he swerved to avoid hitting a deer. The police officer walked about 75 yards behind the crash site looking for deer tracks in the sandy shoulder of the road, but was not able to find any.

A police officer from the Barnegat Township Police Department whose job involved traffic accident investigation studied the accident scene. That officer testified that based on the "yaw marks" made on the roadway when a tire turned and broke contact with the road, defendant's car had been travelling 53.7 miles per hour. He also said that the shoulder was sandy and that he observed one tire mark on the shoulder for about 110 feet up to the yaw mark, and that the absence of brake marks at the pole area indicated that no brakes had been applied.

Donnelly was taken to the hospital where he later died. Severini then spoke to defendant in the hospital and ascertained that he was willing to submit to a blood test. After defendant filled out a consent form they went to the hospital emergency room where a nurse presented the doctor with a bottle of Cutex nail polish remover which the doctor used to swab defendant's arm before withdrawing blood. ¹ At about 9 a.m. the blood was withdrawn into two vials in the presence of Severini who thereafter brought the vials of blood to police headquarters in an ice pack and then transported them to the county laboratory where they were given to an officer who refrigerated them.

Analysis of the blood sample revealed that defendant's blood alcohol level was 0.13%. After the test was completed any remains of the specimen were destroyed. The individual who had done the analysis testified that the mean standard deviation for this test was 0.02% and that the entire blood sample was usually used up during testing.

There was testimony on the State's case to the effect that 0.13% blood alcohol level indicated intoxication and would involve impaired ability to function, which included delayed reaction time. That witness also testified that if the alcohol level was 0.13% at 9 a.m., it was even higher at 6 a.m.

An analytical chemist called by defendant as an expert witness testified that if there were errors resulting from laboratory blunders and subjective evaluations, the blood alcohol content reading of 0.13% could actually have been as low as 0.04% and as high as 0.22%.

I

We reject defendant's argument that the blood sample was not drawn in a medically acceptable manner because nail polish remover, a possible contaminant, was used as a swabbing agent. At the State's request the individual who had done the laboratory tests on the defendant's blood, analyzed a bottle of Cutex nail polish remover and concluded that there was no "acetone interference" with the determination of alcohol level in the blood. He also testified that he had conducted experiments demonstrating that the alcohol concentration in blood specimens did not increase over a three-month period even when no preservatives were used. Here only a short period of time expired and a preservative had been added. Defendant in his brief acknowledges that State v. Rypkema, 191 N.J.Super. 388, 392-393, 466 A.2d 1324 (Law Div.1983), indicated that proof that the blood sample had been obtained in a hospital by qualified medical personnel ordinarily suffices to establish the requirement that the blood was drawn in a medically acceptable manner and environment. However, defendant argues that Rypkema is distinguishable because the doctor's use of nail polish remover to swab defendant's arm before withdrawing blood, places the chemical integrity of the blood in doubt.

Defendant relies on People v. Douglas, 16 Misc.2d 181, 183 N.Y.S.2d 945, 946 (Cty.Ct.1959) and People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708, 709 (Cty.Ct.1958), wherein the respective trial judges had suppressed blood test results in drunk driving prosecutions because defendants' arms had been swabbed with alcohol before blood was withdrawn. Unlike the present case, however, in those New York cases there had been testimony by the chemists who examined the blood specimens that the traces of alcohol on defendants' skin might have affected the test results by producing an elevated alcohol level. We neither express approval of those opinions nor indicate that we would follow such reasoning in this State.

There is no evidence in the case before us that the use of nail polish remover as a swabbing agent affected the blood test results in any way. Indeed its use precluded a claim of potential external alcohol influence on the test results. ² We are satisfied that under the circumstances existing here, where the blood was taken by a physician, assisted by a nurse in a hospital emergency room and where there was no showing of unacceptable behavior, nor evidence that the swabbing agent affected the results, that the sample was withdrawn in a medically acceptable manner. See State v. Woomer, 196 N.J.Super. 583, 585-587, 483 A.2d 837, (App.Div.1984); State v. Burns, 159 N.J.Super. 539, 544, 388 A.2d 987 (App.Div.1978).

II

In connection with defendant's argument that he was denied due process by the State's failure to retain any portion of the blood sample, defendant relies in part on Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), which held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." There, a request to examine the accomplice's extra-judicial statements was the basis for defendant's motion for a new trial based on newly discovered evidence. Defendant also argues that he was precluded from obtaining his own independent tests of the blood sample taken, and inferentially that his ability to cross-examine expert witnesses was affected. ³

Defendant's arguments fail based on our prior decision in State v. Kaye, 176 N.J.Super. 484, 423 A.2d 1002 (App.Div.1980), certif. den. 87 N.J. 316, 434 A.2d 69 (1981). In that case defendant had been convicted of causing death by automobile. He had argued that the blood alcohol test results should be excluded because the State had not saved a portion of the blood sample for discovery purposes. We held that the State's failure to do so did not violate defendant's due process rights. Id., 176 N.J.Super. at 490, 423 A.2d 1002.

Moreover, the recent United States Supreme Court decision in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) is somewhat analogous in principle to our holding in the instant case that the consumption of the blood in the testing and the failure to retain any of the sample does not mandate a new...