State v. Sweet

• Decision Date: 23 June 2008
• Docket Number: No. A-1/38 September Term 2007,A-1/38 September Term 2007
• Citation: 949 A.2d 809,195 N.J. 357
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William G. SWEET, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. James D. Dorman, Defendant-Appellant.
• Court: New Jersey Supreme Court

949 A.2d 809

195 N.J. 357

STATE of New Jersey, Plaintiff-Respondent, v. William G. SWEET, Defendant-Appellant.

State of New Jersey, Plaintiff-Respondent, v. James D. Dorman, Defendant-Appellant.

No. A-1/38 September Term 2007

Supreme Court of New Jersey.

Argued February 5, 2008.

Decided June 23, 2008.

Joseph P. Rem, Jr., Hackensack, argued the cause for appellant in State v. Sweet (Rem Zeller, attorneys; James B. Seplowitz, of counsel and on the brief).

Annmarie Cozzi, Assistant Prosecutor, argued the cause for respondent in State v. Sweet (John L. Molinelli, Bergen County Prosecutor, attorney).

David A. Stefankiewicz, North Wildwood, argued the cause for appellant in State v. Dorman (Stefankiewicz & Barnes, attorneys).

Michael J. Williams, Deputy Attorney General, argued the cause for respondent in State v. Dorman (Anne Milgram, Attorney General of New Jersey, attorney).

Leslie A. Stolbof Sinemus, South Orange, argued the cause for amicus curiae Association of Criminal Defense Lawyers-New Jersey in State v. Sweet (Ms. Sinemus and Sharon Bittner Kean, Madison, attorneys).

Boris Moczula, Assistant Attorney General, submitted a letter in lieu of brief on behalf of amicus curiae Attorney General of New Jersey in State v. Sweet (Anne Milgram, Attorney General, attorney).

Justice RIVERA-SOTO delivered the opinion of the Court.

In these separate appeals from convictions for driving while intoxicated — which we have consolidated for purposes of this opinion — we are asked to address a common issue: whether the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and the New Jersey Constitution, N.J. Const. art. I, ¶ 10, bar the introduction into evidence of foundational documents concerning the operational status of a Breathalyzer®, a device used to measure a subject's blood alcohol content.¹

We conclude that the ampoule testing certificates at issue in State v. Sweet and the breath testing instrument inspection certificates at issue in State v. Dorman are hearsay statements nevertheless admissible under the business records exception to the hearsay rule codified at N.J.R.E. 803(c)(6). We further conclude that those hearsay records are nontestimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and thus are admissible under the Confrontation Clause.

I.

The relevant facts in these separate appeals are readily stated.

State v. Sweet

In the early morning hours of November 12, 2004, Officer John Carty of the Hillsdale Police Department observed a car driven by defendant William G. Sweet traveling at a high rate of speed and straddling the center double-yellow line, heading northbound on Kinderkamack Road. Officer Carty followed Sweet for a distance and observed him run a red light. At the intersection of Kinderkamack Road and Piedmont Avenue, the traffic light was red and a sign post advised that right turns on red were prohibited; undeterred, Sweet turned right on red at that intersection. Sweet then pulled into a side street, turned around, and brought the car to a stop, turning off his lights but leaving the motor running. Officer Carty, observing where Sweet had come to a stop on the side street, entered the next parallel side street and turned around. While he was doing so, Sweet pulled away and headed back towards Kinderkamack Road. Officer Carty followed, this time activating his overhead light, and eventually Sweet came to a stop on the side of the road.

When he approached the car and addressed Sweet, Officer Carty noticed that Sweet's speech was slurred, that he smelled "a very strong odor of an alcoholic beverage [on Sweet's] breath," and that Sweet's eyes were "watery and bloodshot." Officer Carty inquired "if [Sweet] had anything to drink that night[,]" Sweet replied that "he had three beers early in the night[.]" Officer Carty then administered several field sobriety tests to Sweet, whose performance was unsatisfactory. Based on those observations, Sweet was arrested, advised of his Miranda² rights at the scene, and transported to the Hillsdale police station, where Officer Carty again read the Miranda warnings to Sweet.³ Taking over for Officer Carty, Officer Donald McLaughlin of the Hillsdale Police Department twice administered a Breathalyzer® test to Sweet. The Breathalyzer® readings showed blood alcohol concentration levels of 0.10% and 0.11%, respectively, by weight of alcohol in Sweet's blood.

Sweet was tried before the Hillsdale Municipal Court on four summonses, charging him with failure to observe a traffic signal, in violation of N.J.S.A. 39:4-81; making a prohibited right turn, in violation of N.J.S.A. 39:4-115(a); failing to keep to the right, in violation of N.J.S.A. 39:4-82; and driving while intoxicated, in violation of N.J.S.A. 39:4-50(a)(1)(ii). Focusing solely on the issue relevant to this appeal, at trial Sweet challenged the admission of two "Certificates of Analysis — Breath Alcohol Reagent Ampoule," prepared by Guth Laboratories, concerning certain reagent ampoules used in the operation of the Breathalyzer® device. Sweet objected to the admission of each of the certificates on the basis that "it is hearsay, and that I don't know what grounds — what exception to the hearsay rule the Prosecutor's proffering it under." The municipal court overruled that objection, noting that "[t]here's sufficient case law which permits the introduction of the certificate of analysis of the ... [ampoule because] it is a business record[.]" Sweet was convicted on all of the violations lodged against him. He was sentenced to the minimum seven-month suspension of his driving privileges, as required by N.J.S.A. 39:4-50(a)(1)(ii), and additional fines, penalties, assessments, and surcharges, as well as twelve hours of mandatory detention and attendance in an Intoxicated Driver Resource Center.

Pursuant to Rule 3:23-8, Sweet lodged an appeal de novo on the record before the Superior Court challenging his conviction for driving while intoxicated. Among the matters he argued before the Law Division, Sweet claimed that, under Crawford, supra, he was entitled to confront and cross-examine the author of the ampoule certificates. In response, the State noted that the ampoule certificates do not address an element of the charge of driving while intoxicated and, hence, the proscriptions of State v. Simbara, 175 N.J. 37, 811 A.2d 448 (2002), were inapplicable.

In a written order and decision, the Law Division again found Sweet "guilty beyond a reasonable doubt, de novo, of driving while intoxicated contrary to N.J.S.A. 39:4-50[.]" Specifically addressing Sweet's Crawford argument, it noted that, under Crawford, "out[-]of[-]court statements by witnesses that are testimonial in nature are barred under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross[-]examine the witness." It reasoned that "the certificate of analysis was used to satisfy a condition of admissibility as to [Breathalyzer®] results[ and that i]t was not used as proof of guilt on the [driving while intoxicated] charge." It therefore concluded that "the application of the Confrontation [C]lause ... is not involved[ and] the certificate of analysis was properly admitted into evidence."⁴

Sweet appealed that ruling to the Appellate Division which, in an unpublished decision, affirmed Sweet's conviction and sentence. Noting that among the issues raised on appeal was Sweet's contention that the trial court "erred in admitting into evidence the certificate of analysis of the contents of the [ampoule]," the panel determined that it did "not find it necessary to address in detail [Sweet]'s argument directed to the admission of the certificates of the contents of the [ampoules] used[.]" According to the Appellate Division, Sweet "was convicted of driving while intoxicated based not only on the [Breathalyzer®] readings, but also on the basis of his conduct on the evening in question." In the panel's view, then, the officer's observations of Sweet's conduct when he was detained and his lay opinion that Sweet was intoxicated provided an independent basis for sustaining Sweet's conviction, see State v. Bealor, 187 N.J. 574, 585, 902 A.2d 226 (2006) (explaining that "[s]ince 1924, ... New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication"), thus obviating the need to address the Crawford argument Sweet advanced.

In his petition for certification, Sweet couched the question presented as "[w]hether the Appellate Division erred in failing to overturn [Sweet]'s per se conviction for [driving while intoxicated] where certain lab certificates were admitted into evidence over [Sweet]'s objection based on his Sixth Amendment right to confront the witnesses against him[.]" We granted that petition. State v. Sweet, 191 N.J. 318, 923 A.2d 232 (2007). We also granted leave to appear as amicus curiae to the Association of Criminal Defense Lawyers — New Jersey, and to the Attorney General of New Jersey.

State v. Dorman

At approximately 11:54 p.m. on September 10, 2004, Detective Corporal Edward Gorski of the Wildwood Crest Police Department was on motor patrol traffic detail, parked in a restaurant parking lot on the 5400 block of Atlantic Avenue. Cpl. Gorski observed defendant James Dorman and Frederick Luzier riding their motorcycles;⁵ Dorman and Luzier were stopped at the intersection of Cresse and Atlantic Avenues heading southbound. While stopped at the traffic light, Dorman "started to spin [his] back wheel and create a cloud of white smoke." Once the light turned green, both Dorman's and Luzier's "motorcycles accelerated from the light passing [Cpl. Gorski] at a high rate of speed[,]" a speed he estimated as "well over the speed limit of 25 miles an hour." Cpl. Gorski activated his emergency overhead lights and siren, and gave pursuit.

He caught up with Dorman when Dorman turned onto East Morning Glory...