STATE OF NEW JERSEY v. DAVID J. HERNANDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0756-07T40756-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID J. HERNANDEZ,

Defendant-Appellant.

__________________________________

 

Submitted October 14, 2008 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 8-07-CT-22.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; David S. Bradley, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Eric Mark, Assistant Prosecutor, on the brief).

PER CURIAM

After entering a conditional guilty plea, defendant David J. Hernandez was convicted of a second offense of driving while intoxicated, N.J.S.A. 39:4-50. The municipal court based defendant's conviction on an elevated blood alcohol reading he produced on the Alcotest MK III-c device. At sentencing, the municipal court suspended defendant's driving privileges for two years, ordered him to perform community service and attend an educational program, and imposed various fines and penalties. The Law Division upheld the conviction and the sanctions.

Defendant appeals his conviction on two grounds: (1) the police officer read from an incorrect form when he explained to defendant his rights concerning the Alcotest, and (2) the court denied him confrontation by admitting and relying upon a hearsay letter from the State Police, which stated that the officer who administered the Alcotest to defendant had been duly recertified as a Breathalyzer operator before receiving his training on the Alcotest device.

We affirm the Law Division's determination that the officer's reading of the incorrect consent form to defendant was inconsequential. However, we remand for further consideration of the confrontation issue in light of supervening Supreme Court precedent.

The pertinent chronology is substantially undisputed. On October 20, 2006, defendant was stopped by a South Bound Brook police officer, who suspected that he had been driving while under the influence of alcohol. Defendant was taken to the police station for testing of his blood alcohol concentration ("BAC"). At the station, Lieutenant John Prudente then advised defendant that there are adverse consequences for refusing to submit a breath sample. In doing so, Prudente mistakenly read aloud from the standard form that pertains to commercial drivers rather than drivers of non-commercial vehicles such as defendant. The commercial driver version of the form varies from the non-commercial version as to the allowable BAC levels and to the sanctions involved. Defendant submitted to the test, and produced a reading of .17 BAC, well above the legal limits. See N.J.S.A. 39:4-50(a).

After an exchange of pretrial discovery, defendant moved before the municipal court to suppress the BAC results on two grounds. First, he argued that his submission to the testing was tainted because his rights had been read from the incorrect form. Second, defendant argued that the test results must be excluded because the discovery materials suggested that Prudente had lacked the required recertification on the Breathalyzer when he became certified to administer the Alcotest. See N.J.A.C. 13:51-1.6(c) and N.J.A.C. 13:51-1.8.

To address defendant's latter contention, the prosecutor submitted at the motion hearing a letter from the State Police. The letter confirmed that Prudente had been recertified on the Breathalyzer on March 2, 2003, for a period of three years, and therefore met that prerequisite when he was trained on the Alcotest within the three-year time span. Defense counsel objected that the letter had not been supplied to him during the discovery period. He also argued that the letter was inadmissible hearsay, and that he had a constitutional right to confront and cross-examine the author of the letter under Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194 (2004) (holding that the Confrontation Clause forbids the admission of "testimonial" hearsay statements), and its progeny.

The municipal judge denied the motion to suppress. In the course of doing so, the judge relied upon the substance of the State Police letter, which he found an admissible business record. The judge also found that the officer's reading of the commercial version of the refusal form did not vitiate defendant's voluntary submission to the breath testing.

After his motion to suppress was denied, defendant entered into a conditional plea of guilty, preserving his right to appeal. The Law Division then reviewed the matter de novo, and upheld the conviction. We now examine defendant's suppression arguments.

With respect to the officer's reading of the commercial version of the consent form, we concur with the State that this inadvertent error was inconsequential, at least in the particular context of this case where defendant was charged with a substantive violation of N.J.S.A. 39:4-50 rather than a refusal to submit to breath testing. The form is prescribed by N.J.S.A. 39:4-50.2(e), which requires that "[t]he police officer shall . . . inform the person arrested of the consequences of refusing to submit to [the] test," through the reading of a "standard statement prepared by the director [of the Motor Vehicle Commission]." Here, defendant did not refuse to have his breath tested. Had he been charged with a refusal, we agree that the reading of the erroneous form would have been more troublesome. In the present context, however, the officer's mistake was inconsequential.

As to the admissibility of the State Police letter without confrontation, that issue is directly affected by the New Jersey Supreme Court's recent decisions in State v. Chun, 194 N.J. 54 (2008) and State v. Sweet, 195 N.J. 357 (2008). In Chun, which upheld the general admissibility of Alcotest results subject to certain caveats, the Court specifically required that in each case, the State produce evidence of the operator's qualifications to administer the test "through a certificate or a current operator card." 194 N.J. at 141. The Court held that such certificates and operator cards "fall squarely within the traditional business record exception to the hearsay rule, N.J.R.E. 803(c)(6)." Ibid. The Court also held that such routine documents "are not testimonial within the contemplation of Crawford." Ibid. The Court observed that even if there were "some constitutional infirmity in permitting these documents to be offered in evidence . . . all defendants will be able to exercise their right to cross-examine the individual to whom these documents actually pertain." Ibid. The Court also ruled in Chun that other "foundational documents" showing that the Alcotest equipment was in good working order, are admissible business records and do not trigger a right of confrontation. Id. at 142-45.

Thereafter, in Sweet, supra, the Court held that an official certificate showing that Breathalyzer equipment is in good working order is likewise an admissible business record, and the State need not produce the authors of such certificates for confrontation. 195 N.J. at 370-71, 373. The Court reasoned that such certificates are non-testimonial items similar to the "foundational documents" classified in Chun, in that they did not report or relate to past facts and were not generated to establish any element of defendant's guilt in a particular case. Id. at 373.

The present record in this case is not sufficiently developed to enable us to apply the Supreme Court's recent guidance in Chun and Sweet. We do not know the particular genesis of the letter from the State Police, and whether it was prepared in the course of routine practice as a business record in the sense of that term contemplated by Chun and Sweet, or whether it instead was created solely for the purposes of this particular DWI prosecution. We do not know who wrote it, to whom it was sent, when it was written, or how it was maintained. The letter, which we presume is uncertified, is neither a current operator card nor a certificate, which were specifically declared non-testimonial business records in Chun. Given these evidential gaps, we find it prudent to remand this matter to the Law Division for reconsideration in light of Chun and Sweet, and for the development of a record addressing the issues implicated by those supervening precedents. The remand shall be completed within forty-five days of this opinion.

Affirmed in part and remanded in part. We do not retain jurisdiction.

A copy of the letter has not been furnished in our record.

Defendant's reliance on State v. Widmaier, 157 N.J. 475, 481 (1999), which discusses the function of the standard statement, is misplaced, because Widmaier involved a refusal scenario.

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A-0756-07T4

October 28, 2008