Municipal Court improperly admitted into evidence Drinking Driving Questionnaire (DDQ) and Drinking Driving Report (DDR). State v. Kuropchak 216 N.J. 360 (2015)
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.
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.
HELD:
1. 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. 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 falls 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.
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.
