Two-Sided Standard in DWI Cases

By Mitchell Ignatoff
New Jersey Law Journal
June 29, 2007

The New Jersey Appellate Division has recently come up with one standard for blood samples and another for breath samples when it comes to the right of confrontation in drunken driving cases.

On March 22, the appeals court ruled in State v. Kent, A-3137-05, that state witnesses must testify about the procedures they used in obtaining and analyzing a blood sample. The state cannot use the written statement (certification) of the witness in place of his testimony, according to the ruling. The judges relied on Crawford v. Washington, 541 U.S. 36 (2004), to hold that the defendant has the right to cross-examine the person who extracted the blood and the person who analyzed it. Otherwise, written statements by these witnesses must be excluded.

In Crawford, the U.S. Supreme Court defined "witnesses against the accused" in the Sixth Amendment as those who bear testimony. The Court held that written statements made to prove a fact in court — "testimonial" statements — are not admissible in criminal prosecutions. The witness who made the statement must testify.

Kent said the nurse's certification that the blood was drawn in a medically acceptable manner was not a business record, and the nurse had to testify. Kent also held that the state chemist who analyzed the blood must testify; his findings were not admissible as business records, either.

But less than two months later, the Appellate Division ruled on May 11 in State v. Dorman, A-2873-05, that written statements by state police officers — stating they tested the machine before and after the defendant blew into it and found it to be in proper working order — were not testimonial statements because they were made without a particular defendant in mind. As a result, the defendant did not have the right to cross-examine the author of these written statements.

This is clear nonsense. The Sixth Amendment does not use the word "accusers." It uses the term "witnesses against the accused." One could argue that the state police officers were not accusers since they had not selected this defendant for prosecution by simply testing the machine. But they are certainly witnesses against the accused since their testimony is necessary for the state to prove the machine was in proper working order and that the defendant was driving drunk. The state cannot prove its case without these officers' statements or testimony. The test of whether their written statements are testimonial is not whether it was prepared against this accused, but whether the statement was prepared to prove a fact in court.

The Supreme Court said in Crawford that testimonial statements are "statements made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The New Jersey Supreme Court has noted in State v. Johnson, 42 N.J. 146 (1964), that the Breathalyzer was created solely to help prosecute drunken driving cases.

The Dorman holding shows that our courts are willing to bend, even ignore, the Sixth Amendment to admit the readings of the breath-testing machine into evidence without using witnesses. They deny the defendant's right to confront witnesses against him because to do so makes use of breath-testing machines too burdensome in light of the number of certifications needed. The manufacturer provides seven certifications for each Alcotest machine, so under Crawford the manufacturer would need to bring in seven witnesses for each drunken driving case.

Only one argument under the constitution would make the U.S. Supreme Court abandon the principle of confrontation — necessity. Breath testing is not a necessity. Blood testing is more accurate but it's more physically invasive. The upshot: the constitution loses to a pinprick.

Breath testing is expensive. Each Alcotest machine costs each municipality $12,000. Municipalities also have to pay for training and annual machine recertification by the manufacturer. The state has to maintain a special unit of state police officers to test the machines. I am sure the private testing laboratories would be happy to be paid to keep a regional office open and staffed with a technician so blood could be drawn in a medically acceptable manner. The state would not have to pay for technicians or equipment, and the state police could be freed to do other things.

There are clear alternatives to breath testing that keep constitutional protections intact.

Ignatoff, a certified criminal trial attorney, heads a firm in Middlesex.