Many decisions
involving DWI issues have been handed down by the Supreme Court and
the Appellate Division over the past months. The most important
involves the determination of the scientific reliability of the new breath test device which is being implemented
throughout the State of New Jersey for evidential breath testing
purposes known as the Alcotest 7110 MK III-C.
The importance of
this case cannot be overstated. Besides being the first
comprehensive evaluation of this new breath test device in the
United States, the Chun decision will profoundly effect the manner
in which prosecutions for driving while intoxicated will be handled
throughout our State. The absence of a determination of these issues
over more than two years also has adversely effected the State's
ability to prosecute Defendants due to the uncertain status of
breath test results where this device is used.
An important line of
New Jersey cases has also arisen as a result of the United State
Supreme Court decision in a matter entitled Crawford v. Washington.
The Crawford case requires the State to produce witnesses to prove
"testimonial" aspects of criminal prosecutions, so that a
Defendant's sixth Amendment right to the confrontation can be exercised.
This decision recognizes that documents presented by the State to
provide elements of its case, cannot be admitted into evidence if challenged, as
documents cannot be cross- examined by their very nature.
New Jersey Courts
have applied this principle in DWI cases
where blood samples have been taken to establish the Blood
Alcohol Content of Defendants. In State v. Berezansky, the Appellate
Division held that laboratory certificates of blood test results
could not be used to prove compliance with testing procedures, in
the absence of testimony by the laboratory technician who conducted
the test. Similarly, in State v. Renshaw the Court held that the
State cannot demonstrate that a blood sample taken from a Defendant
was taken in a reasonable manner without the testimony of the nurse
or phlebotomist who took the sample.
These decisions are
important in affording a Defendant the
opportunity to require the State to prove it's case with
testimony which in turn, will allow cross examination by the
Defendant's attorney. This will provide the Court with important
information in determining whether procedures employed in
withdrawing blood meet applicable standards.
