State v. Julie Kuropchak , 221 N.J. 368 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Julie Kuropchak (A-41-13) (072718)
Argued October 21, 2014 -- Decided April 28, 2015
FERNANDEZ-VINA, J., writing for a unanimous Court.
In this appeal, the Court considers the admissibility of evidence in the prosecution of driving while
intoxicated (DWI) cases.
On January 25, 2010, at approximately 2:00 p.m., defendant had a sip of a margarita. Later, feeling ill,
defendant took Nyquil and a homemade remedy of apple cider vinegar and water. At 8:30 p.m., defendant met with
her doctor who prescribed an antibiotic and two pain relievers. Defendant immediately picked up the prescriptions,
but did not take either. Driving home from the pharmacy, defendant turned onto a two-lane, two-way road that
sloped uphill. When she reached the top of the hill, she saw an approaching vehicle straddling the center line.
Defendant hit her brakes, swerved, collided with the oncoming vehicle, and lost consciousness. When she woke up,
the car was filled with smoke and she tasted blood in her mouth. Officer Dennis Serritella responded to the scene
and performed three sobriety tests, two of which defendant failed. He observed that she looked down multiple
times, spaced out her steps, slurred her speech, and had bloodshot and watery eyes. Concluding that she was
intoxicated, he arrested her.
Defendant agreed to take an Alocotest (breathalyzer), which certified operator Officer Jose Brito
performed. First, he observed her for twenty minutes. At 10:08 p.m., the machine performed a control test. He then
administered the first set of tests at 10:11 (tests one through four). On tests two and three, defendant failed to
produce the minimum volume of air for the Alcotest to generate a blood-alcohol level. The first and fourth tests
yielded results, but they were not within an acceptable tolerance range. At 10:35 p.m., the Alcotest machine self-
performed another control test. Officer Brito administered a second set of tests at 10:37 (tests five and six). Both
tests yielded results, but they were also not within an acceptable tolerance range. The machine performed a control
test at 10:53 p.m., after which Officer Brito administered a third set of tests at 10:54 (tests seven through nine).
Defendant failed to produce a minimum volume of air on test seven. Tests eight and nine, however, both generated
results of .10% BAC, which were within an acceptable tolerance range.
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.
On August 10, 2010, the municipal court found defendant guilty of DWI. On de novo review, giving due
deference to the municipal court’s credibility determinations, the Law Division found defendant guilty of DWI.
The Appellate Division affirmed defendant’s conviction. This Court granted defendant’s petition for certification,
limited to the admissibility of the documentary evidence, the Alcotest results, and the sufficiency of the
observational evidence. State v. Kuropchak, 216 N.J. 360 (2013).
HELD: 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.
1. If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division. The Law
Division reviews the municipal court’s decision de novo, but defers to credibility findings of the municipal court.
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. (pp 15-17)
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. (pp. 17-18)
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. (pp. 18-20)
4. Defendant contends that the DDR and the DDQ were admitted into evidence in violation of the Confrontation
Clause. A person charged with a criminal offense has the right to confront his accusers. Officer Serritella’s
documentation of the incident must be considered the recordation of testimonial statements because his observations
were made to establish that defendant was driving while intoxicated. Since the officer testified at trial and was
extensively cross-examined, the Confrontation Clause was not violated by the admission of the DDR and DDQ.
(pp. 20-23)
5. 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 fall 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. Here, however,
the DDR contains a narrative account of what the officer saw at the scene and includes factual statements,
observations, and the officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also
does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the “remarks” section
and the DWI report, in turn, contains several inadmissible opinions. The DDQ’s content thus also rises to the level
of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside
the scope of the business records exception. (pp. 23-25)
6. Here, the municipal court heard defendant’s testimony concerning the events on the day of the incident, as well as
the testimony of Officer Serritella. The court found the Officer’s testimony more credible than defendant’s and
therefore found defendant guilty. The court’s credibility determinations, however, were made after the DDR and the
DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after
the Alcotest results were admitted into evidence despite the lack of requisite foundational documents. The
cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal
court’s credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result
reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of
events in this case – the inappropriate admission of the Alcotest results as well as the DDR and DDQ – that the
Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained
hearsay, Officer Serritella’s testimony would have alleviated much of that problem. Here, however, the cumulative
effect of the errors may have tilted the municipal court’s credibility findings. (pp. 25-26)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON;
and JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-41 September Term 2013
072718
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE KUROPCHAK,
Defendant-Appellant.
Argued October 21, 2014 – Decided April 28, 2015
On certification to the Superior Court,
Appellate Division.
John V. Saykanic argued the cause for
appellant (Miles R. Feinstein, attorney; Mr.
Saykanic and Mr. Feinstein, on the briefs).
David A. Malfitano, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney).
John Menzel argued the cause for amicus
curiae New Jersey State Bar Association
(Paris P. Eliades, President, attorney;
Ralph J. Lamparello, of counsel and on the
brief).
Robyn B. Mitchell, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
This case poses important questions about the admissibility
of certain evidence in the prosecution of driving while
1
intoxicated (DWI) cases. After a four-day trial, defendant
Julie Kuropchak was convicted by a Garfield Municipal Court
Judge of DWI contrary to N.J.S.A. 39:4-50. The court heard
testimony from the arresting officer, the officer who operated
the Alcotest machine, defendant’s expert on Alcotest procedure,
defendant, and defendant’s father and brother. The court also
admitted, over defendant’s objection, the Drinking Driving
Questionnaire (DDQ) and Drinking Driving Report (DDR) completed
by the arresting officer upon questioning defendant. Defendant
did not object to various documents, including documents alleged
to establish that the Alcotest breath-testing device was in
working order when used to measure defendant’s blood alcohol
content (BAC).
The municipal court found defendant guilty based on two
independent grounds: first, the officers’ observations of her
behavior, which the court found more credible than defendant’s
account of the incident and; second, the Alcotest results, which
reported a .10 BAC. After a trial de novo, the Law Division
also found defendant guilty based on the officers’ observations
and the Alcotest results. Defendant appealed. The Appellate
Division expressed some reservations about the sufficiency of
the foundational documents offered in support of the Alcotest,
but did not decide the admissibility of the test results. The
panel did determine that the DDQ and DDR were admissible under
2
the business records exception to the hearsay rule and that,
because the arresting officer testified as to the contents of
the reports, there was no violation of the Confrontation Clause
of the Sixth Amendment of the United States Constitution. The
appellate panel held that there was sufficient credible evidence
in the record to support defendant’s DWI conviction and
accordingly affirmed.
We hold that it was error to admit the Alcotest results
without the foundational documents required by State v. Chun,
194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.
Ed. 2d 41 (2008). Further, although we find no violation of the
Confrontation Clause with respect to the admission of the DDQ
and the DDR, we determine that those reports constitute
inadmissible hearsay. We conclude that consideration of this
improperly admitted evidence may have unduly influenced the
municipal court’s credibility findings. Therefore, we reverse
the judgment of the Appellate Division and remand for a new
trial.
I.
On January 25, 2010, defendant and three friends went to
Houlihan’s Restaurant in Hasbrouck Heights. They arrived
between 2:00 and 3:00 p.m. and stayed for approximately two
hours. They shared appetizers, and defendant took a sip of her
friend’s margarita. At trial, defendant testified that she did
3
not drink any other alcohol that day but had taken a dose of
Apidex, an appetite suppressant, at 9:00 a.m. the day before.
After leaving the restaurant, defendant returned home
alone. Feeling ill from a urinary tract infection, defendant
took Nyquil and a homemade remedy of apple cider vinegar and
water. Defendant had an appointment with her doctor at 8:30
p.m. that evening; the doctor prescribed an antibiotic and two
pain relievers. Defendant picked up the prescription at 8:48
p.m. at a pharmacy adjacent to the doctor’s office, but did not
take any medication at that time.
On her way home, defendant turned onto Chestnut Street, a
two-lane, two-way road that slopes uphill in the direction
defendant was driving. As she reached the top of the hill,
defendant saw a vehicle approaching from the opposite direction.
According to defendant, the vehicle was straddling the center
line and thus driving in both lanes. The vehicle had an
interior light on but its headlights were off. Defendant hit
her brakes and swerved to the left of the oncoming car.
According to her testimony, she chose to swerve left instead of
right to avoid the cars parked along the right-hand side of the
road.
Defendant’s car collided head-on with the oncoming vehicle.
The driver of the other vehicle was later charged with driving
while intoxicated. The collision caused defendant to lose
4
consciousness. When she awoke, the airbags had deployed and the
car was filled with smoke and dust. Defendant testified that
she tasted blood in her mouth, her chest hurt, and a piece of
her necklace had become embedded in her neck.
Officer Dennis Serritella of the Garfield Police Department
arrived at the scene. He observed that the vehicles appeared to
have collided head-on and that defendant’s car was in the wrong
lane. Officer Serritella asked defendant for her credentials;
he stated that she stared at him for a “few moments” and then
produced them slowly. According to Officer Serritella,
defendant declined to go to the hospital. She told Officer
Serritella that she was coming from her doctor’s office and
showed him the prescriptions. Defendant tried to drink water,
but was forbidden to do so.
Officer Serritella advised defendant that he was going to
conduct field sobriety tests, and led her to flat ground about
twenty feet from the accident. Officer Serritella began with
the finger-to-nose test, which defendant passed. He then
conducted the one-legged balance test, which requires the
subject to stand on one leg for thirty seconds. Defendant
failed the test, dropping her leg “many times.” She explained
to Officer Serritella that she had had surgeries on her feet at
age thirteen that left her with pinched nerves and rendered her
unable to balance on one leg. Lastly, Officer Serritella
5
conducted the walk-and-turn test, which requires the subject to
walk nine paces in a heel-to-toe manner while keeping her head
up, and then turn around and walk in the opposite direction.
Defendant failed this test, as she looked down multiple times
and spaced out her steps. Officer Serritella also observed that
defendant swayed as she walked, her knees sagged, her speech was
slow and slurred, her demeanor was sleepy, her eyes were
bloodshot and watery, her hands moved slowly, and her face was
pale. However, he did not smell alcohol on her breath.
Based on his observations, Officer Serritella concluded
that defendant was intoxicated. He handcuffed her and brought
her to police headquarters. At several points defendant asked
why she was being treated like a criminal when she had done
nothing wrong. At headquarters, Officer Serritella arrested
defendant and read her Miranda1 rights.
Officer Serritella read defendant the DMV Standard
Statement for Operators of a Motor Vehicle, which informed
defendant of her rights and obligations with respect to
providing a breath sample. Defendant consented to take an
Alcotest, or breathalyzer test. During the municipal court
trial, Officer Serritella testified that all cell phones were
removed from the testing room. Defendant testified that her
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
cell phone was in the testing room the entire time, that she
applied lip balm multiple times during the Alcotest process, and
that she had a tongue ring in her mouth during the tests.
Officer Jose Brito, a certified Alcotest operator,
conducted the tests. Officer Brito observed defendant for
twenty minutes before he administered the Alcotest. At 10:08
p.m., the machine performed a control test. Officer Brito then
administered the first set of tests to defendant at 10:11 (test
one), 10:13 (test two), 10:15 (test three), and 10:17 (test
four). On the second and third tests, defendant failed to
produce the minimum volume of air for the Alcotest to generate a
blood-alcohol level. The first and fourth tests yielded
results, but they were not within acceptable tolerance ranges of
each other.2
At 10:35 p.m., the Alcotest machine self-performed another
control test. Then, Officer Brito administered a second set of
tests at 10:37 (test five) and 10:40 (test six). Both tests
yielded results, but they were not within acceptable tolerance
ranges of each other. The machine performed another control
2 To be valid, an Alcotest must generate two readings within
acceptable tolerance of each other out of a maximum of eleven
attempts. “Tolerance is the range of any set of measurements
that is accepted as being representative of a true reading . . .
[and] the wider the acceptable tolerance between reported
results, the lower our confidence in the accuracy of any of the
reported results.” Chun, supra, 194 N.J. at 110.
7
test at 10:53 p.m., after which Officer Brito administered a
third set of tests at 10:54 (test seven), 10:56 (test eight),
and 10:58 (test nine). Defendant failed to produce a minimum
volume of air on the seventh test. The eighth and ninth tests,
however, both generated a result of .10% BAC, and were thus
within acceptable tolerance of each other.
At trial, Gary Aramini, an expert on the Alcotest procedure
who had reviewed the discovery documents provided to him,
testified for the defense that the Alcotest was improperly
conducted and that the State failed to enter into evidence two
documents that are required under Chun to show that the Alcotest
is properly calibrated: the proper simulator solution
Certificate of Analysis and the most recent Calibrating Unit New
Standard Solution Report. He also stated that Officer Brito
failed to wait the required twenty minutes between the second
and third set of Alcotest sequences. Lastly, Aramini testified
that lip balm, blood in defendant’s mouth, and the presence of a
cell phone in the testing room could have tainted the Alcotest
results.
In addition to testimony, the court admitted into evidence
various documents. Officer Serritella testified and laid a
foundation for the DDQ and DDR. After his testimony and over a
defense objection, the court admitted those documents into
evidence as business records under N.J.R.E. 803(c)(6).
8
The court also admitted into evidence certain documents to
establish a foundation for the Alcotest machine, as well as the
simulator unit that is used to calibrate the device and the
chemical composition of the solutions that the machine requires.
Such foundational evidence is mandatory pursuant to Chun, supra,
194 N.J. at 142. The documents included Officer Brito’s
Alcotest Operator Certification, the Alcotest Calibration
Certificate, Part I -- Control Tests, and the Alcotest
Calibration Certificate, Part II -- Linearity Tests. The latter
two documents were signed by Officer Robert Demler and dated
January 12, 2010; all three were admitted without objection.
The court also admitted the Calibrating Unit New Standard
Solution Report for solution control lot number 08J060 dated
January 25, 2010, and signed by Officer Ronald Polonkay. This
document, however, was admitted at the conclusion of limited
rebuttal testimony from Officer Serritella.
Finally, the court admitted 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. Accordingly, the
State admitted the incorrect document.
On August 10, 2010, the municipal court found defendant
guilty of DWI based on two independent grounds. First, the
9
municipal court found defendant guilty based on the .10 BAC
Alcotest results. Second, the municipal court found that the
officers’ observations of defendant’s behavior at the scene of
the accident established defendant’s guilt.
In its oral decision, the municipal court noted that
Officer Serritella and Officer Brito were “entirely credible,”
“more credible” than defendant. The municipal court also found
that the Alcotest was operated properly. The court noted that,
“without going through each document,” the State entered the
correct documents into evidence to show that the Alcotest was
properly calibrated. The court determined, further, that
defendant’s expert testimony was “unpersuasive.” The court
sentenced defendant, a third-time offender, to 180 days in jail,
a ten-year driver’s license suspension, and a three-year
interlock on her ignition following the suspension period. The
court also assessed monetary fines and penalties.
The Law Division reviewed the case de novo pursuant to Rule
3:23-8 and, on July 19, 2011, the court found defendant guilty
of DWI based on both the physical evidence at the scene and the
Alcotest results, giving due deference to the municipal court
judge’s credibility determinations.
The Appellate Division affirmed defendant’s conviction.
The panel first considered the Alcotest results. The panel
noted certain inadequacies as to the foundational evidence the
10
State introduced in support of the Alcotest. Nonetheless, the
panel declined to address whether the evidential record fairly
supported the Law Division’s guilty finding under the per se
prong of the DWI statute, because it found that the
observational evidence against defendant sufficient to support
her conviction under the statute’s other prong.
Addressing defendant’s evidentiary challenges, it concluded
that the municipal court properly admitted the DDR and the DDQ
under the business records exception to the hearsay rule.
Although the panel found the transcript to be unclear as to
whether the municipal judge was marking the documents for
identification or admitting them into evidence before Officer
Serritella testified, it concluded that any harm presented by
the premature admission of the reports into evidence was soon
mitigated by Officer Serritella’s testimony about the contents
of the reports. The panel also found that because Officer
Serritella, who authored the reports, testified at trial and was
extensively cross-examined, the reports’ admission did not
violate defendant’s right to confrontation under the Sixth
Amendment. U.S. Const. amend. VI.
The panel ultimately held that, based on the location of
defendant’s vehicle, Officer Serritella’s observations at the
scene of the accident, and defendant’s performance on the field
11
sobriety tests there was sufficient credible evidence in the
record to support defendant’s DWI conviction.
Defendant filed a petition for certification, which this
Court granted limited to the admissibility of the documentary
evidence and the Alcotest results, and the sufficiency of the
observational evidence. State v. Kuropchak, 216 N.J. 360
(2013). The New Jersey Attorney General and the New Jersey
State Bar Association appeared as amici curiae.
II.
Defendant argues that the municipal court admitted the DDQ
and the DDR before the State laid a proper foundation for them,
thus presupposing that police officers and the reports they
write are inherently reliable. Defendant also argues that
narrative reports such as the DDQ and the DDR violate Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), because they are testimonial hearsay.
With respect to the observational evidence of defendant’s
guilt, defendant argues that the record does not support her
conviction. Defendant asserts that each fact that incriminates
her is also consistent with an innocent explanation. For
example, the fact that defendant’s car was found in the wrong
lane is explained by the fact that the other vehicle was driving
in the middle of the road and defendant swerved to the left to
avoid hitting parked cars. Defendant alleges that the other
12
purported indicia of defendant’s intoxication -- such as her
slowness in responding, pale complexion, slurred speech, and
bloodshot eyes -- are attributable to the severity of the motor
vehicle accident, airbag deployment, and an illness that caused
her to seek medical help shortly before the collision.
Furthermore, defendant maintains that she failed two of the
field sobriety tests because of prior foot surgeries which
continue to affect her balance.
Lastly, defendant argues that the municipal court should
have suppressed the Alcotest results. First, defendant asserts
that the State failed to lay a proper foundation for the results
as required by Chun. Defendant also notes that, contrary to
Chun, not all of the requisite documents were introduced during
the State’s case-in-chief.
The State contends that defendant’s trial did not raise any
Confrontation Clause issues because Crawford addresses the
admissibility of testimonial evidence when a witness does not
testify. Here, on the contrary, Officer Serritella drafted the
police reports and testified at trial. The State therefore
argues that because the reports only contained statements by
Officer Serritella and defendant, who both testified at trial,
the statements did not violate the Confrontation Clause.
The State also argues that the observational evidence in
this case is sufficient to sustain defendant’s conviction. It
13
emphasizes that Officer Serritella observed several separate
indicia of intoxication: defendant’s vehicle was in the wrong
lane; she was slow to respond and to produce her credentials;
she failed two of the field sobriety tests; she swayed as she
walked; her speech was slow and slurred; her demeanor was
sleepy; and her eyes were bloodshot and watery. Even though
defendant proffers various innocent explanations, the State
maintains that those observations should be considered in the
aggregate. The State also contends that the municipal court
judge found the State’s witnesses more credible than defendant.
The Attorney General, appearing as amicus curiae, urges
this Court to affirm defendant’s conviction. The Attorney
General argues that the municipal court did not err by admitting
the DDR and DDQ into evidence under the business records
exception to the hearsay rule, N.J.R.E. 803(c)(6), because the
police prepared these reports in the regular course of business,
shortly after the events described in the reports, and in a
manner that justifies their admission.
Additionally, the Attorney General asserts that the
municipal court correctly admitted into evidence the Calibrating
Unit New Standard Solution Report dated January 25, 2010, one of
the foundational documents for the Alcotest, because the court
had allowed the State to reopen its case. The Attorney General
admits, however, that the correct Certificate of Analysis for
14
the 0.10 simulator solution does not appear to have been entered
into evidence. Additionally, the Attorney General asserts that
even though defendant provided individual explanations for her
behavior when questioned by Officer Serritella, when viewed in
the aggregate, the numerous indicia of intoxication observed by
Officer Serritella were more than adequate to establish
defendant’s intoxication.
The New Jersey State Bar Association (NJSBA), also
appearing as amicus curiae, argues that narrative police reports
including the DDR and DDQ should not be considered business
records under N.J.R.E. 803(c)(6), absent a stipulation by the
parties, because those reports contain testimonial statements
and are “prepared for the primary purpose” of criminal
prosecution. The NJSBA also asks this Court to reaffirm that
strict compliance with Chun, supra, is required, and to hold
that the Alcotest results in this matter were not admissible due
to the State’s failure to offer proper core foundational
documents. The NJSBA contends that because the appellate panel
ultimately affirmed defendant’s conviction on the observational
prong, it did not determine whether the evidentiary record would
support a conviction on the per se prong.
III.
A conviction for DWI requires proof beyond a reasonable
doubt. State v. Kashi, 360 N.J. Super. 538, 544 (App. Div.
15
2003) (citation omitted), aff’d, 180 N.J. 45 (2004). If a
municipal court convicts a defendant of DWI, the defendant must
first appeal to the Law Division. R. 7:13-1; R. 3:23-1. The
Law Division reviews the municipal court’s decision de novo, but
defers to credibility findings of the municipal court. State v.
Johnson, 42 N.J. 146, 157 (1964).
“Appellate courts should defer to trial courts’ credibility
findings that are often influenced by matters such as
observations of the character and demeanor of witnesses and
common human experience that are not transmitted by the record.”
State v. Locurto, 157 N.J. 463, 474 (1999). Thus, appellate
review is limited to “whether the findings made could reasonably
have been reached on sufficient credible evidence present in the
record.” Johnson, supra, 42 N.J. at 162. “This involves
consideration of the proofs as a whole,” and not merely those
offered by the defendant. Ibid. “Any error or omission shall
be disregarded by the appellate court unless it is of such a
nature as to have been clearly capable of producing an unjust
result[.]” R. 2:10-2; see also State v. Macon, 57 N.J. 325, 338
(1971); Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824,
828, 17 L. Ed. 2d 705, 710 (1967) (“‘The question is whether
there is a reasonable possibility that the evidence complained
of might have contributed to the conviction.’” (quoting Fahy v.
Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed.
16
2d 171, 273 (1963))). Occasionally, however, a trial court’s
findings may be so clearly mistaken “that the interests of
justice demand intervention and correction.” Johnson, supra, 42
N.J. at 162. Moreover, legal conclusions are subject to de novo
review. State v. Gandhi, 201 N.J. 161, 176 (2010).
IV.
We first address whether a proper foundation was laid for
the admission of the Alcotest results. A court may convict a
defendant of DWI if she registers a blood alcohol level of 0.08%
or higher. N.J.S.A. 39:4-50(a); State v. Bealor, 187 N.J. 574,
588 (2006). This finding of per se guilt, however, is subject
to proof of the Alcotest’s reliability.
In Chun, this Court set forth mandatory guidelines for
establishing the Alcotest’s reliability. First, when the test
is administered, an Alcotest operator must observe a subject for
twenty minutes before commencing the test to ensure that the
subject does not put anything, such as alcohol, tobacco, or
chewing gum in his or her mouth during that time. 194 N.J. at
79. The operator should also remove all “cell phones and
portable devices” from the testing room. Id. at 80. After
twenty minutes, the Alcotest machine automatically conducts a
“blank air test” to determine “if there are chemical
interferents in the room.” Ibid. Additionally, a “control
test” is conducted; if the Alcotest is working properly, that
17
control test will generate a result between 0.095 and 0.105.
Ibid. A similar control test is completed as part of the
Alcotest’s semi-annual calibration. Id. at 144-45.
In Chun, supra, we directed that the Alcotest “be
programmed to fix the tolerance range to be plus or minus 0.005
percent BAC from the mean or plus or minus five percent of the
mean, whichever is greater,” to ensure reliable results. Id. at
116. If the first and second tests are not within acceptable
tolerance of each other, “the machine prompts the operator to
conduct a third breath test,” and so on. Id. at 81. We also
required the State to admit certain foundational documents to
prove that the Alcotest was in working order. Id. at 145. They
are:
(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.
[Ibid. (emphasis added).]
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
18
State was required to provide the Certificate of Analysis of the
0.10 Simulator Solution used in defendant’s control test. Ibid.
The State, however, mistakenly admitted the Certificate of
Analysis for the semi-annual simulator solution control lot
09D065 instead of the Certificate from defendant’s control test.
Additionally, contrary to Chun, the record shows that the
most recent Calibrating Unit New Standards Solution Report was
not admitted into evidence during the State’s case. During the
State’s case, the municipal court admitted into evidence the
Calibrating Unit New Standard Solution Report dated January 12,
2010. During cross-examination, defendant’s expert testified
that the State was required to enter into evidence the
Calibrating Unit New Standard Solution Report, completed on
January 25, 2010, as part of defendant’s Alcotest. Upon
recognition of this mistake, at the next trial session, the
prosecutor presented, for identification, the Calibrating Unit
New Standard Solution Report dated January 25, 2010. This
document was then admitted into evidence. This admission,
however, was inappropriate. The prosecutor moved to enter the
correct Calibrating Unit New Standard Solution Report at the
conclusion of limited rebuttal testimony from Officer Serritella
that was unrelated to the Alcotest. Moreover, the document was
admitted even though the State had not moved to reopen its case
at that point.
19
We conclude that the foundational documents required under
Chun were not admitted into evidence. Therefore, the State
presented no evidence as to the reliability or accuracy of the
Alcotest results. We thus hold that defendant’s conviction of
per se intoxication was improper.
V.
We now turn to defendant’s arguments that the admission of
the DDR and DDQ violated the New Jersey Rules of Evidence. This
Court uniformly has endorsed the proposition that “in reviewing
a trial court’s evidential ruling, an appellate court is limited
to examining the decision for abuse of discretion.” Hisenaj v.
Kuehner, 194 N.J. 6, 12 (2008). The general rule as to the
admission or exclusion of evidence is that “[c]onsiderable
latitude is afforded a trial court in determining whether to
admit evidence, and that determination will be reversed only if
it constitutes an abuse of discretion.” State v. Feaster, 156
N.J. 1, 82 (1998), cert. denied 532 U.S. 932 (2001); see also
State v. J.A.C., 210 N.J. 281, 295 (2012). Under that standard,
an appellate court should not substitute its own judgment for
that of the trial court, unless “the trial court’s ruling ‘was
so wide of the mark that a manifest denial of justice
resulted.’” State v. Marrero, 148 N.J. 469, 484 (1997) (quoting
State v. Kelly, 97 N.J. 178, 216 (1984)).
A.
20
Defendant first contends that the DDR and the DDQ were
admitted into evidence in violation of the Confrontation Clause
and Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L.
Ed. 2d at 203. Additionally, the NJSBA contends that the DDR
and DDQ are testimonial.
A person charged with a criminal offense has the right to
confront his accusers. U.S. Const. amend. VI. This right is
founded on the belief that subjecting testimony to
cross-examination enhances the truth-discerning process and the
reliability of the information. California v. Green, 399 U.S.
149, 159, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970);
State ex rel. J.A., 195 N.J. 324, 342 (2008).
The Confrontation Clause of the United States Constitution
bars the “admission of testimonial statements of a witness who
did not appear at trial unless the witness was unavailable to
testify, and the defendant had a prior opportunity for
cross-examination.” Crawford, supra, 541 U.S. at 53-54, 124 S.
Ct. at 1365, 158 L. Ed. 2d at 194. Additionally, hearsay that
is testimonial in nature is inadmissible, even if it satisfies a
recognized exception to the hearsay rule, when the declarant
does not testify. See Davis v. Washington, 547 U.S. 813, 822,
126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006); State
v. Michaels, 219 N.J. 1, 31 (2014) (noting that New Jersey
applies Crawford’s primary-purpose test when assessing
21
testimonial nature of statement), cert. denied, U.S. ,
135 S. Ct. 761, 190 L. Ed. 2d 635 (2014).
Testimony “is typically [a] solemn declaration or
affirmation made for the purpose of establishing or proving some
fact.” State v. Sweet, 195 N.J. 357, 373 (2008) (quoting
Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed.
2d at 192), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L.
Ed. 2d 601 (2009). Additionally, “[s]tatements taken by police
officers in the course of interrogations” are also testimonial.
Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d
at 237 (citing Crawford, supra, 541 U.S. at 52, 124 S. Ct. at
1354, 158 L. Ed. 2d at 177).
In a criminal context, formal statements to government
officers constitute testimony in a sense that a person’s casual
remark to an acquaintance does not. Sweet, supra, 195 N.J. at
373 (citing Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364,
158 L. Ed. 2d at 192); see also Michaels, supra, 219 N.J. at 31-
32 n.9 (noting Sweet’s distinction between foundational and
testimonial documents). Thus, the Confrontation Clause
generally forbids admitting testimony of a witness who directly
or indirectly provides information derived from a non-testifying
witness, which incriminates a defendant at trial. Branch,
supra, 182 N.J. at 350.
22
Officer Serritella’s documentation of the incident must be
considered the recordation of testimonial statements.
Serritella’s observations were made for the purpose of
establishing or proving that defendant was driving while
intoxicated. However, the officer testified at trial and was
extensively cross-examined by defense counsel. Thus, the
Confrontation Clause was not violated by the admission of the
DDR and DDQ.
B.
We now turn to defendant’s contention that the DDR and DDQ
are inadmissible hearsay and do not fall within any of the
hearsay exceptions.
Hearsay is defined as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.”
N.J.R.E. 801(c). Hearsay is inadmissible unless it falls into
one of the recognized exceptions. N.J.R.E. 802. To qualify as
a business record under N.J.R.E. 803(c)(6), a writing must meet
three conditions: it must be made in the regular course of
business, within a short time of the events described in it, and
under circumstances that indicate its trustworthiness. State v.
Matulewicz, 101 N.J. 27, 29 (1985) (citation omitted). The
criteria to apply the business records exception have remained
constant. Id. at 29; Sweet, supra, 195 N.J. at 370-71 (2008).
23
The rationale behind this exception is “‘that records which
are properly shown to have been kept as required normally
possess a circumstantial probability of trustworthiness, and
therefore ought to be received in evidence.’” Matulewicz,
supra, 101 N.J. at 29-30 (quoting Mahoney v. Minsky, 39 N.J.
208, 218 (1963)); see also Fagan v. City of Newark, 78 N.J.
Super. 294, 309 (App. Div. 1963) (finding exception to be
“founded upon the twin principles of reliability and necessity.”
(internal citations omitted)).
We recognize that foundational reports for breath testing,
with certain qualifications, are admissible under the business
record exception to the hearsay rule. Sweet, supra, 195 N.J. at
370-71; Chun, supra, 194 N.J. at 142. However, we have also
recognized that police officers who draft reports have an
interest in prosecuting defendants. See, e.g., State v.
Simbara, 175 N.J. 37, 49 (2002) (“recognizing a laboratory
certificate in a drug case is not of the same ilk as other
business records, such as an ordinary account ledger . . . .
[T]he analyst prepares the laboratory certificate . . . for the
sole purpose of investigating an accused.”).
On the first page, the DDR records the officer’s
observations by means of a checklist of indicia of intoxication.
Officer Serritella checked off the items he observed. The
second page of the DDR contains a narrative account of the
24
events Officer Serritella witnessed at the scene of the
accident. The page includes factual statements, observations,
and the officer’s opinions. For example, Officer Serritella
noted that upon being questioned about her well-being, defendant
“stared back at him.” Additionally, Officer Serritella wrote
that she “paused for a few moments” and “appeared to be very
slow in her actions and responses when questioned.” Officer
Serritella also noted that defendant became very defensive when
questioned. Thus, the DDR contains inadmissible hearsay.
Although the DDQ also does not appear initially to
constitute hearsay, it incorporates by reference the DWI report
in the “remarks” section -- “see DWI report for incident
details” -- and the DWI report, in turn, contains several
inadmissible opinions. The DDQ’s content thus also rises to the
level of inadmissible hearsay and requires exclusion.
Therefore, we hold that the DDR and the DDQ are inadmissible
hearsay outside the scope of the business records exception.
See N.J.R.E. 803(c)(6).
VI.
An appellate court should engage in a “searching and
critical” review of the record when it is faced with a trial
court’s admission of police-obtained statements to ensure
protection of a defendant’s constitutional rights. See State v.
Pickles, 46 N.J. 542, 577 (1966).
25
Here, the municipal court heard defendant’s testimony
concerning the events on the day of the incident, as well as the
testimony of Officer Serritella. The court found the Officer’s
testimony more credible than defendant’s and therefore found
defendant guilty.
The court’s credibility determinations, however, were made
after the DDR and the DDQ were admitted into evidence
notwithstanding the impermissible hearsay statements they
contained, and after the Alcotest results were admitted into
evidence despite the lack of requisite foundational documents.
The cumulative effect of the inclusion of the DDR, the DDQ, and
the Alcotest results may have tilted the municipal court’s
credibility findings. Thus, we lack sufficient confidence in
the proceedings to sanction the result reached and conclude that
the interests of justice require a new trial. It is only
because of the unique confluence of events in this case –- the
inappropriate admission of the Alcotest results as well as the
DDR and DDQ -- that we remand for a new trial. Had the only
flaw been the admission of the DDR and DDQ, which contained
hearsay, Officer Serritella’s testimony would have alleviated
much of that problem. Here, however, the cumulative effect of
the errors may have tilted the municipal court’s credibility
findings.
VII.
26
Therefore, we reverse the judgment of the Appellate
Division and remand for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion.
27
SUPREME COURT OF NEW JERSEY
NO. A-41 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE KUROPCHAK,
Defendant-Appellant.
DECIDED April 28, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7