Confrontation Clause Cases (Part 15)

by | May 23, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Court continued in relevant part: The defense called Gary L. Lage as an expert in toxicology and pharmacology with specific stipulated expertise in blood testing. He explained that any number of possible errors in the blood extraction procedures could have improperly increased defendant’s BAC. He pointed to the possibility that Deal had used an ethanol swab rather than a betadine swab, thereby creating a false positive reading for the presence of alcohol in defendant’s blood; had drawn blood from an artery rather than a vein; and had failed to properly shake the vials prior to testing, interfering with the even distribution of the preservative throughout the blood, thereby permitting microorganisms as well as yeast to falsely convert glucose to alcohol. Lage further testified that blood loss, as well as the administering of intravenous fluids, could also have improperly inflated the BAC. In sum, Lage concluded that “you can’t state with any degree of certainty that the blood alcohol results are valid.” The defense then rested.

We begin by addressing defendant’s argument, raised below, that admission of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, without the testimony of its preparer, violated his constitutional right of confrontation because he was denied the opportunity to cross-examine the nurse who drew his blood and prepared the certification. Defendant argues that without the opportunity to cross-examine Deal, he was deprived of his ability to explore critical areas of potential contamination of the extracted blood samples. Although defendant concedes that Deal drew the blood in the presence of Officer Muller, he argues, correctly, that Muller could not say if the nurse had extracted the blood in a medically accepted manner, abided by the hospital policies for its extraction, took venous or arterial blood, or used an ethanol-based swab on the extraction site. Defendant points to the testimony of Lage, who explained that contamination of the extracted blood would have caused a false blood alcohol concentration reading.

The summary of Lage’s testimony leads one to conclude that blood testing for alcohol rarely produces valid results. That is not consistent with the numerous criminal case decisions addressing blood testing.