The Appellate Division continued in relevant part: In the municipal court, and again in the Law Division during the trial de novo, defendant argued that Crawford precludes the State from relying on the contents of the certificate in the absence of testimony from its preparer. In Crawford, the United States Supreme Court determined that when “testimonial evidence” is at issue, dispensing with confrontation solely because testimony is deemed reliable is violative of the Sixth Amendment to the United States Constitution. Before us, defendant again pressed his argument regarding Crawford. He also pointed to our recent decision in Berezansky as further support for his constitutional claims. In Berezansky, we held that neither the business record exception nor the government record exception to the hearsay rule set forth in N.J.R.E. 803(c)(6) and 803(c)(8), respectively, authorize the admission of the report on blood alcohol content in a DWI prosecution in the absence of the testimony of the technician who prepared that report. We further held that the lack of an opportunity by a defendant to cross-examine the technician violated defendant’s rights under both the Sixth Amendment and article 1, paragraph 10 of the New Jersey Constitution.
In reply to defendant’s arguments about Berezansky, the State makes several points. The State argues first that, here, unlike in Berezansky, the admission of the certification in the absence of its preparer is specifically authorized by the statute. N.J.S.A. 2A:62A-11 provides: Any person taking a specimen pursuant to section 1 of N.J.S.A. 2A:62A-10 shall, upon request, furnish to any law enforcement agency a certificate stating that the specimen was taken pursuant to section 1 of this act and in a medically acceptable manner. The certificate shall be signed under oath before a notary public or other person empowered to take oaths and shall be admissible in any proceeding as evidence of the statements contained therein.
The ”shall be admissible” language creates a separation of powers issue. While our Legislature is empowered to make laws, our Courts (the Judiciary) are empowered to determine the admissibility of evidence.
