The three-judge panel continued in relevant part: Next, the State argues that defendant’s argument should be rejected because it “ignores the pragmatic approach historically adopted by New Jersey courts on issues of this type.” The State points to the statute as a likely response to the “difficulties experienced by municipal prosecutors in securing the appearance of nursing personnel at DWI trials and the concomitant strain these court appearances placed upon the affected medical professions.” The State’s third argument is that defendant did have available to him avenues for impeachment as he was afforded the opportunity to cross-examine Muller on the observations he made of the blood draw by Deal. Fourth, the State argues that Berezansky should be distinguished because the omission of the testimony of a chemist who certifies that the BAC exceeds the legal limit “cannot be compared to the omission of the testimony of a minimally involved witness nurse Deal in the chain of custody.” We disagree.
That the challenged practice is authorized by N.J.S.A. 2A:62A-11 does not establish that the practice itself is lawful in all circumstances. That argument fails in light of our reasoning in Berezansky. In Berezansky, we relied not only on Crawford, but also on the New Jersey Supreme Court’s decision in Simbara. Simbara concerned a challenge to the admissibility of a certificate reporting the result of testing for a controlled dangerous substance. The Court in Simbara addressed the statute that authorized the admission of that certificate, which was N.J.S.A. 2C:35-19. The Court held that the certificate could not be admitted into evidence in the absence of the technician who prepared it once the defendant has asserted his right to require the technician’s testimony and availability for cross-examination. There, the Court rejected the State’s argument that the certificate was reliable because the laboratory complied with N.J.S.A. 2C:35-19. The Court held that the defendant’s right of confrontation was violated by the admission of the laboratory certificate, which clearly was hearsay, regardless of whether its preparer had complied with the statute or not.
The Court references the requirement that a defendant assert his right to require the technician’s testimony. It is difficult to imagine a municipal court DWI scenario that would not involve the ineffective assistance of counsel wherein defense counsel did not object to the lab certificate’s admission. It might make strategic sense to avoid the testimony of the state’s chemist during a jury trial. However, there are no jury trials in municipal court.
