The Court continued in relevant part: Here, we have no difficulty in finding the certification to be testimonial. If a statement of a child about his injuries is deemed testimonial when the immediate emergency has passed, then certainly a certification prepared for purposes of trial, and indeed only for purposes of trial, can be nothing other than testimonial.
We are mindful of the decisions of other courts that have had occasion to address the issue of whether certain records would be considered testimonial for purposes of analysis under Crawford and its progeny. In U.S. v. Ellis, the Seventh Circuit addressed the admissibility of medical records establishing the presence of a controlled dangerous substance in the defendant’s blood and urine. There, the Court held that because the statements of medical personnel “were made in the ordinary course of business, they are statements that by their nature were not testimonial” and their admission, therefore, does not violate the Sixth Amendment.
In the instant case, the preparation of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner could not qualify for admission under the business record exception to the hearsay rule, N.J.R.E. 803(c)(6), because it was not prepared in the ordinary course of business. Instead, the certification was prepared solely to be used “in any proceeding as evidence of the statements contained” within such record. N.J.S.A. 2A:62A-11. As we observed in Berezansky, the business records exception will not apply if the document was prepared specifically for the purposes of litigation.
Having found that the certification is testimonial in nature, and in light of our conclusions about what Berezansky and Simbara require, we see no principled basis to afford a defendant challenging the admissibility of a certification concerning the procedures used to draw his blood any fewer rights than a defendant challenging a technician’s report on blood alcohol content or a report on the presence of a controlled dangerous substance. N.J.S.A. 2A:62A-11, the statute at issue here, is thus free of any constitutional difficulties only in those circumstances when a defendant consents to the admission of the nurse’s certificate and agrees to waive the opportunity for cross-examination; however, when an objection is raised, the existence of the statute is not a justification for the State’s failure to produce the witness.
The Seventh Circuit Ellis case cited by the Court is not binding on New Jersey Courts. It would be binding if it were later decided by the United States Supreme Court.
