Confrontation Clause Cases (Part 20)

by | Jun 2, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Court continued in relevant part: The State’s argument that N.J.S.A. 2A:62A-11 should not be construed to require the State to produce the nurse who drew the blood because of the pragmatic considerations involved in securing such appearance at a trial a considerable distance away cannot be squared with the constitutional mandate of either Crawford or Berezansky and must therefore be rejected. Unquestionably, those decisions compel the conclusion that practical considerations must yield to constitutional imperatives when the two collide.

We likewise reject the State’s contention that defendant’s cross-examination of Muller was a sufficient alternative to cross-examination of Deal because, as the State itself concedes, there were several gaps in what Muller had observed. Nor are we persuaded by the State’s characterization of Deal as a “minimally involved witness in the chain of custody.” Lage’s expert testimony about the impact of contamination of blood on the reliability of the BAC reading persuades us otherwise.

Lage testified that an error by Deal in using an ethanol, rather than a betadine swab, or in the drawing of blood from an artery rather than a vein, or in the failure to have shaken the vials prior to testing could have falsely and unfairly inflated the BAC reading. In light of that testimony, the State’s characterization severely understates her potentially pivotal role in maintaining the purity of the sample and ultimately guaranteeing the reliability of the BAC result itself. Thus, the State’s effort to equate the role of a nurse who draws the blood to a minimally involved witness in the chain of custody must fail. For example, a desk clerk at a laboratory, who assigns an identifying number to a specimen and puts it in a secure area pending forensic analysis, is a “minimally involved witness in the chain of custody.” Comparing such a task to that of a person who procures the specimen and protects it from contaminating influences is, in our view, erroneous.

In future cases, the State may try to distinguish this decision by claiming that there were no gaps in a witness’s observations. However, the nature of drawing blood from an artery as opposed to a vein, for example, creates a problem. It does not appear to be something that anyone other than the nurse could testify to with firsthand knowledge.