The Appellate panel continued in relevant part: Accordingly, in light of Crawford, Berezansky, and Buda, the decision by the court below dispensing with the opportunity for cross-examination of the nurse who drew defendant’s blood cannot be countenanced. We therefore hold that the admission in evidence of the Uniform Certification for Bodily Specimens Taken in a Medically Acceptable Manner, without the opportunity for cross-examination, over the objection of defendant, runs afoul of the right of confrontation protected both by the United States and the New Jersey Constitutions.
We now address defendant’s remaining arguments. As to Point I, the Law Division judge rejected defendant’s claim that the seizure of defendant’s blood without a warrant was unsupported by probable cause. The judge found that the evidence supported a conclusion that defendant was the driver of the vehicle and that he drove while intoxicated. The judge therefore rejected the claim that the seizure of defendant’s blood violated defendant’s right to be free from unlawful search and seizure under the Fourth Amendment to the United States Constitution. Unquestionably, the fresh tire tracks leading from the roadway to defendant’s car, the smell of alcohol on defendant’s breath, defendant’s statement that no one else was then in the car, his disorientation, and the crash itself, provided ample evidentiary support for the judge’s conclusions.
The judge found no evidence of a phantom driver operating defendant’s vehicle who miraculously escaped injury and ran out of the vehicle before Muller arrived on the scene. We agree with that finding. Further, we concur in his conclusion that sufficient probable cause existed to conclude that defendant was driving while intoxicated, thereby justifying the drawing of defendant’s blood. See Ravotto (2001) (finding that probable cause was satisfied by proof of a strong odor of alcohol on the breath of a driver whose car had careened off the road and hit a tree).
The reference to a “phantom driver” and “miraculous escape” further indicate that the municipal court judge was frustrated with the zealous advocacy on behalf of the defendant. The Law Division (Superior Court) is subject to a non-deferential, “de novo” review of the municipal court’s sentence. Therefore, there was little concern with the decision to vacate the 30-day jail sentence being overturned.
