The next case to address confrontation clause issues is the Passaic County case of State v. Kent (App. Div. 2007). Judge Sabatino wrote for the three-judge appellate panel in relevant part: This drunk driving case presents another instance concerning the admissibility of hearsay documents under the Confrontation Clause of the Federal and State Constitutions, in light of Crawford and its progeny. Specifically, we are again asked to consider whether Crawford requires the exclusion of a laboratory report prepared by a State Police chemist and a blood test certificate prepared pursuant to N.J.S.A. 2A:62A-11 by a hospital employee who had extracted blood from the defendant driver at the request of a police officer.
For the reasons we explain in this opinion, we reaffirm our holdings in Berezansky (App. Div. 2006) (ruling that a State Police chemist’s lab report is “testimonial” under Crawford and thus must be excluded unless defendant has an opportunity to cross-examine the chemist), and in Renshaw (App. Div. 2007) (holding that a blood test certificate issued pursuant to N.J.S.A. 2A:62A-11 is likewise “testimonial” under Crawford), particularly in light of the United States Supreme Court’s most recent explication of the Crawford testimonial standard in Davis v. Washington (2006). However, we also highlight the practical implications of these constitutional holdings. In doing so, we suggest that legislative or administrative rule-making efforts might be undertaken to assure that the constitutional principles are administered fairly, without placing undue burdens on third-party witnesses and law enforcement personnel who may create documents relevant to drunk driving prosecutions.
Because defendant was deprived of his constitutional rights of confrontation, we hold that the chemist’s report and the hospital worker’s blood test certificate were improperly admitted as part of the State’s evidence at trial. Nevertheless, we sustain his DWI conviction on independent grounds, based upon the arresting police officer’s numerous field observations of intoxication that were not contradicted by competing proofs at the municipal trial and were ratified by the Law Division.
The mandatory minimum penalties are the same for observation cases as they are for cases with admissible blood alcohol content readings unless it is a first-offense DWI case. In first offense cases, the penalties are more severe if the admissible reading is .10 or above.
