The Court continued in relevant part: The results reported on Exhibit S-5 showed that defendant’s blood alcohol content was 0.103%, a concentration above the legal limit. These findings were essentially consistent with the corresponding worksheets admitted into evidence.
Exhibits S-5 and S-6 were received into evidence in lieu of any testimony from Messana or from the other State Police laboratory personnel with initials TD, MB, and JC. Again, the record does not reflect that these persons were unavailable to testify, or that they were ever subpoenaed by the defendant.
The municipal judge admitted S-2, S-5, S-6 and other documents, over the defense’s objection, as business records under N.J.R.E. 803(c)(6). At the close of the State’s case, defendant moved to dismiss the prosecution, principally because he had been deprived an opportunity to cross-examine at trial the declarants whose assertions were contained in those hearsay documents. The municipal judge denied that motion.
Defendant did not present any live witnesses on his behalf at trial. However, defendant did proffer a report from an expert witness, Gary Lage, Ph.D., a toxicologist. Dr. Lage’s report identified what he perceived to be several problems with the analyses of defendant’s blood. Among other things, Dr. Lage criticized the incomplete nature of the State’s chain of custody documents and their failure to disclose the precision level of the “diluter/pipetter” used in the testing. Noting that defendant weighed approximately 255 pounds and that his blood was not drawn until nearly three hours after the accident at 4:05 a.m., Dr. Lage suggested that at the time of his accident defendant’s bloodstream had not fully absorbed the alcohol he had consumed.
Considering those factors, as well as various margins of error associated with the pipetter and ethanol involved in the blood testing, Dr. Lage opined that defendant’s blood alcohol concentration (BAC) could have been less than the 0.103% reported by the State Police laboratory and, in fact, could have been under 0.10%. Dr. Lage did not, however, offer an opinion that defendant’s BAC could have been below 0.08%.
This summary of Dr. Lage’s report provides further fodder for cross-examination in cases like this. It also provides examples of why live testimony should be required in cases like this under the Confrontation Clause.
