Confrontation Clause Cases (Part 36)

by | Jul 4, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Appellate Division continued in relevant part: We recognize that hospital nurses, phlebotomists and other medical personnel are not police officers. Nonetheless, their close interaction with law enforcement officers, in extracting blood from DWI suspects and in certifying as to “the manner and circumstances under which the sample was taken,” readily places them within the ambit of the “testimonial” boundaries of Crawford.

We reached a similar conclusion in Buda in holding that a DYFS worker’s private interview with a battered young child in a hospital room, after the worker first spoke with an investigator from the prosecutor’s office and with a physician who had suspected wrongdoing by the defendant, should be treated under Crawford and Davis as a “testimonial” context. Because the child did not testify at trial and defendant had no chance for cross-examination, his hearsay statement to the DYFS worker was held constitutionally inadmissible.

Defendant’s legitimate need for confrontation of the hospital worker is especially salient in this case, given the asserted discrepancies between the blood sample certificate and the testimony of Officer Knepper. The officer’s sworn recollection that Gallant applied “some type of alcohol wipe” to defendant’s arm before inserting the needle raises a bona fide concern that defendant’s blood sample may have been tainted with alcohol from an external source. The blood certificate says otherwise, indicating that the extract on site was instead prepared with Betadine, “supplied by the officer in his kit.” It may well be that Officer Knepper was mistaken in his recollection, but that is the sort of issue that warrants explanation through the live testimony of the hospital employee. Similarly, the officer was unsure if Gallant shook the preservative in the vial, a potential omission which may have affected the sample as well. Again, Gallant himself could vouch for that on the witness stand. In sum, the reasons why defendant wishes to cross-examine Gallant in this case are not fanciful or vexatious.

It will be interesting to see if at some point the State comes up with a protocol by which an officer can have such intimate first-hand knowledge of the taking of a blood sample that they can testify to it without the need for the nurse or phlebotomist. To do so, the officer would probably have to be trained as a certified nurse or phlebotomist.