The Appellate Division continued in relevant part: The Supreme Court in Miller did interpret N.J.S.A. 2C:35-19(c) in a manner which excised the statute’s additional proviso that the party objecting to the admission of the lab certificate identify his or her “specific grounds for that objection.” The Court held that “a defendant cannot, as a matter of constitutional imperative, be assigned any burden to detail an objection to the admission of a CDS lab certificate.” The Court noted that it is the State’s burden to prove guilt beyond a reasonable doubt, and a defendant should not be required “to vault a legal hurdle” to exercise his right to confrontation of the State’s witnesses. To save the statute from constitutional infirmity, the Court therefore eliminated its requirement for defendants to articulate their “specific grounds” of objection. The Supreme Court held that “because it is always the State and not defendant that bears the burden of justification of the admission of the contents of certified reports, imposition of a barrier, beyond notice, to defendant’s exercise of his right to confrontation cannot be countenanced.”
Thus, we similarly adhere to the precepts of Miller by holding that, at a minimum, a DWI defendant must give the prosecution appropriate notice of his or her invocation of the constitutional right of confrontation, and must timely demand the appearance of persons who prepare laboratory reports and blood certificates sought to be admitted by the State. Absent such notice and demand, the constitutional right should be deemed waived. In this regard, we note that several jurisdictions, in cases decided after Crawford or Davis, continue to recognize the validity of notice-demand statutes for various business records commonly used in prosecutions.
To implement our holding, we recommend that the Legislature, or appropriate rule-making bodies of the judiciary such as the Supreme Court’s Committees on Criminal Practice and Municipal Practice, examine these issues. We suggest they consider the adoption of statutes or court rules patterned after N.J.S.A. 2C:35-19 that would create similar notice-demand requirements for State Police lab reports used in DWI trials and for blood sample certificates generated under N.J.S.A. 2A:62A-11. We do not suggest any time lines or procedures for such notice-demand provisions, but instead defer to the prospective development of appropriate measures through such rule-making or legislation.
Requiring specific grounds for a laboratory certificate objection is not practical. Oftentimes, the avenues for cross-examination are not known until direct examination and/or the early stages of a cross-examination. Not requiring live testimony also encourages false certifications because the certifying witness is aware that their deception will never be revealed through cross-examination.
