New Jersey DWI Case – ALCOTEST Results, Physical Condition and Officer Testimony: Honesty and Officer Credibility

State v. Kuropchack: On March 18, 2013 the New Jersey Appellate Division issued its opinion in this case. Defendant Julie Kuropchak was convicted in the Garfield Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Following a trial de novo in the Law Division, she was again found guilty. As a third time offender, defendant was sentenced to 180 days in Bergen County Jail, a ten year driver’s license suspension, a three year interlock on her ignition following the ten year suspension, and to pay monetary fines and penalties.  There are two significant issues in this case which warrant some review.  Initially, the court threw out the ALCOTEST results due to the state’s failure to comply with the CHUN requirements.  However, this court then affirmed the trial court’s decision that the state met its burden of proof, i.e. beyond a reasonable doubt, that the officer’s testimony was enough to prove intoxication and driving under the influence!  The defense argued that the evidence outlined below was not enough, yet the court clearly disagreed.  It is my opinion that the evidence outlined below is hardly enough to convict, yet the appellate division and the law division courts were required to give deference to the trial court’s decisions of credibility, reliability, and honest of the witness testimony.  The Appellate Division stated, “The Law Division correctly deferred to the municipal judge’s credibility findings, and we are mandated to defer to those findings as well. Locurto, supra, 157 N.J. at 472. Because the findings of the Law Division could reasonably have been reached on sufficient credible evidence present in the record, we affirm defendant’s conviction based upon her physical condition. Howard, supra, 383 N.J. Super. at 548.  The importance of these comments can not be lost!!!  This is where the power of the municipal court judge comes into play.  When you lie to the police and say you have 1, 2, or 3 drinks during the post arrest interview, yet  the ALCOTEST results reveal a blood alcohol level well above a .08, the court is allowed to determine that you as the defendant have no credibility and have lied to the police.  Once the court commences that process, any defendant will be at a disadvantage relative to the police officer who appears before that judge on a regular basis.

The next substantial issue deals with the court admitting into evidence prior to the officer authenticating same, parts of the post arrest interview forms which were completed at the police department prior to the administering of the ALCOTEST machine. The interview forms contains the officer’s notes and answers to questions regarding pre-arrest behavior provided by the defendant.  In this case the forms were admitted and then the officer testified regarding their content.  The defendant objected to same arguing a violation of her confrontation clause entitlements under the US. Constitution.  The court dismissed this argument because the defendant was allowed, and able to cross-examine the officer at length regarding the forms, their content, and may other issues, after the court admitted the forms.  Again, the defendant did not want the content of the forms to be considered by the court because there was discrepancies in the answers relative to the officer’s observations and the officer’s testimony which the court ultimately relied upon at the time Judgment of Guilty was delivered by the trial judge.

The following are the facts of the case:  On January 25, 2010, at approximately 8:45 p.m., Garfield Police Officer Dennis Serritella arrived at the scene of a two car accident involving defendant on Chestnut Street in Garfield, New Jersey. Upon arrival at the scene, he observed that the “two cars were head-on with each other” and had significant damage. Additionally, defendant’s car appeared to be in the wrong lane.¹

According to Officer Serritella, he approached defendant’s car and observed that she was in the driver’s seat. He asked her if she was injured and “she stated her chest hurt, but she didn’t need an ambulance.” Next, Officer Serritella asked defendant if she had been drinking, to which she replied that she had not and elaborated that she was coming from the doctor’s office. Defendant then asked Officer Serritella “why she was being treated like a criminal because she got into an accident that wasn’t her fault.” Officer Serritella asked defendant for her credentials, she stared at him blankly for a few moments, and then was slow to retrieve them.

Based on his suspicion that defendant was intoxicated, Officer Serritella had defendant perform three field sobriety tests —— the finger to nose test, the one legged balance test, and the walk and turn test. Defendant exited her vehicle to perform the tests without any difficulty. According to Officer Serritella, defendant passed the finger to nose test, but failed the other two tests. During the one legged balance test, defendant was unable to hold her leg up for thirty seconds and dropped her leg “many” times. Defendant informed Officer Serritella that she had difficulty balancing due to surgeries she had on her foot when she was thirteen years old. During the walk and turn test, defendant failed to walk in a “heel to toe manner” as instructed, constantly picked her head up, and also paused between steps.

Officer Serritella further observed that defendant was “swaying and her knees were sagging” as she walked, her complexion was pale, her speech was slow and slurred, her demeanor was sleepy, and her eyes were bloodshot and watery. Officer Serritella then placed defendant under arrest for DWI and transported her in his patrol car to police headquarters.

At headquarters, Officer Serritella read defendant her Miranda2 rights and the Department of Motor Vehicles’ Standard Statement for Operations of a Motor Vehicle. When asked whether she would submit to a breath test, defendant responded that she would. Officer Serritella also asked defendant questions from the Drinking Driving Questionnaire. When asked if she was sick, defendant responded that she had a urinary tract infection for which she was under the care of a doctor. When asked if she was taking any medication, defendant responded that she was taking an appetite suppressant.

Officer Serritella then proceeded to administer the Alcotest to defendant. The first seven tests produced either no results or results outside acceptable limits. For at least some of these tests, it appears defendant failed to produce the minimum required volume of air. The eighth and ninth tests administered finally produced test results within the acceptable tolerance. Both results produced a 0.10% BAC reading.

Defendant testified on her own behalf at trial. According to defendant, between approximately 2:00 and 3:00 p.m. on the day of the accident, she went with friends to a restaurant in Hasbrouck Heights. Defendant claimed that one friend ordered a margarita, from which defendant had a “sip.” Defendant denied drinking any other alcoholic beverage that day.

According to defendant, after leaving the restaurant, she drove alone to her doctor’s office at 8:30 p.m. due to pain from a urinary tract infection. She was at the doctor’s office for approximately ten minutes. Her doctor called in a prescription for her to a pharmacy adjacent to the office. At 8:48 p.m., defendant picked up her prescription.

Defendant testified that she began to drive home immediately after leaving the pharmacy. While driving on Chestnut Street, a two lane street with one lane in each direction, she said she observed a vehicle with its lights off driving towards her while straddling the middle line. Defendant said this caused her to swerve left and hit her brakes in an attempt to avoid the other car, but the two cars ended up colliding. She claimed that she chose not to swerve right because she did not want to hit parked cars on the right side of the road.

According to defendant, the collision caused her car’s airbags to deploy. She claimed she exited her car due to the presence of smoke. Additionally, she said she was bleeding from her neck and had blood in her mouth. Defendant explained that she was slow to produce her credentials because “everything was all over the place” following the impact. Additionally, she claimed she had difficulty answering questions due to breathing problems caused by smoke inhalation.

Regarding the field sobriety tests, defendant testified that she followed the officer’s directions on the walk and turn test. Additionally, she claimed she could not perform the one legged balance test for thirty seconds due to “a botched surgery on [her] feet when [she] was [thirteen] years-old.” According to defendant, it is “literally impossible” for her to balance on one foot for thirty seconds.

The defense also presented the testimony of defendant’s father. He testified that defendant called him from police headquarters and denied that she had consumed alcohol. Additionally, he claimed that defendant did not appear intoxicated when he picked her up from police headquarters.

Finally, Gary Aramini, a DWI expert, testified for the defense. First, Armani testified that the State failed to properly lay a scientific foundation for the admissibility of the Alcotest results pursuant to State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S.Ct. 158 (2008). Specifically, Aramini claimed “no simulator solution assay Certificate of Analysis was given for solution control lot 08J[060], . . . which is required for scientific purposes.”

Second, Aramini testified the Alcotest results should not have been admitted because the State failed to introduce “the most recent [C]alibrating [U]nit [N]ew [S]tandard [S]olution [R]eport prior to . . . defendant’s test” into evidence.

Based on the evidence presented, the Law Division judge found sufficient evidence that defendant was guilty de novo of DWI based on the observational evidence, giving due deference to the municipal court’s credibility determinations.

The Law Division judge additionally found defendant guilty de novo under the per se prong of the DWI statute. Without elaboration, the judge found that the evidence supported the State’s contention that it presented the three foundational documents necessary for admitting the Alcotest results. See id. at 154.

Finally, the Law Division judge determined that it was not improper for the municipal court to enter the police reports into evidence as business records and the municipal judge’s questioning of the witnesses was not improper.

II.

Municipal DWI convictions are first appealed to the Law Division. R. 7:13-1; R. 3:23-1; State v. Golin, 363 N.J.Super. 474, 481 (App. Div. 2003). The standard of review of such appeal is de novo, Rule 3:23-8, and the Law Division decides the case anew, deferring only to the credibility findings of the municipal court.State v. Locurto, 157 N.J. 463, 472-74 (1999). On appeal to this court, we review whether there is sufficient credible evidence in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). On issues of law, our review is de novo. State v. Brown, 118 N.J. 595, 604 (1990). However, like the Law Division, we defer to the credibility determinations of the municipal court. State v. Cerefice, 335 N.J.Super. 374, 383 (App. Div. 2000).

“[A] violation of [the DWI statute] may be proven `through either of two alternative evidential methods: proof of a defendant’s physical condition or proof of a defendant’s blood alcohol level.'” State v. Howard, 383 N.J.Super. 538, 548 (App. Div.) (quoting State v. Kashi, 360 N.J.Super. 538, 545 (App. Div. 2003), aff’d, o.b., 180 N.J. 45 (2004)), certif. denied, 187 N.J. 80 (2006). In this matter, the Law Division judge found the State had proven defendant’s guilt on both grounds beyond a reasonable doubt.

A.

We first consider the validity of defendant’s conviction based on the Alcotest results. Defendant contends that the Alcotest results should not have been admitted because the State failed to meet the foundational requirements articulated in Chun, supra, 194 N.J. 54.

The State is required to enter three core foundational documents into evidence at trial to admit the Alcotest results: “(1) the most recent Calibration Report prior to a defendant’s test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent New Standard Solution Report prior to a defendant’s test; and (3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant’s control tests.” Id. at 154.

Here, there was a control test performed prior to each round of defendant’s breath tests on January 25, 2010. These control tests all used “Solution Control Lot: 08J060[.]” The record shows that the State did not admit into evidence the Certificate of Analysis for 0.10 simulator solution control Lot 08J060 as part of the State’s case. Additionally, the most recent Calibrating Unit New Standard Solution Report was not admitted into evidence during the State’s case.

We first address the issue regarding the Certificate of Analysis. According to the trial record, the State submitted a

Certificate of Analysis into evidence on July 28, 2010. However, the municipal judge did not identify on the record the simulator solution lot number on the certificate, merely stating “I already marked that. This is S-12. It is a Certificate of Analysis of the breath alcohol simulator solution.” Defendant’s expert testified that “no simulator solution assay Certificate of Analysis was given for solution control lot 08J[060] . . ., which is required for scientific purposes.”

The State does not argue that it entered into evidence the Certificate of Analysis for solution control lot 08J060. It readily admits that it only entered into evidence the Certificate of Analysis for solution control lot 09D065. The State contends that a Certificate of Analysis coincides with the calibration report. The State contends that the Alcotest machine is only required to be calibrated semi-annually, while the local police department is required to obtain new solutions every thirty days or twenty-five test subjects, whichever comes sooner. Thus, the lot number on the most recent Certificate of Analysis would not match the one on defendant’s breath tests, as there would have been multiple new solutions between the May 8, 2009 calibration and defendant’s January 25, 2010 breath test.

We do not find the State’s explanation convincing. There are two different types of control tests performed using a simulator solution. There is a control test done as part of the Alcotest’s semi-annual calibration, which here, was last completed on January 12, 2010, using simulator solution control lot 09D065. There are also control tests performed prior to and following a DWI suspect’s breath tests. Here, there was a control test performed prior to and following the three rounds of defendant’s breath tests on January 25, 2010 using “Solution Control Lot: 08J060[.]” Chun, supra, requires the State to enter into evidence “the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant’s control tests.” 194 N.J. at 154 (emphasis added). Nowhere in Chun does it say that that the State may instead use the Certificate of Analysis of the 0.10 simulator solution used in the control test for the Alcotest’s semi-annual calibration.

Next, we address the issue of the Calibrating Unit New Standard Solution Report. During the State’s case, the municipal court admitted into evidence the Calibrating Unit New Standard Solution Report dated January 12, 2010. During cross-examination, defendant’s expert identified the document the State should have admitted, the Calibrating Unit New Standard Solution Report, completed on January 25, 2010, as part of defendant’s Alcotest. Upon examining it, the prosecutor stated, “[n]o, no, I was never provided that document by my, my discovery by the police department.”

The judge then asked “so what’s the State’s position? Do they want to reopen?” At that point, defense counsel objected.

B.

Next, we consider defendant’s conviction based on the observational evidence. To prove a defendant is guilty under the DWI statute, the State may rely on the observational evidence of a lay witness. Bealor, supra, 187 N.J. at 585. Indicia that a person is intoxicated include, but are not limited to —— failure to perform field sobriety tests, slurred speech, sagging knees, bloodshot eyes, and blank stares. See, e.g., id. at 590-91; State v. Oliveri, 336 N.J.Super. 244, 251-52 (App. Div. 2001).

Despite defendant’s arguments to the contrary, we find sufficient credible evidence in the record to support defendant’s DWI conviction based on the observational evidence.

As summarized by the Law Division judge:

First Officer Serritella testified that when he arrived at the scene of the accident, the defendant’s vehicle was in the opposite lane from where it should have been, with the defendant seated in the driver’s seat. Officer Serritella also testified that when he asked the defendant to produce her credentials, she did not respond and simply stared at him, defendant admitted herself to doing so, before slowly producing them. Additionally, the defendant did not successfully perform the field sobriety tests administered by the Officer. Lastly, Officer Serritella made numerous observations concerning the defendant’s physical indicia of intoxication: namely that she swayed as she walked, she had pale complexion, her speech was slow and slurred, she appeared sleepy, and her eyes were bloodshot and watery.

Defendant contends that other evidence shows she was not intoxicated. Notwithstanding defendant’s explanations for her demeanor at the accident scene, the municipal court judge found defendant’s testimony incredible and Officer Seritella’s testimony credible. The Law Division correctly deferred to the municipal judge’s credibility findings, and we are mandated to defer to those findings as well. Locurto, supra, 157 N.J. at 472. Because the findings of the Law Division could reasonably have been reached on sufficient credible evidence present in the record, we affirm defendant’s conviction based upon her physical condition. Howard, supra, 383 N.J. Super. at 548.

III.

We now turn to defendant’s arguments concerning evidentiary issues. Defendant first contends that the “Drinking Driving Questionnaire” and the “Drinking Driving Report” were improperly entered into evidence prior to any testimony.

Hearsay is a statement “other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 801(c). An exception to the hearsay rule is the business record exception. N.J.R.E. 803(c)(6). In order for a document to be admitted under the business record exception:

First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.[State v. Matulewicz, 101 N.J. 27, 29 (1985).]

Here, the Law Division judge properly concluded, police reports, such as the two documents at issue, are generally admissible as business records. See State v. Burris, 357 N.J.Super. 326, 337 (App. Div. 2002). The transcript is unclear as to whether the municipal judge was marking the documents for identification or admitting them into evidence prior to a proper foundation being laid for their admission. Regardless, any harm presented by the premature admission of the reports into evidence was soon mitigated by Officer Serritella testifying as to the contents of the reports.

Defendant’s Sixth Amendment rights were not impacted by the admission of the documents. The Sixth Amendment of the United States Constitution bars the admission of “testimonial” hearsay in a criminal trial without the defendant’s opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004). This was not an issue in this case, as Officer Serritella was available for cross-examination, and was in fact extensively cross-examined by defense counsel. Thus, even if it was error to admit the reports into evidence, it was harmless. State v. Modell, 260 N.J.Super. 227, 247 (App. Div. 1992) (“Hearsay error, depending on the circumstances, may be harmless error or it may require reversal.”).

Defendant also contends that the municipal judge erred by failing to admit her prescription and medical records into evidence and the Law Division erred by failing to consider the records. Defendant fails to provide any authority to support this claim of error.

Nevertheless, defendant testified that she picked up her prescription and testified regarding her foot surgeries. We fail to see where the admission of either record would have had any effect on the outcome of the proceeding. The Law Division judge correctly found that he was bound by the evidentiary record of the municipal court, which did not include the prescription or medical records. See State v. Loce, 267 N.J.Super. 102, 104 (Law. Div. 1991), aff’d o.b., 267 N.J.Super. 10 (App. Div), certif. denied, 134 N.J. 563(1993).

As to defendant’s remaining arguments, we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).