DWI reversed where judge admitted hearsay STATE v TANASHIAN,
Defendant-Appellant.
____________________________
Argued October 24, 2017 Decided November 3, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. 004-
08-14.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0623-15T4NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISIONPER CURIAM
Defendant appeals from his de novo conviction for driving
while intoxicated (DWI),
N.J.S.A.
39:4-50. This
case involves
allegations that
defendant drove under
the influence of
an
inhalant, not alcohol. Erroneous evidentiary rulings, which
may
have influenced credibility findings,
together with cumulative
errors deprived defendant of a fair
trial. We therefore reverse
and remand.
Defendant had an accident in a parking lot at approximately
10:00 a.m. (the parking lot accident), for
which he received no
motor vehicle tickets. Defendant was allegedly involved in a
hit-
and-run accident later that morning (the
hit-and-run accident),
for which he received two tickets: careless
driving,
39:4-97; and leaving the scene of an accident,
129(b).
At approximately 3:40 p.m. the same day, defendant's
vehicle struck a tree (the tree accident),
and he received two
additional tickets: one for DWI,
N.J.S.A.
39:4-50, and one for
careless driving,
Defendant moved to sever the tickets relating to the hit-and-
run
accident and the
tree accident; dismiss
the charges on
discovery
grounds; suppress urine-test results; and
exclude
testimony from the State's drug recognition
expert (DRE), Officer
Salvatore LoCascio. The
Municipal Court judge granted defendant's
motion to sever the tickets, and denied the
motions to dismiss the
tickets,
suppress the urine-test results, and
exclude the
officer's testimony. The Municipal Court judge then tried
the
case on the tree accident charges.
2 A-0623-15T4
The State produced testimony from three witnesses: Officer
John Brown; Officer LoCascio; and Monica
Tremontin, an expert
toxicologist. Defendant produced
testimony from Dr.
Richard
Saferstein. The
State stipulated to
Dr. Saferstein's
qualifications as an expert in the field of
forensic science.
Officer Brown responded to the scene of the tree accident.
When he arrived at the scene, the officer
observed defendant
standing outside his vehicle, which had
struck a tree located on
someone's lawn. No other vehicle was present, although
defendant
eventually told the officer that another
vehicle ran him off the
road.
Officer Brown noticed
red-paint scrapes, which
were
purportedly from
the hit-and-run accident,
on the side
of
defendant's vehicle. Brown testified that defendant produced his
credentials in a "[s]low lethargic
manner," his complexion was
pale, and he "didn't look quite
right." The officer
conducted
field sobriety tests, suspected defendant
was under the influence,
and arrested him after verbally
administering his Miranda1 rights.
Officer Brown had the vehicle towed from the
scene, and transported
defendant to police headquarters.
1
Miranda v. Arizona,
16 L. Ed. 2d 694
(1966).
3 A-0623-15T4
Defendant arrived at the police station and agreed to provide
a urine sample. Defendant gave breath samples, which
showed
Alcotest results of 0.0%. As a result, Officer Brown contacted
the Bergen County Police Department and
requested that its DRE,
Officer
LoCascio, perform a
drug influence evaluation
of
defendant.
Officer LoCascio arrived at the police station and conducted
the examination. He testified that defendant looked
"sluggish,
and he appeared drowsy" and
"drunk-like."
According to the
officer, defendant's speech was "slow,
thick and slurred" and
defendant admitted to taking Xanax, Ambien,
and Klonopin.
Officer LoCascio performed a Horizontal Gaze Nystagmus test,
a Vertical Gaze Nystagmus test, and a
Romberg balance test, all
of which defendant failed. The officer noticed that defendant's
eyelids were tremoring and his eyes were
dilated beyond the average
threshold; his breath had a chemical odor;
his tongue had a
brownish tint to it; and his eyes were
bloodshot and droopy.
Defendant counted the passage of thirty-five
seconds in seventy-
five seconds. Officer LoCascio concluded that defendant
was under
the influence of an inhalant.
Ms. Tremontin analyzed defendant's urine sample using a Gas
Chromatography Mass Spectroscopy. Ms. Tremontin testified that
she tested a urine sample that leaked, which
meant "there was the
4 A-0623-15T4
possibility of the vapor . . . escaping from
the container with
the urine in it." She tested that sample twice: one
analysis was
negative, and the other showed an indication
of difluoroethane
(DFE).
Ms. Tremontin concluded that she did not have a proper
sample, and requested another sample from
the original specimen.
She then tested the new sample twice, and
both were positive for
DFE.
Dr. Saferstein testified that the State's method of testing
defendant's urine could not prove that he
was under the influence
of DFE when the tree accident occurred. He
opined that the testing
could only show that DFE was present in the
urine, but could not
show the quantity, which would clarify the
timing of when defendant
may have been under the influence of DFE.
Dr. Saferstein testified
that traces of DFE may be present in a urine
sample for up to
seventy-two hours after use and that
defendant's positive urine
test does not prove he was under the
influence while driving.
The Municipal Court judge found defendant guilty of DWI.2 In
reaching that verdict, she found the State's
witnesses to be
credible. The Municipal Court judge suspended
defendant's license
for
two years, and
imposed the proper
fines and penalties.
2
The Municipal Court judge then dismissed the careless driving
ticket from the tree accident, and the other
two tickets related
to the hit-and-run accident.
5 A-0623-15T4
Defendant
then appealed from
his DWI conviction
to the Law
Division.
In the Law Division, the judge conducted a de novo trial. He
deferred to the credibility findings of the
Municipal Court judge,
and found defendant guilty of DWI. The judge then suspended
defendant's license for two years, imposed
the same penalties
defendant had received in municipal court,
and then stayed the
sentence pending this appeal.
On appeal, defendant argues:
POINT I
THE LAW DIVISION JUDGE ERRED IN NOT FINDING
THAT THE MUNICIPAL COURT JUDGE DID NOT ABUSE
HER DISCRETION IN HER EVIDENTIARY RULINGS BY
THE ADMISSION OF THE "NEW JERSEY POLICE CRASH
INVESTIGATION REPORT" (S-1), THE "FIELD
SOBRIETY CHECKLIST" (S-2), THE LETTER OF
SERGEANT FIRST CLASS KEVIN M. FLANAGAN
(S-3),
THE "DRUG INFLUENCE EVALUATION" (S-4), AND THE
"LOG OF DRUG INFLUENCE EVALUATION" (S-5); THE
MUNICIPAL COURT VIOLATED NOT ONLY DEFENDANT'S
SIXTH AMENDMENT CONFRONTATION RIGHTS, BUT
VIOLATED HIS FOURTEENTH AMENDMENT DUE PROCESS
RIGHT TO A FAIR TRIAL, VIOLATED THE UNITED
STATES SUPREME COURT'S RULING IN CRAWFORD V.
WASHINGTON,[] AND VIOLATED THE NEW JERSEY
SUPREME COURT'S RULING IN STATE V. KUROPCHAK.
POINT II
THE LAW DIVISION FINDING OF GUILT DE NOVO
SHOULD BE REVERSED AS TO THE DWI CONVICTION
AND A FINDING OF "NOT GUILTY" SHOULD BE
ENTERED; THE LAW DIVISION COMMITTED CLEAR
ERROR IN FINDING DEFENDANT GUILTY AND THE
INTERESTS OF JUSTICE DEMAND INTERVENTION AND
CORRECTION AS THE STATE FAILED TO PROVE THE
REQUISITE ELEMENTS OF DEFENDANT'S OPERATION OF
6 A-0623-15T4
A MOTOR VEHICLE WHILE UNDER [THE] INFLUENCE
OF DRUGS BEYOND A REASONABLE DOUBT.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
FAILING TO EXCLUDE THE STATE'S EXPERT WITNESS
AND IN REFUSING TO CONDUCT A FRYE[3] HEARING
SINCE THE DRE PROGRAM AND THE DRE WITNESS WERE
BOTH UNQUALIFIED UNDER EVIDENCE RULE 702 AND
PURSUANT TO STATE V. DORIGUZZI; THE ADMISSION
OF THE DRE EXPERT TESTIMONY VIOLATED THE
DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS
RIGHT TO A FAIR TRIAL.
POINT IV
THE DWI CONVICTION MUST BE REVERSED AND THE
SUMMONSES DISMISSED (OR, AT THE VERY LEAST,
ALL EVIDENCE AND THE DEFENDANT'S STATEMENTS
SUPPRESSED) AS THE ARRESTING OFFICER LACKED
PROBABLE CAUSE TO ARREST THE DEFENDANT; THE
TRIAL COURT WAS CLEARLY MISTAKEN AND THE
INTERESTS OF JUSTICE DEMAND INTERVENTION AND
CORRECTION.
POINT V
THE TRIAL COURT WAS CLEARLY MISTAKEN IN
FAILING TO SUPPRESS THE DEFENDANT'S URINE
SPECIMEN WHICH WAS OBTAINED AT HEADQUARTERS
WITHOUT A WARRANT OR VALID CONSENT; THE
INTERESTS OF JUSTICE DEMAND INTERVENTION AND
CORRECTION.
POINT VI
THE COURTS BELOW ERRED IN FAILING TO SUPPRESS
OR GIVE LITTLE WEIGHT TO THE TESTIMONY OF THE
STATE'S CHEMIST REGARDING HER
ANALYSIS OF THE
DEFENDANT'S URINE BASED ON DEFECTIVE CHAIN OF
CUSTODY AND A LEAKING CONTAINER IN WHICH THE
URINE WAS STORED; THE TRIAL COURT ABUSED ITS
3
Frye v. United States,
293 F. 1013
(D.C. Cir. 1923) (outlining
expert
testimony, authoritative literature,
and judicial
recognition as the methods of determining
general acceptability
of scientific methods).
7 A-0623-15T4
DISCRETION IN ADMITTING TESTIMONY AS TO THE
URINALYSIS RESULTS.
POINT VII
THE NUMEROUS ERRORS THAT OCCURRED AT TRIAL
DEPRIVED DEFENDANT OF HIS FOURTEENTH AMENDMENT
DUE PROCESS RIGHT TO A FAIR TRIAL MANDATING A
REVERSAL OF HIS DWI CONVICTION.
The following general standards guide our review. When a
defendant appeals to the Law Division from a
conviction entered
in a municipal court, the judge is required
to conduct a de novo
review of the record, giving "due
regard to the municipal judge's
opportunity to view the witnesses and assess
credibility." State
v. Golin,
363 N.J. Super.
474, 481 (App. Div. 2003) (citing State
v. Johnson,
42 N.J. 146,
157 (1964)). On appeal
from the Law
Division, we must determine whether the
judge's findings "could
reasonably
have been reached
on sufficient credible evidence
present in the record." Johnson, supra,
42 N.J. at 162. "Any
error or omission shall be disregarded by
the appellate court
unless it is of such a nature as to have
been clearly capable of
producing an unjust result . . .
." R. 2:10-2.
N.J.S.A. 39:4-50(a) prohibits operating a
motor vehicle
"while
under the influence
of intoxicating liquor,
narcotic,
hallucinogenic or habit-producing
drug." "[T]he phrase 'narcotic,
hallucinogenic or
habit-producing drug' includes
an inhalant
. . . ." Ibid.
Here, the State maintained that defendant was
8
A-0623-15T4
under the influence of DFE. Although DFE is not listed in the
statute, the Supreme Court has held that
N.J.S.A.
39:4-50(a) "does
not require that the particular narcotic be
identified."
State
v. Tamburro,
68 N.J. 414,
421 (1975).
"A conviction for DWI requires proof beyond a reasonable
doubt." State v. Kuropchak,
221 N.J. 368,
382 (2015). The State
attempted to prove defendant was under the
influence of DFE by
offering testimony from two experts and by
introducing testimony
from Officer Brown's observations of
defendant at the scene of the
tree accident and police station. Critical to accepting the
State's
theory of the
case was the
believability of these
witnesses, because without accepting their
expert opinions and
observation testimony, the State would be
unable to show defendant
was under the influence of DFE. Here, we conclude the Municipal
Court judge's credibility determinations
"may have [been] unduly
influenced" by multiple layers of
inadmissible hearsay.
Id. at
374.
I.
We begin by addressing defendant's contention as to the
admissibility of a police crash
investigation report (S-1); a
field sobriety checklist (S-2); a letter
congratulating Officer
LoCascio (S-3); a drug influence evaluation
report (S-4); and a
log
of drug influence
evaluations (S-5). Defense
counsel
9 A-0623-15T4
repeatedly objected to the admissibility of
these documents on
hearsay grounds.
We accord "substantial deference to
a trial court's
evidentiary rulings." State v. Morton,
155 N.J. 383,
453 (1998),
cert. denied,
(2001).
"[T]he decision of the trial court must stand unless it
can be shown that the trial court palpably
abused its discretion,
that is, that its finding was so wide of the
mark that a manifest
denial of justice resulted." State v. Carter,
91 N.J. 86,
106
(1982).
Such is the case here.
Officer Brown prepared
S-1, which is
a five-page crash
investigation report. The assistant
prosecutor properly presented
S-1 to the officer during his testimony,
solely as an aid to
refresh his recollection. At the conclusion of all testimony,
however, the State moved S-1 into evidence
to prove the truth of
what the entire report asserted. S-1 is therefore inadmissible
hearsay even though the officer testified
and was subject to cross-
examination.
S-1 also contains multiple embedded hearsay statements from
other declarants, including an alleged
witness to the hit-and-run
accident, a police officer who reported what
that individual told
him
about the hit-and-run accident, Officer
LoCascio, and
statements from defendant's wife. At no point did the State lay
10 A-0623-15T4
a proper foundation to move S-1 into
evidence, including any of
the multiple layers of hearsay.
S-2 is a one-page document prepared by Officer Brown after
completing the field sobriety tests. The officer testified about
performing the tests and the results. Certainly he could use S-2
to refresh his recollection if need be, but
the document is
considered hearsay and the State laid no
foundation for its
admissibility. Additionally, S-2 contains embedded hearsay
from
Officer LoCascio by reporting his opinion
that defendant was under
the influence of an inhalant.
S-3 is an April 20, 2010 letter to Officer LoCascio from a
sergeant of the Alcohol/Drug Test Unit of
the Department of Law
and Public Safety. The sergeant congratulated the officer on
becoming a DRE expert, and made other
comments in the letter as
to the officer's qualifications as an
expert. Officer LoCascio
testified about his own qualifications. If he needed S-3 to
refresh his recollection, then he could have
used the document.
Otherwise, S-3 is hearsay and the State
failed to lay a foundation
for its admissibility at trial.
Officer LoCascio prepared S-4, which is his drug influence
evaluation report. The officer could have used S-4 to refresh
his
recollection during
his testimony, however,
the document is
considered hearsay and inadmissible unless
it falls into a hearsay
11 A-0623-15T4
exception.
S-4 also contains additional statements from Officer
Brown, who told Officer LoCascio that
defendant's wife had told
him defendant possessed a large quantity of
computer cleaning
solvents, which the wife said defendant had
ingested. The State
did not lay a foundation for the
admissibility for S-4 or for the
embedded hearsay statements under any exception
to the hearsay
rule, or even under N.J.R.E. 703.
S-5 is a seven-page hearsay document purportedly logging
Officer LoCascio's drug evaluations of
numerous individuals not
involved in this case. The officer testified at the trial and
could have recited this information, subject
to relevancy grounds,
and if he was unable to do so, then the
officer could have used
S-5 to refresh his recollection.
In Kuropchak, the Court concluded that the admissibility of
a Drinking Driving Questionnaire and a
Drinking Driving Report
contained inadmissible hearsay and "may
have unduly influenced the
municipal court's credibility
findings." Kuropchak,
supra,
221 N.J. at
373-74. We too
conclude that the
embedded hearsay
statements contained in S-1 to S-5,
especially the statements by
defendant's wife about his ingestion of
cleaning solvents, may
have influenced the Municipal Court judge's
findings that the
State's witnesses testified credibly.
Moreover, the admissibility
of embedded hearsay statements from the wife
and purported witness
12 A-0623-15T4
to
the hit-and-run accident
deprived defense counsel
of the
opportunity to cross-examine them.
II.
Defendant contends that the police seized his urine sample
in violation of his federal and state
constitutional rights.
Defendant argues that the police violated
his rights by obtaining
his urine specimen without proper consent or
a warrant. Defendant
urges us, at the very least, to remand like
the Supreme Court did
in State v. Verpent,
221 N.J. 494
(2015) and State v. Adkins,
221 N.J. 300
(2015). We agree and remand on this
issue for further
proceedings.
The Supreme Court in Adkins, held that it would apply
Missouri v. McNeely,
185 L. Ed. 2d
696 (2013), retroactively.
Adkins, supra,
McNeely, held that "in drunk-driving
investigations, the natural
dissipation of alcohol in the bloodstream
does not constitute an
exigency in every case sufficient to justify
conducting a blood
test without a warrant." McNeely, supra,
185 L. Ed. 2d
at 715. Adkins further held that
law
enforcement should "present to the
court their basis for believing
that exigency was present in the facts
surrounding the evidence's
potential dissipation and police response
under the circumstances
13 A-0623-15T4
to the events involved in the
arrest." Adkins, supra,
Under certain circumstances, courts
have held obtaining
warrantless urine
samples subsequent to
arrest to be
constitutional. In State v. Malik,
221 N.J. Super.
114, 118, 120
(App. Div. 1987), we concluded that a
request for urine fell under
the incident to arrest exemption and the
exigency exemption to the
warrant requirement. We further stated that "a person
arrested
by the police with probable cause to believe
that [he or] she has
recently ingested a controlled dangerous
substance has no federal
constitutional right to prevent being
required to give a urine
sample." Id.
at 122. We
explained that "urinalyses are
commonplace in these days of periodic
physical examinations and
do not constitute an unduly extensive
imposition on an individual's
personal privacy and bodily
integrity." Ibid.
After its decision in Adkins, the Supreme Court remanded in
Verpent, supra,
221 N.J. at 495. Verpent involved a defendant
voluntarily providing a urine sample
following DRE testing to
police who did not have a warrant for it. State v. Verpent, No.
A-3807-10 (App. Div. July 2, 2012) (slip op.
at 5), rev'd
494 (2015). The Supreme Court ordered a new suppression
hearing
to address exigency "on a newly
developed and fuller record in
light of . . . Adkins." Verpent, supra,
221 N.J. at 494. As in
14 A-0623-15T4
Verpent, we too remand to develop a more
complete record, after
which the Municipal Court judge should
re-visit defendant's motion
to suppress the urine sample.
III.
We reject defendant's contention that the Municipal Court
judge erred by failing to conduct a Frye
hearing and permitting
Officer LoCascio to testify as a DRE.
In a criminal case, we ordinarily review de novo a trial
judge's decision after a Frye hearing. State v. McGuire,
Super. 88, 123-24, 130 (App. Div.), certif. denied,
(2011).
Here, the question is whether the Municipal Court judge
erred by not conducting a Frye hearing as to
Officer LoCascio.
Generally,
a trial judge
has discretion in
determining the
sufficiency of
an expert's qualifications "and [his
or her
decision] will be reviewed only for manifest
error and injustice."
State v. Ravenell,
43 N.J. 171,
182 (1964), cert. denied,
982,
13 L. Ed. 2d 572
(1965). Such is not the case
here.
Expert testimony only requires that a witness be qualified
"by
knowledge, skill, experience, training, or
education."
N.J.R.E. 702. Here, the Municipal Court judge
properly admitted
the DRE testimony. New Jersey courts have not invalidated
DRE
protocol or DRE experts. See e.g., State v. Franchetta, 394 N.J.
15 A-0623-15T
4 Super. 200
(App. Div. 2007). Moreover, the
Municipal Court judge
permitted extensive testimony from Officer
LoCascio about his
qualifications and did not abuse her
discretion when she found him
to be a DRE. The Supreme Court has also
found that police officers
were
eligible experts on
marijuana intoxication pursuant
to
N.J.R.E. 702 because of their specialized
training "in detecting
drug-induced intoxication." State v. Bealor,
187 N.J. 574,
592-
93 (2006).
IV.
We reject defendant's contention that the arresting officer
lacked probable cause.
The probable cause to arrest standard is
"a 'well grounded'
suspicion that a crime has been or is being
committed" by the
defendant.
State v. Waltz,
61 N.J. 83,
87 (1972) (quoting State
v. Burnett,
42 N.J. 377,
387 (1964)). "Probable
cause exists
where the facts and circumstances within . .
. [the officers']
knowledge and of which they had reasonably
trustworthy information
[are] sufficient in themselves to warrant a
[person] of reasonable
caution in the belief that an offense has
been or is being
committed." Schneider v. Simonini,
163 N.J. 336,
361 (2000) (first
and second alterations in original) (quoting
Brinegar v. United
States,
338 U.S. 160,
175-76,
69 S. Ct. 1302,
1310-11, 93 L. Ed.
16 A-0623-15T4
1879, 1890 (1949)), cert. denied,
148 L. Ed. 2d
959 (2001).
Probable cause for driving under the influence will be found
where an officer "ha[d] reasonable
grounds to believe that [the
driver was] operating a motor vehicle in
violation" of the DWI
statute.
N.J.S.A.
39:4-50.2; see also Strelecki v. Coan,
Super. 279, 284 (App. Div. 1967).
In assessing probable cause, a
judge considers the totality of the circumstances.
State v. Moore,
181 N.J. 40,
46 (2004). The facts are viewed
"from the standpoint
of an objectively reasonable police
officer." State v.
Basil,
202 N.J. 570,
585 (2010) (quoting Maryland v. Pringle,
371,
124 S. Ct. 795,
800,
157 L. Ed. 2d
769, 775 (2003)).
Here, Officer Brown
had reasonable grounds
to believe
defendant was operating a motor vehicle in
violation of the DWI
statute.
Defendant was outside
his vehicle after
the tree
accident,
produced his credentials lethargically, giggled at
Officer Brown, failed the field sobriety
tests, and denied that
he had been in an accident.
V.
We reject defendant's argument that the court failed to
suppress
testimony from Ms.
Tremontin because of
an alleged
defective chain of custody as to the leaking
urine container. The
United States Supreme Court has made clear
"it is not the case[]
17 A-0623-15T4
that anyone whose testimony may be relevant
in establishing the
chain of custody, authenticity of the
sample, or accuracy of the
testing device, must appear in person as
part of the prosecution's
case."
Melendez-Diaz v. Massachusetts,
557 U.S. 305,
311 n.1,
129 S. Ct. 2527,
2532 n.1,
174 L. Ed. 2d
314, 322 n.1 (2009). Rather,
the Court explained that gaps in chain of
custody go to the weight
of the evidence, not its admissibility. Ibid.; see also Morton,
supra,
155 N.J. at 446-47. Furthermore, the positive DFE test
results came from the second urine sample,
which had not leaked.
Even if the State failed to demonstrate the
chain of custody, such
a failure would go to the weight of the
evidence and not the
admissibility.
After considering the record, arguments at oral argument
before us, and the briefs, we conclude that
defendant's remaining
arguments are "without sufficient merit
to warrant discussion in
a written opinion." R. 2:11-3(e)(2). In reversing the DWI
conviction, we do not mean to suggest that
the State may ultimately
not prevail. Rather, we emphasize that we premise the
reversal
primarily on the potentially infected credibility
determinations
flowing from the multiple layers of embedded
hearsay. The outcome
on remand will depend on the proofs
presented.
Reversed and remanded for a new trial in the municipal court.
In fairness to the Municipal Court judge who
tried the case and
18 A-0623-15T4
made the credibility findings, we remand to
a different Municipal
Court judge for further proceedings
consistent with this opinion.
We do not retain jurisdiction.
