DWI Appeal - Notice and Demand Statutes and the Right of Confrontation

After SCOTUS approved of the use of notice-and-demand statutes, counsel needs to be conscientious of these provisions. In State of New Jersey v. Heisler, --- A.3d ----, 2011 WL 1885670 (N.J.Super.A.D.) the defendant was charged with (and convicted of) driving under the influence of marijuana. The New Jersey statute first requires the State to notify a defendant at least twenty days before trial that it intends to offer into evidence a laboratory certificate (lab certificate) regarding the composition, quality and quantity of drugs, and must furnish defendant with a copy of the certificate and “all reports relating to the analysis in question.” Second, the defendant must object within ten days of receiving the State's notice of intent, or else waive any objections to the admission of the lab certificate.

In the case sub judice, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence.

The appeals court found that the delay by the State in supplying the required reports tolled the running of the 10 day provision for objecting, and therefore reversed the trial court's ruling:

"We find persuasive defendant's argument that he was not obliged to object to the introduction of the lab certificate until ten days after receiving supporting lab reports and data. To rule otherwise would undermine the dual goals of the notice and demand statute, N .J.S.A. 2C:35–19: (1) to enable defendants to make informed decisions regarding whether to object; and (2) to conserve time and resources of State Laboratory personnel by avoiding unnecessary court appearances. Because defendant objected before the State furnished him with the supporting materials, his objection was timely. Therefore, the court erred in admitting the lab certificate without testimony from the lab analyst and an opportunity for cross-examination."

The case was remanded for a new trial. Of note was the appellate court's additional ruling barring the State from admitting the lab evidence:

"However, the State shall not have the opportunity to call the lab analyst and to cure the initial error of admitting the lab certificate. “A remand is inappropriate in order to afford the State the opportunity to provide proofs it should have provided in the initial trial which were necessary to support a conviction.” State v. McLendon, 331 N.J.Super. 104, 108 (App.Div.2000)."

Lastly, there was an interesting discussion of how to deal with defense attorneys who ALWAYS object to lab reports and insist on confrontation:

While we have discouraged a defendant's “pro forma insistence” that the author of a lab certificate appear in court, we have recognized the defendant's right of confrontation. State v. Kent, supra, 391 N.J.Super. at 380; see also id. at 385–90 (Stern, J., concurring) (concluding that the Supreme Court would apply the Confrontation Clause protections to defendants in prosecutions for quasi-criminal violations involving driving while intoxicated). A defendant need not justify his or her decision to exercise his or her constitutional right of confrontation. An accused is entitled to confront the lab certificate's author, so long as a timely objection is made. State v. Rehmann, ––– N.J.Super. ––––, –––– (App.Div.2011) (slip op. at 5) (“Prior to Melendez–Diaz, we recognized the accused's right to confront the author of a BAC certificate.”); State v. Kent, supra, 391 N.J.Super. at 375 (holding that “defendant was constitutionally entitled to cross-examine the declarants who authored” laboratory reports and blood sample certificate); id. at 382 (stating that defendant may waive his confrontation right by failing to make timely demand for the author's appearance)."

"The effective operation of the notice and demand statute depends in part on the presumption that, as a practical matter, “in the majority of cases a defendant will not challenge the certificate ‘either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance.’ “ State v. Simbara, supra, 175 N.J. at 49 (quoting State v. Miller, supra, 170 N.J. at 431). However, if the defendant is unable to determine, because of the absence of laboratory data, whether there is a basis to wage a “true contest” over the nature of the substance, then the defendant may lodge a protective objection."

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