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State v. Lutz3/16/1998
percent. Based on his investigation of the accident and the results of the blood test, Colberg issued several summonses to defendant.
Defendant's blood had been analyzed by the hospital on an Ekta routine chemistry analyzer. Prior to conducting the test, the medical technologist ran control tests using an Ektachem liquid performance verifier, which had been commercially prepared outside the hospital. The results indicated the control was within the acceptable standards. The hospital's Administrative Director of Laboratory Services testified that quality control and instrument repair records indicated that quality control was within range and that no repairs were done on the instruments prior to the time of testing which would have interfered with the results. However, no records were submitted specifically indicating whether the machine had been properly calibrated at the time of the test.
Thomas Brettell, Assistant Chief Forensic Scientist for the New Jersey State Police, testified that a serum alcohol level of 149 milligrams indicated a blood alcohol concentration of .128 percent. Brettell acknowledged there were differences between blood testing methods employed by the State Police for "forensic purposes" and methods used by hospitals testing for "clinical purposes," including the use by the State Police of gas chromatography, samples of whole blood rather than serum, and the maintenance of a "chain of custody."
Dr. Richard Saferstein, defendant's forensic toxicology expert, criticized the methods used to test defendant's blood. He claimed that the hospital failed to conduct duplicate testing and failed to provide documentation indicating that it had calibrated the machine. He noted that the manufacturer's protocol required recalibration whenever a new lot number of enzymatic chemicals was introduced and criticized the hospital for failing to test for levels of lactate and lactate dehydrogenase ("LDH"). Further, Saferstein stated that such testing was "part and parcel" of the routine blood tests performed by hospitals. He acknowledged, however, that the manufacturer's warning regarding potential interference of elevated LDH and lactate levels with blood alcohol determinations primarily concerned blood specimens taken from people who were dead or near death or specimens from individuals suffering from various clinical conditions, none of which pertained to defendant. He also acknowledged that a study which warned of the same dangers was conducted on machines made by manufacturers other than Ektachem.
Saferstein stated that the Ektachem testing method is no different than any other enzymatic type system on the market and that it is a well accepted machine in clinical chemistry. He admitted, however, he had never worked with the Ektachem machine that was used by the hospital.
Defendant did not testify at the trial. The Municipal Court Judge concluded that based on the evidence presented, the machine used to test defendant's blood was reliable and that based on defendant's blood alcohol level, he was guilty of driving under the influence of alcohol. In addition, the Judge concluded that as a result of defendant's failure to maintain control of his vehicle after tapping his brakes, he was guilty of careless driving.
In defendant's de novo appeal to the Law Division, he argued that: the blood tests were unreliable, and the State had not proven his blood alcohol level beyond a reasonable doubt; the officer had no probable cause to arrest defendant; the complaint was unconstitutionally vague; and he was subject to double jeopardy "with regard to the same conduct of a conviction of the drunk driving and careless driving count". He did not raise be
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