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State v. Lutz3/16/1998
fore the Law Division the issue of whether the Municipal Court Judge wrongfully denied his request for a jury trial. The State filed no cross appeal.
At the de novo hearing, the Law Division Judge found that the clinical tests were not shown to be less accurate than forensic tests and the machine used was generally accepted and state of the art. The judge also found there was no basis for the lactate challenge or that duplicate testing was necessary in a clinical setting with trained scientists. The Judge concluded that based upon the presence of alcohol on defendant's breath, and the blood test showing a prohibited amount of alcohol in his blood, there was probable cause to arrest defendant. The judge explained:
Here we're dealing with a hospital, and a hospital's accuracy, it seems to me, is of much greater importance than the accuracy of police officers. The importance of accurate blood testing in a hospital just can't be over emphasized. That's why we have here not a breathalyzer, but a state of the art Ekta machine utilized, and we have qualified scientists running these tests, from a nurse with 19 years' experience withdrawing the blood, to a qualified scientist running a test on it.
I see no need for the Court to insist that the hospital run two such tests in order for the Court to accept the results. I'm satisfied that the foundational requirements for the Court to accept the results are definitely present in the record, and I accept the results.
I find no factual basis which would render Dr. Saferstein's opinion applicable to this particular case, and I find, as the Court did below, that the defendant is guilty of 39:4-50, driving while intoxicated, and 39:4-97, careless driving.
Defendant contends that the results of his blood test are forensically unreliable and inadmissible because: (1) the hospital conducted a single blood test instead of two tests as conducted by the police using a breathalyzer; (2) the State presented no evidence that the machine had been calibrated; and (3) the hospital had not run tests for lactate or LDH.
Contrary to defendant's contentions, we find no just reason to interfere with the Judge's finding that the blood test procedure here was reliable. It was undisputed that there may be differences in the methodology used for tests conducted by law enforcement for "forensic" purposes in comparison to those conducted by a hospital for "diagnostic" purposes. Nor is it disputed that in a hospital setting, the blood sample of a suspected drunken driver "should be taken in a medically acceptable manner." State v. Dyal, 97 N.J. 229, 238 (1984). In the present case, both the Municipal Court Judge and the Law Division Judge found that the procedure utilized to test defendant's blood was sufficient to establish the reliability of defendant's test results. There was substantial credible evidence in the record to support these findings. State v. Johnson, 42 N.J. 146, 162 (1964).
Defendant's contention that the police lacked probable cause to arrest him is also without merit. After being given his Miranda rights, defendant consented to a blood test. As a result of defendant's consent, probable cause is not an issue. Once the officer received the blood test results, showing that defendant had an equivalent blood alcohol concentration above the proscribed .10% limit set forth in N.J.S.A. 39:4-50, he had probable cause to arrest defendant. Such a reading established a per se offense of driving under the influence even in the absence of any additional evidence of intoxication or impaired ability to drive. See State v. Lentini, 240 N.J. Super. 330, 332 (App. Div. 1990). Additionally, defendant had been involved
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