reckless manslaughter conviction, found that under
Schmerber v. State of California, 384 U.S. 757, 86 S.Ct.
1826, 16 L.Ed.2d 908 (1966); State v. Dyal, 97 N.J. 229
(1984); and State v. Macuk, 57 N.J. 1 (1970),
acquiescence by a defendant for the taking of a blood
sample is not legally significant or necessary, provided the
sample is taken in a medically acceptable manner at a
medical facility in accordance with accepted medical
practices.
State v. Bodtmann, 239 N.J. Super. 33 (App. Div.
1990), held the use of a subpoena duces tecum to obtain
blood test results from a hospital is not a violation of the
physician-patient privilege. The subpoena may issue on
less that probable cause. Bodtmann was approved in State
v. Schreiber, 122 N.J. 579, 588 (1991).
State v. Malik, 221 N.J. Super. 114 (App. Div. 1987),
reversed a trial court’s suppression of a test of a urine
specimen taken from defendant to test for the presence of
CDS. Given the exigent circumstances exception to the
warrant requirement and as a search incident to an arrest,
there was no constitutional violation of rights. The urine
specimen was given voluntarily under supervision and no
physical force was used or required; thus there was no
imposition of the defendant’s personal privacy or bodily
integrity.
B. Breathalyzer (Chemical Breath Testing)
- Bracketing of Breath Test With Inspections
State v. Sandstrom, 277 N.J. Super. 354 (App. Div.
1994), dealt with the admissibility of breath results
when a pre-test inspection certificate as to proper
working order was issued more than 30 days before the
breath test in question was conducted, and the post-test
inspection certificate disclosed a malfunction in the
breath test instrument. State v. Samarel, 231 N.J. Super.
134 (App. Div. 1989), did not, and was not intending to
establish a 30-day pre-test inspection limitation. Thus,
the mere fact that the test was conducted more than 30
days after the last inspection did not invalidate the
results. Further, the malfunction found in the post-
inspection test, could not have been in existence on the
day that the test was administered to the defendant since
the operator could not have completed the eleven step
testing procedure if it was in effect.
State v. Slinger, 281 N.J. Super. 538 (App. Div.
1995), held that the State’s failure to prove the number
of times a simulator solution has been used and the actual
readings obtained by the State Police Coordinator when
the Breathalyzer was tested impacts upon the
admissibility of the Breathalyzer recordings, but that
impact only affects the weight of the State’s proofs.
Defendant’s erratic driving, physical appearance and
demeanor, as well as the smell of alcohol on his breath,
were sufficient indicia of intoxication for the officer to
conclude that the defendant was drunk even without the
Breathalyzer reading.State v. Maure, 240 N.J. Super. 269 (App. Div.
1990), aff’d o.b. 123 N.J. 457 (1991), while noting the
conclusions in Dohme II concerning additional random
sample testing to increase the probability that all
ampoules in the same batch are uniform, continued to
adhere to the rule expressed in State v. Ernst, 230 N.J.
Super. 238, 243 (App. Div. 1989), certif. denied 117 N.J.
40 (1990) and other prior decisions that foundational
requirements are satisfied by admitting the State Police
Coordinator’s certifications indicating that random
sample testing of ampoules from the same batch that was
used in the defendants’ Breathalyzer tests has been
conducted both before and after those examinations. The
Inspection Certifications, attesting to the testing of the
instruments by the use of randomly selected ampoules
would meet the foundational requirement of spot
checking, such random sample testing being reasonably
reliable and yielding appropriate results. And the court
expressed a distinct disinclination to cast the burden on
the State of offering further or additional proof of the
accuracy and validity of the tests employed by the State
Police in spot checking ampoules. Id. at 282-3. Accord,
State v. Giordano, 281 N.J. Super. 150 (App. Div. 1995)
(alcohol breath test results admissible without pretest
certification of test machine if pretest certification made
within month before test and there is no evidence
machine gave inaccurate results).In State v. Samarel, 231 N.J. Super. 134 (App. Div.
1989), the Appellate Division, citing State v. Hudes, 128
N.J. Super. 589 (Bergen Cty. Ct. 1974) and State v.
Lanahan, 110 N.J. Super. 578 (Burlington Cty. Ct.
1970), determined that even if there is only one
inspection certificate for the breath test instrument and
there is evidence why there are no problems with the
breath test administered to the defendant, and even if the
bracketing inspection certificate is missing, the one
inspection certificate is admissible to prove the breath
test instrument was operating properly at the time of the
breath test. The preferred practice is for the State to
introduce both the pre-test and post-test inspection
certificates. This case and State v. Sandstrom, 277 N.J.
Super. 354 (App. Div. 1994), call into question the