Defense must put State on Notice in DWI Blood Cases

This morning’s Appellate Division decision in State v. Kent represents an attempt by the Court to implement the requirements of the Confrontation Clause as construed by the Supreme Court in Crawford v. Washington in a manner that recognizes the practical realities of DWI trials in municipal court. Kent is a DWI blood case. In its ruling today, the Appellate Division affirmed its previous rulings in State v. Berezansky and State v. Renshaw to the effect that a defendant has the right to personally confront the lab tech and the person who drew the blood sample at trial. However, the Court was also troubled by the practical impact that such required testimony will have on lab techs, nurses and other people involved in the system.

In noting the possibility of potential hardship, the Court announced that it disfavors the pro forma insistence that such witnesses appear at DWI trials to vouch for the contents of their reports if there are no bona fide issues about them. Accordingly, the Court ruled that defense attorneys who seek to require live testimony at trial of such witness must put the prosecutor on notice by way of a demand for such testimony within the time requirements established in NJSA 2C:35-19. A failure by the defense to provide such notice will be deemed a waiver. The Court also implied that under Rule 1:4-8 and NJRE 611, the State may seek to avoid the appearance of these witnesses in blood cases by asserting that no legitimate factual issues exist.

Finally, the Court suggested that in order to avoid hardship to the witnesses, the municipal court may want to use remote video conferences or depositions taken on a de bene esse basis.

Download a copy of State v. Kent.

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