A Surrogate Lab Technician Does Not Satisfy the Sixth Amendment Confrontation Clause in Criminal and Quasi Criminal Cases in New Jersey

April 29, 2011, the Appellate Division in State v. Rehmann held that the Confrontation Clause of the United States Constitution requires that the State produce the person who actually performed the forensic test, or, as in this case, the person who witnesses the test being performed, and certify that all the proper steps were performed, before an laboratory report will be admitted into evidence.

In this case the State proffered the testimony of a State lab technician in a DWI blood case for the purpose of presenting the defendant’s blood alcohol level (or BAC) was above the legal limit. However, the State in this case did not actually produce the technician who performed the gas chromatograph test but rather his supervisor who witnessed the test being performed. Under these circumstances the Court ruled that the supervisor was not a surrogate witness and because he actually witnessed the proper procedure being performed could accordingly testify without violating the defendant’s Sixth Amendment right to confront witnesses against him.

Although this was a narrow ruling limited to the facts of this particular case, this case however reaffirmed the well stated rule of law in New Jersey that any lab report is inadmissible hearsay without the testimony of the forensic lab technician.

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Motion to Suppress, and the Smell of Raw or Burnt Marijuana

Law Enforcements often reliable ace in the hole for probable cause: “I Smelled Raw or Burnt Marijuana in the Vehicle”, appears to be no longer sufficient for probable cause and in one case the court suppressed forty pounds of weed.

In State v. Ender Pompa, 414 N.J. Super. 219 (App. Div. 2010), the New Jersey Appellate Division gave solace to criminal defense attorneys in New Jersey attempting to defend the “plain smell” marijuana cases, in which the police officer after conducting an illegal search and discovering marijuana in a motor vehicle later claim that the reason for the search was that the officer had smelled raw or burnt marijuana in the vehicle during the motor vehicle stop.

In these types of cases, and the subsequent motion to suppress evidence it was virtually impossible to cross examine the officer to disprove whether he or she did in fact smell anything, and present any evidence that the cop was fabricating a justification for the illegal search.

However, in the Pompa case, the Appellate Division gave a remarkably good weapon in the arsenal of defense attorneys when it held that the “plain smell” of raw marijuana in the sleeping compartment of a tractor was insufficient to allow the New Jersey State Trooper to search that compartment, and that a search warrant was necessary before a search could be done.

This case is of tremendous importance because now it will be more difficult for police officers to fabricate an excuse to search an automobile without a search warrant, and should finally close this loophole for police officers whom routinely disregard the defendant’s Constitutional rights and the Fourth Amendment protections against unlawful and unreasonable searches.

For more information regarding your rights in a criminal case and defending the serious drug and narcotics case in New Jersey criminal courts, consult the Law Office of Vincent J. Sanzone, Jr., at CriminalDefenseNJ.com

Law Office of Vincent J. Sanzone, Jr.

P.O. Box 261

277 North Broad Street

Elizabeth, N.J. 07207

CriminalDefenseNJ.com

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