State v. Julie Kuropchak

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Julie Kuropchak (A-41-13) (072718)

Argued October 21, 2014 -- Decided April 28, 2015

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, the Court considers the admissibility of evidence in the prosecution of driving while
intoxicated (DWI) cases.
On January 25, 2010, at approximately 2:00 p.m., defendant had a sip of a margarita. Later, feeling ill,
defendant took Nyquil and a homemade remedy of apple cider vinegar and water. At 8:30 p.m., defendant met with
her doctor who prescribed an antibiotic and two pain relievers. Defendant immediately picked up the prescriptions,
but did not take either. Driving home from the pharmacy, defendant turned onto a two-lane, two-way road that
sloped uphill. When she reached the top of the hill, she saw an approaching vehicle straddling the center line.
Defendant hit her brakes, swerved, collided with the oncoming vehicle, and lost consciousness. When she woke up,
the car was filled with smoke and she tasted blood in her mouth. Officer Dennis Serritella responded to the scene
and performed three sobriety tests, two of which defendant failed. He observed that she looked down multiple
times, spaced out her steps, slurred her speech, and had bloodshot and watery eyes. Concluding that she was
intoxicated, he arrested her.
Defendant agreed to take an Alocotest (breathalyzer), which certified operator Officer Jose Brito
performed. First, he observed her for twenty minutes. At 10:08 p.m., the machine performed a control test. He then
administered the first set of tests at 10:11 (tests one through four). On tests two and three, defendant failed to
produce the minimum volume of air for the Alcotest to generate a blood-alcohol level. The first and fourth tests
yielded results, but they were not within an acceptable tolerance range. At 10:35 p.m., the Alcotest machine self-
performed another control test. Officer Brito administered a second set of tests at 10:37 (tests five and six). Both
tests yielded results, but they were also not within an acceptable tolerance range. The machine performed a control
test at 10:53 p.m., after which Officer Brito administered a third set of tests at 10:54 (tests seven through nine).
Defendant failed to produce a minimum volume of air on test seven. Tests eight and nine, however, both generated
results of .10% BAC, which were within an acceptable tolerance range.
At trial, Gary Aramini, an Alcotest expert, and Officer Serritella testified. Aramini said that the tests were
done improperly and that the State had failed to enter the right simulator solution Certificate of Analysis and the
most recent Calibrating Unit New Standard Solution Report into evidence. He also testified that Officer Brito failed
to wait the required twenty minutes between the second and third set of tests and that lip balm, blood in defendant’s
mouth, and a cell phone in the testing room may have tainted the results. The court admitted the Drinking Driving
Questionnaire (DDQ) and Drinking Driving Report (DDR) into evidence as business records. The court also
admitted Officer Brito’s Alcotest Operator Certification, the Alcotest Calibration Certificate, Part I -- Control Tests,
the Alcotest Calibration Certificate, Part II -- Linearity Tests, the Calibrating Unit New Standard Solution Report for
solution control lot number 08J060, and a Certificate of Analysis 0.10 Percent Breath Alcohol Simulator Solution.
This Certificate was admitted without objection; however, the State concedes that it was for lot 09D065 rather than
08J060, which was the simulator solution used in defendant’s control test.
On August 10, 2010, the municipal court found defendant guilty of DWI. On de novo review, giving due
deference to the municipal court’s credibility determinations, the Law Division found defendant guilty of DWI.
The Appellate Division affirmed defendant’s conviction. This Court granted defendant’s petition for certification,
limited to the admissibility of the documentary evidence, the Alcotest results, and the sufficiency of the
observational evidence. State v. Kuropchak, 216 N.J. 360 (2013).
HELD: The municipal court’s admission of the Alcotest results without the foundational documents required by State
v. Chun, 194 N.J. 54 (2009) was error. Further, because the DDQ and DDR contained inadmissible hearsay, which
may have unduly influenced the municipal court’s credibility findings, the matter is remanded for a new trial.
1. If a municipal court convicts a defendant of DWI, the defendant must first appeal to the Law Division. The Law
Division reviews the municipal court’s decision de novo, but defers to credibility findings of the municipal court.
Appellate courts should defer to trial courts’ credibility findings. Occasionally, however, a trial court’s findings
may be so clearly mistaken that the interests of justice demand intervention and correction. (pp 15-17)
2. A court may convict a defendant of DWI if she registers a blood alcohol level of 0.08% or higher. This finding of
guilt is subject to proof of the Alcotest’s reliability. The operator must observe the subject for twenty minutes.
After twenty minutes, the Alcotest machine automatically conducts a blank air test to determine if there are any
chemical interferents in the room. Additionally, a control test is conducted; if the Alcotest is working properly, that
control test will generate a result between 0.095 and 0.105. The State must also admit certain foundational
documents: (1) the most recent calibration report prior to a defendant’s test, with part I--control tests, part II--
linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent new standard
solution report prior to a defendant’s test; and (3) the certificate of analysis of the 0.10 simulator solution used in a
defendant’s control tests to prove that the Alcotest was in working order. (pp. 17-18)
3. Here, the last semi-annual calibration was completed on January 12, 2010, with simulator solution control lot
09D065. The solution control lot for the control test performed prior to and following the three rounds of breath
tests performed on defendant was solution control lot 08J060. Under Chun, the State was required to provide the
Certificate of Analysis of the 0.10 Simulator Solution used in defendant’s control test. The State, however,
mistakenly admitted the Certificate of Analysis for the semi-annual simulator solution control lot 09D065 instead.
Additionally, the most recent Calibrating Unit New Standards Solution Report was not admitted into evidence
during the State’s case. Given that the foundational documents were not admitted into evidence, the State presented
no evidence as to the reliability or accuracy of the Alcotest results and, therefore, defendant’s conviction of per se
intoxication was improper. (pp. 18-20)
4. Defendant contends that the DDR and the DDQ were admitted into evidence in violation of the Confrontation
Clause. A person charged with a criminal offense has the right to confront his accusers. Officer Serritella’s
documentation of the incident must be considered the recordation of testimonial statements because his observations
were made to establish that defendant was driving while intoxicated. Since the officer testified at trial and was
extensively cross-examined, the Confrontation Clause was not violated by the admission of the DDR and DDQ.
(pp. 20-23)
5. As for defendant’s contention that the DDR and DDQ are hearsay not subject to any exception, the Court
observes that hearsay is inadmissible unless it fall into one of certain recognized exceptions. To qualify as a
business record, a writing must: (1) be made in the regular course of business, (2) within a short time of the events
described in it, and (3) under circumstances that indicate its trustworthiness. Foundational reports for breath testing,
with certain qualifications, are admissible under the business record exception to the hearsay rule. Here, however,
the DDR contains a narrative account of what the officer saw at the scene and includes factual statements,
observations, and the officer’s opinions. Thus, the DDR contains inadmissible hearsay. Although the DDQ also
does not appear initially to constitute hearsay, it incorporates by reference the DWI report in the “remarks” section
and the DWI report, in turn, contains several inadmissible opinions. The DDQ’s content thus also rises to the level
of inadmissible hearsay and must be excluded. Therefore, the DDR and the DDQ were inadmissible hearsay outside
the scope of the business records exception. (pp. 23-25)
6. Here, the municipal court heard defendant’s testimony concerning the events on the day of the incident, as well as
the testimony of Officer Serritella. The court found the Officer’s testimony more credible than defendant’s and
therefore found defendant guilty. The court’s credibility determinations, however, were made after the DDR and the
DDQ were admitted into evidence, notwithstanding the impermissible hearsay statements they contained, and after
the Alcotest results were admitted into evidence despite the lack of requisite foundational documents. The
cumulative effect of the inclusion of the DDR, the DDQ, and the Alcotest results may have tilted the municipal
court’s credibility findings. Thus, the Court lacks sufficient confidence in the proceedings to sanction the result
reached and concludes that the interests of justice require a new trial. It is only because of the unique confluence of
events in this case – the inappropriate admission of the Alcotest results as well as the DDR and DDQ – that the
Court remands for a new trial. Had the only flaw been the admission of the DDR and DDQ, which contained
hearsay, Officer Serritella’s testimony would have alleviated much of that problem. Here, however, the cumulative
effect of the errors may have tilted the municipal court’s credibility findings. (pp. 25-26)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED for a new trial.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON;
and JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-41 September Term 2013
072718

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIE KUROPCHAK,

Defendant-Appellant.

Argued October 21, 2014 – Decided April 28, 2015

On certification to the Superior Court,
Appellate Division.

John V. Saykanic argued the cause for
appellant (Miles R. Feinstein, attorney; Mr.
Saykanic and Mr. Feinstein, on the briefs).

David A. Malfitano, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney).

John Menzel argued the cause for amicus
curiae New Jersey State Bar Association
(Paris P. Eliades, President, attorney;
Ralph J. Lamparello, of counsel and on the
brief).

Robyn B. Mitchell, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

This case poses important questions about the admissibility

of certain evidence in the prosecution of driving while

1
intoxicated (DWI) cases. After a four-day trial, defendant

Julie Kuropchak was convicted by a Garfield Municipal Court

Judge of DWI contrary to N.J.S.A. 39:4-50. The court heard

testimony from the arresting officer, the officer who operated

the Alcotest machine, defendant’s expert on Alcotest procedure,

defendant, and defendant’s father and brother. The court also

admitted, over defendant’s objection, the Drinking Driving

Questionnaire (DDQ) and Drinking Driving Report (DDR) completed

by the arresting officer upon questioning defendant. Defendant

did not object to various documents, including documents alleged

to establish that the Alcotest breath-testing device was in

working order when used to measure defendant’s blood alcohol

content (BAC).

The municipal court found defendant guilty based on two

independent grounds: first, the officers’ observations of her

behavior, which the court found more credible than defendant’s

account of the incident and; second, the Alcotest results, which

reported a .10 BAC. After a trial de novo, the Law Division

also found defendant guilty based on the officers’ observations

and the Alcotest results. Defendant appealed. The Appellate

Division expressed some reservations about the sufficiency of

the foundational documents offered in support of the Alcotest,

but did not decide the admissibility of the test results. The

panel did determine that the DDQ and DDR were admissible under

2
the business records exception to the hearsay rule and that,

because the arresting officer testified as to the contents of

the reports, there was no violation of the Confrontation Clause

of the Sixth Amendment of the United States Constitution. The

appellate panel held that there was sufficient credible evidence

in the record to support defendant’s DWI conviction and

accordingly affirmed.

We hold that it was error to admit the Alcotest results

without the foundational documents required by State v. Chun,

194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.

Ed. 2d 41 (2008). Further, although we find no violation of the

Confrontation Clause with respect to the admission of the DDQ

and the DDR, we determine that those reports constitute

inadmissible hearsay. We conclude that consideration of this

improperly admitted evidence may have unduly influenced the

municipal court’s credibility findings. Therefore, we reverse

the judgment of the Appellate Division and remand for a new

trial.

I.

On January 25, 2010, defendant and three friends went to

Houlihan’s Restaurant in Hasbrouck Heights. They arrived

between 2:00 and 3:00 p.m. and stayed for approximately two

hours. They shared appetizers, and defendant took a sip of her

friend’s margarita. At trial, defendant testified that she did

3
not drink any other alcohol that day but had taken a dose of

Apidex, an appetite suppressant, at 9:00 a.m. the day before.

After leaving the restaurant, defendant returned home

alone. Feeling ill from a urinary tract infection, defendant

took Nyquil and a homemade remedy of apple cider vinegar and

water. Defendant had an appointment with her doctor at 8:30

p.m. that evening; the doctor prescribed an antibiotic and two

pain relievers. Defendant picked up the prescription at 8:48

p.m. at a pharmacy adjacent to the doctor’s office, but did not

take any medication at that time.

On her way home, defendant turned onto Chestnut Street, a

two-lane, two-way road that slopes uphill in the direction

defendant was driving. As she reached the top of the hill,

defendant saw a vehicle approaching from the opposite direction.

According to defendant, the vehicle was straddling the center

line and thus driving in both lanes. The vehicle had an

interior light on but its headlights were off. Defendant hit

her brakes and swerved to the left of the oncoming car.

According to her testimony, she chose to swerve left instead of

right to avoid the cars parked along the right-hand side of the

road.

Defendant’s car collided head-on with the oncoming vehicle.

The driver of the other vehicle was later charged with driving

while intoxicated. The collision caused defendant to lose

4
consciousness. When she awoke, the airbags had deployed and the

car was filled with smoke and dust. Defendant testified that

she tasted blood in her mouth, her chest hurt, and a piece of

her necklace had become embedded in her neck.

Officer Dennis Serritella of the Garfield Police Department

arrived at the scene. He observed that the vehicles appeared to

have collided head-on and that defendant’s car was in the wrong

lane. Officer Serritella asked defendant for her credentials;

he stated that she stared at him for a “few moments” and then

produced them slowly. According to Officer Serritella,

defendant declined to go to the hospital. She told Officer

Serritella that she was coming from her doctor’s office and

showed him the prescriptions. Defendant tried to drink water,

but was forbidden to do so.

Officer Serritella advised defendant that he was going to

conduct field sobriety tests, and led her to flat ground about

twenty feet from the accident. Officer Serritella began with

the finger-to-nose test, which defendant passed. He then

conducted the one-legged balance test, which requires the

subject to stand on one leg for thirty seconds. Defendant

failed the test, dropping her leg “many times.” She explained

to Officer Serritella that she had had surgeries on her feet at

age thirteen that left her with pinched nerves and rendered her

unable to balance on one leg. Lastly, Officer Serritella

5
conducted the walk-and-turn test, which requires the subject to

walk nine paces in a heel-to-toe manner while keeping her head

up, and then turn around and walk in the opposite direction.

Defendant failed this test, as she looked down multiple times

and spaced out her steps. Officer Serritella also observed that

defendant swayed as she walked, her knees sagged, her speech was

slow and slurred, her demeanor was sleepy, her eyes were

bloodshot and watery, her hands moved slowly, and her face was

pale. However, he did not smell alcohol on her breath.

Based on his observations, Officer Serritella concluded

that defendant was intoxicated. He handcuffed her and brought

her to police headquarters. At several points defendant asked

why she was being treated like a criminal when she had done

nothing wrong. At headquarters, Officer Serritella arrested

defendant and read her Miranda1 rights.

Officer Serritella read defendant the DMV Standard

Statement for Operators of a Motor Vehicle, which informed

defendant of her rights and obligations with respect to

providing a breath sample. Defendant consented to take an

Alcotest, or breathalyzer test. During the municipal court

trial, Officer Serritella testified that all cell phones were

removed from the testing room. Defendant testified that her

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
cell phone was in the testing room the entire time, that she

applied lip balm multiple times during the Alcotest process, and

that she had a tongue ring in her mouth during the tests.

Officer Jose Brito, a certified Alcotest operator,

conducted the tests. Officer Brito observed defendant for

twenty minutes before he administered the Alcotest. At 10:08

p.m., the machine performed a control test. Officer Brito then

administered the first set of tests to defendant at 10:11 (test

one), 10:13 (test two), 10:15 (test three), and 10:17 (test

four). On the second and third tests, defendant failed to

produce the minimum volume of air for the Alcotest to generate a

blood-alcohol level. The first and fourth tests yielded

results, but they were not within acceptable tolerance ranges of

each other.2

At 10:35 p.m., the Alcotest machine self-performed another

control test. Then, Officer Brito administered a second set of

tests at 10:37 (test five) and 10:40 (test six). Both tests

yielded results, but they were not within acceptable tolerance

ranges of each other. The machine performed another control

2 To be valid, an Alcotest must generate two readings within
acceptable tolerance of each other out of a maximum of eleven
attempts. “Tolerance is the range of any set of measurements
that is accepted as being representative of a true reading . . .
[and] the wider the acceptable tolerance between reported
results, the lower our confidence in the accuracy of any of the
reported results.” Chun, supra, 194 N.J. at 110.

7
test at 10:53 p.m., after which Officer Brito administered a

third set of tests at 10:54 (test seven), 10:56 (test eight),

and 10:58 (test nine). Defendant failed to produce a minimum

volume of air on the seventh test. The eighth and ninth tests,

however, both generated a result of .10% BAC, and were thus

within acceptable tolerance of each other.

At trial, Gary Aramini, an expert on the Alcotest procedure

who had reviewed the discovery documents provided to him,

testified for the defense that the Alcotest was improperly

conducted and that the State failed to enter into evidence two

documents that are required under Chun to show that the Alcotest

is properly calibrated: the proper simulator solution

Certificate of Analysis and the most recent Calibrating Unit New

Standard Solution Report. He also stated that Officer Brito

failed to wait the required twenty minutes between the second

and third set of Alcotest sequences. Lastly, Aramini testified

that lip balm, blood in defendant’s mouth, and the presence of a

cell phone in the testing room could have tainted the Alcotest

results.

In addition to testimony, the court admitted into evidence

various documents. Officer Serritella testified and laid a

foundation for the DDQ and DDR. After his testimony and over a

defense objection, the court admitted those documents into

evidence as business records under N.J.R.E. 803(c)(6).

8
 The court also admitted into evidence certain documents to

establish a foundation for the Alcotest machine, as well as the

simulator unit that is used to calibrate the device and the

chemical composition of the solutions that the machine requires.

Such foundational evidence is mandatory pursuant to Chun, supra,

194 N.J. at 142. The documents included Officer Brito’s

Alcotest Operator Certification, the Alcotest Calibration

Certificate, Part I -- Control Tests, and the Alcotest

Calibration Certificate, Part II -- Linearity Tests. The latter

two documents were signed by Officer Robert Demler and dated

January 12, 2010; all three were admitted without objection.

The court also admitted the Calibrating Unit New Standard

Solution Report for solution control lot number 08J060 dated

January 25, 2010, and signed by Officer Ronald Polonkay. This

document, however, was admitted at the conclusion of limited

rebuttal testimony from Officer Serritella.

Finally, the court admitted a Certificate of Analysis 0.10

Percent Breath Alcohol Simulator Solution. This Certificate was

admitted without objection; however, the State concedes that it

was for lot 09D065 rather than 08J060, which was the simulator

solution used in defendant’s control test. Accordingly, the

State admitted the incorrect document.

On August 10, 2010, the municipal court found defendant

guilty of DWI based on two independent grounds. First, the

9
municipal court found defendant guilty based on the .10 BAC

Alcotest results. Second, the municipal court found that the

officers’ observations of defendant’s behavior at the scene of

the accident established defendant’s guilt.

In its oral decision, the municipal court noted that

Officer Serritella and Officer Brito were “entirely credible,”

“more credible” than defendant. The municipal court also found

that the Alcotest was operated properly. The court noted that,

“without going through each document,” the State entered the

correct documents into evidence to show that the Alcotest was

properly calibrated. The court determined, further, that

defendant’s expert testimony was “unpersuasive.” The court

sentenced defendant, a third-time offender, to 180 days in jail,

a ten-year driver’s license suspension, and a three-year

interlock on her ignition following the suspension period. The

court also assessed monetary fines and penalties.

The Law Division reviewed the case de novo pursuant to Rule

3:23-8 and, on July 19, 2011, the court found defendant guilty

of DWI based on both the physical evidence at the scene and the

Alcotest results, giving due deference to the municipal court

judge’s credibility determinations.

The Appellate Division affirmed defendant’s conviction.

The panel first considered the Alcotest results. The panel

noted certain inadequacies as to the foundational evidence the

10
State introduced in support of the Alcotest. Nonetheless, the

panel declined to address whether the evidential record fairly

supported the Law Division’s guilty finding under the per se

prong of the DWI statute, because it found that the

observational evidence against defendant sufficient to support

her conviction under the statute’s other prong.

Addressing defendant’s evidentiary challenges, it concluded

that the municipal court properly admitted the DDR and the DDQ

under the business records exception to the hearsay rule.

Although the panel found the transcript to be unclear as to

whether the municipal judge was marking the documents for

identification or admitting them into evidence before Officer

Serritella testified, it concluded that any harm presented by

the premature admission of the reports into evidence was soon

mitigated by Officer Serritella’s testimony about the contents

of the reports. The panel also found that because Officer

Serritella, who authored the reports, testified at trial and was

extensively cross-examined, the reports’ admission did not

violate defendant’s right to confrontation under the Sixth

Amendment. U.S. Const. amend. VI.

The panel ultimately held that, based on the location of

defendant’s vehicle, Officer Serritella’s observations at the

scene of the accident, and defendant’s performance on the field

11
sobriety tests there was sufficient credible evidence in the

record to support defendant’s DWI conviction.

Defendant filed a petition for certification, which this

Court granted limited to the admissibility of the documentary

evidence and the Alcotest results, and the sufficiency of the

observational evidence. State v. Kuropchak, 216 N.J. 360

(2013). The New Jersey Attorney General and the New Jersey

State Bar Association appeared as amici curiae.

II.

Defendant argues that the municipal court admitted the DDQ

and the DDR before the State laid a proper foundation for them,

thus presupposing that police officers and the reports they

write are inherently reliable. Defendant also argues that

narrative reports such as the DDQ and the DDR violate Crawford

v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004), because they are testimonial hearsay.

With respect to the observational evidence of defendant’s

guilt, defendant argues that the record does not support her

conviction. Defendant asserts that each fact that incriminates

her is also consistent with an innocent explanation. For

example, the fact that defendant’s car was found in the wrong

lane is explained by the fact that the other vehicle was driving

in the middle of the road and defendant swerved to the left to

avoid hitting parked cars. Defendant alleges that the other

12
purported indicia of defendant’s intoxication -- such as her

slowness in responding, pale complexion, slurred speech, and

bloodshot eyes -- are attributable to the severity of the motor

vehicle accident, airbag deployment, and an illness that caused

her to seek medical help shortly before the collision.

Furthermore, defendant maintains that she failed two of the

field sobriety tests because of prior foot surgeries which

continue to affect her balance.

Lastly, defendant argues that the municipal court should

have suppressed the Alcotest results. First, defendant asserts

that the State failed to lay a proper foundation for the results

as required by Chun. Defendant also notes that, contrary to

Chun, not all of the requisite documents were introduced during

the State’s case-in-chief.

The State contends that defendant’s trial did not raise any

Confrontation Clause issues because Crawford addresses the

admissibility of testimonial evidence when a witness does not

testify. Here, on the contrary, Officer Serritella drafted the

police reports and testified at trial. The State therefore

argues that because the reports only contained statements by

Officer Serritella and defendant, who both testified at trial,

the statements did not violate the Confrontation Clause.

The State also argues that the observational evidence in

this case is sufficient to sustain defendant’s conviction. It

13
emphasizes that Officer Serritella observed several separate

indicia of intoxication: defendant’s vehicle was in the wrong

lane; she was slow to respond and to produce her credentials;

she failed two of the field sobriety tests; she swayed as she

walked; her speech was slow and slurred; her demeanor was

sleepy; and her eyes were bloodshot and watery. Even though

defendant proffers various innocent explanations, the State

maintains that those observations should be considered in the

aggregate. The State also contends that the municipal court

judge found the State’s witnesses more credible than defendant.

The Attorney General, appearing as amicus curiae, urges

this Court to affirm defendant’s conviction. The Attorney

General argues that the municipal court did not err by admitting

the DDR and DDQ into evidence under the business records

exception to the hearsay rule, N.J.R.E. 803(c)(6), because the

police prepared these reports in the regular course of business,

shortly after the events described in the reports, and in a

manner that justifies their admission.

Additionally, the Attorney General asserts that the

municipal court correctly admitted into evidence the Calibrating

Unit New Standard Solution Report dated January 25, 2010, one of

the foundational documents for the Alcotest, because the court

had allowed the State to reopen its case. The Attorney General

admits, however, that the correct Certificate of Analysis for

14
the 0.10 simulator solution does not appear to have been entered

into evidence. Additionally, the Attorney General asserts that

even though defendant provided individual explanations for her

behavior when questioned by Officer Serritella, when viewed in

the aggregate, the numerous indicia of intoxication observed by

Officer Serritella were more than adequate to establish

defendant’s intoxication.

The New Jersey State Bar Association (NJSBA), also

appearing as amicus curiae, argues that narrative police reports

including the DDR and DDQ should not be considered business

records under N.J.R.E. 803(c)(6), absent a stipulation by the

parties, because those reports contain testimonial statements

and are “prepared for the primary purpose” of criminal

prosecution. The NJSBA also asks this Court to reaffirm that

strict compliance with Chun, supra, is required, and to hold

that the Alcotest results in this matter were not admissible due

to the State’s failure to offer proper core foundational

documents. The NJSBA contends that because the appellate panel

ultimately affirmed defendant’s conviction on the observational

prong, it did not determine whether the evidentiary record would

support a conviction on the per se prong.

III.

A conviction for DWI requires proof beyond a reasonable

doubt. State v. Kashi, 360 N.J. Super. 538, 544 (App. Div.

15
2003) (citation omitted), aff’d, 180 N.J. 45 (2004). If a

municipal court convicts a defendant of DWI, the defendant must

first appeal to the Law Division. R. 7:13-1; R. 3:23-1. The

Law Division reviews the municipal court’s decision de novo, but

defers to credibility findings of the municipal court. State v.

Johnson, 42 N.J. 146, 157 (1964).

“Appellate courts should defer to trial courts’ credibility

findings that are often influenced by matters such as

observations of the character and demeanor of witnesses and

common human experience that are not transmitted by the record.”

State v. Locurto, 157 N.J. 463, 474 (1999). Thus, appellate

review is limited to “whether the findings made could reasonably

have been reached on sufficient credible evidence present in the

record.” Johnson, supra, 42 N.J. at 162. “This involves

consideration of the proofs as a whole,” and not merely those

offered by the defendant. Ibid. “Any error or omission shall

be disregarded by the appellate court unless it is of such a

nature as to have been clearly capable of producing an unjust

result[.]” R. 2:10-2; see also State v. Macon, 57 N.J. 325, 338

(1971); Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824,

828, 17 L. Ed. 2d 705, 710 (1967) (“‘The question is whether

there is a reasonable possibility that the evidence complained

of might have contributed to the conviction.’” (quoting Fahy v.

Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed.

16
2d 171, 273 (1963))). Occasionally, however, a trial court’s

findings may be so clearly mistaken “that the interests of

justice demand intervention and correction.” Johnson, supra, 42

N.J. at 162. Moreover, legal conclusions are subject to de novo

review. State v. Gandhi, 201 N.J. 161, 176 (2010).

IV.

We first address whether a proper foundation was laid for

the admission of the Alcotest results. A court may convict a

defendant of DWI if she registers a blood alcohol level of 0.08%

or higher. N.J.S.A. 39:4-50(a); State v. Bealor, 187 N.J. 574,

588 (2006). This finding of per se guilt, however, is subject

to proof of the Alcotest’s reliability.

In Chun, this Court set forth mandatory guidelines for

establishing the Alcotest’s reliability. First, when the test

is administered, an Alcotest operator must observe a subject for

twenty minutes before commencing the test to ensure that the

subject does not put anything, such as alcohol, tobacco, or

chewing gum in his or her mouth during that time. 194 N.J. at

79. The operator should also remove all “cell phones and

portable devices” from the testing room. Id. at 80. After

twenty minutes, the Alcotest machine automatically conducts a

“blank air test” to determine “if there are chemical

interferents in the room.” Ibid. Additionally, a “control

test” is conducted; if the Alcotest is working properly, that

17
control test will generate a result between 0.095 and 0.105.

Ibid. A similar control test is completed as part of the

Alcotest’s semi-annual calibration. Id. at 144-45.

In Chun, supra, we directed that the Alcotest “be

programmed to fix the tolerance range to be plus or minus 0.005

percent BAC from the mean or plus or minus five percent of the

mean, whichever is greater,” to ensure reliable results. Id. at

116. If the first and second tests are not within acceptable

tolerance of each other, “the machine prompts the operator to

conduct a third breath test,” and so on. Id. at 81. We also

required the State to admit certain foundational documents to

prove that the Alcotest was in working order. Id. at 145. They

are:

(1) the most recent calibration report prior
to a defendant’s test, with part I--control
tests, part II--linearity tests, and the
credentials of the coordinator who performed
the calibration; (2) the most recent new
standard solution report prior to a
defendant’s test; and (3) the certificate of
analysis of the 0.10 simulator solution used
in a defendant’s control tests.

[Ibid. (emphasis added).]

Here, the last semi-annual calibration was completed on

January 12, 2010, with simulator solution control lot 09D065.

The solution control lot for the control test performed prior to

and following the three rounds of breath tests performed on

defendant was solution control lot 08J060. Under Chun, the

18
State was required to provide the Certificate of Analysis of the

0.10 Simulator Solution used in defendant’s control test. Ibid.

The State, however, mistakenly admitted the Certificate of

Analysis for the semi-annual simulator solution control lot

09D065 instead of the Certificate from defendant’s control test.

Additionally, contrary to Chun, the record shows that the

most recent Calibrating Unit New Standards Solution Report was

not admitted into evidence during the State’s case. During the

State’s case, the municipal court admitted into evidence the

Calibrating Unit New Standard Solution Report dated January 12,

2010. During cross-examination, defendant’s expert testified

that the State was required to enter into evidence the

Calibrating Unit New Standard Solution Report, completed on

January 25, 2010, as part of defendant’s Alcotest. Upon

recognition of this mistake, at the next trial session, the

prosecutor presented, for identification, the Calibrating Unit

New Standard Solution Report dated January 25, 2010. This

document was then admitted into evidence. This admission,

however, was inappropriate. The prosecutor moved to enter the

correct Calibrating Unit New Standard Solution Report at the

conclusion of limited rebuttal testimony from Officer Serritella

that was unrelated to the Alcotest. Moreover, the document was

admitted even though the State had not moved to reopen its case

at that point.

19
 We conclude that the foundational documents required under

Chun were not admitted into evidence. Therefore, the State

presented no evidence as to the reliability or accuracy of the

Alcotest results. We thus hold that defendant’s conviction of

per se intoxication was improper.

V.

We now turn to defendant’s arguments that the admission of

the DDR and DDQ violated the New Jersey Rules of Evidence. This

Court uniformly has endorsed the proposition that “in reviewing

a trial court’s evidential ruling, an appellate court is limited

to examining the decision for abuse of discretion.” Hisenaj v.

Kuehner, 194 N.J. 6, 12 (2008). The general rule as to the

admission or exclusion of evidence is that “[c]onsiderable

latitude is afforded a trial court in determining whether to

admit evidence, and that determination will be reversed only if

it constitutes an abuse of discretion.” State v. Feaster, 156

N.J. 1, 82 (1998), cert. denied 532 U.S. 932 (2001); see also

State v. J.A.C., 210 N.J. 281, 295 (2012). Under that standard,

an appellate court should not substitute its own judgment for

that of the trial court, unless “the trial court’s ruling ‘was

so wide of the mark that a manifest denial of justice

resulted.’” State v. Marrero, 148 N.J. 469, 484 (1997) (quoting

State v. Kelly, 97 N.J. 178, 216 (1984)).

A.

20
 Defendant first contends that the DDR and the DDQ were

admitted into evidence in violation of the Confrontation Clause

and Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L.

Ed. 2d at 203. Additionally, the NJSBA contends that the DDR

and DDQ are testimonial.

A person charged with a criminal offense has the right to

confront his accusers. U.S. Const. amend. VI. This right is

founded on the belief that subjecting testimony to

cross-examination enhances the truth-discerning process and the

reliability of the information. California v. Green, 399 U.S.

149, 159, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970);

State ex rel. J.A., 195 N.J. 324, 342 (2008).

The Confrontation Clause of the United States Constitution

bars the “admission of testimonial statements of a witness who

did not appear at trial unless the witness was unavailable to

testify, and the defendant had a prior opportunity for

cross-examination.” Crawford, supra, 541 U.S. at 53-54, 124 S.

Ct. at 1365, 158 L. Ed. 2d at 194. Additionally, hearsay that

is testimonial in nature is inadmissible, even if it satisfies a

recognized exception to the hearsay rule, when the declarant

does not testify. See Davis v. Washington, 547 U.S. 813, 822,

126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006); State

v. Michaels, 219 N.J. 1, 31 (2014) (noting that New Jersey

applies Crawford’s primary-purpose test when assessing

21
testimonial nature of statement), cert. denied, U.S. ,

135 S. Ct. 761, 190 L. Ed. 2d 635 (2014).

Testimony “is typically [a] solemn declaration or

affirmation made for the purpose of establishing or proving some

fact.” State v. Sweet, 195 N.J. 357, 373 (2008) (quoting

Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed.

2d at 192), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L.

Ed. 2d 601 (2009). Additionally, “[s]tatements taken by police

officers in the course of interrogations” are also testimonial.

Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d

at 237 (citing Crawford, supra, 541 U.S. at 52, 124 S. Ct. at

1354, 158 L. Ed. 2d at 177).

In a criminal context, formal statements to government

officers constitute testimony in a sense that a person’s casual

remark to an acquaintance does not. Sweet, supra, 195 N.J. at

373 (citing Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364,

158 L. Ed. 2d at 192); see also Michaels, supra, 219 N.J. at 31-

32 n.9 (noting Sweet’s distinction between foundational and

testimonial documents). Thus, the Confrontation Clause

generally forbids admitting testimony of a witness who directly

or indirectly provides information derived from a non-testifying

witness, which incriminates a defendant at trial. Branch,

supra, 182 N.J. at 350.

22
 Officer Serritella’s documentation of the incident must be

considered the recordation of testimonial statements.

Serritella’s observations were made for the purpose of

establishing or proving that defendant was driving while

intoxicated. However, the officer testified at trial and was

extensively cross-examined by defense counsel. Thus, the

Confrontation Clause was not violated by the admission of the

DDR and DDQ.

B.

We now turn to defendant’s contention that the DDR and DDQ

are inadmissible hearsay and do not fall within any of the

hearsay exceptions.

Hearsay is defined as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.”

N.J.R.E. 801(c). Hearsay is inadmissible unless it falls into

one of the recognized exceptions. N.J.R.E. 802. To qualify as

a business record under N.J.R.E. 803(c)(6), a writing must meet

three conditions: it must be made in the regular course of

business, within a short time of the events described in it, and

under circumstances that indicate its trustworthiness. State v.

Matulewicz, 101 N.J. 27, 29 (1985) (citation omitted). The

criteria to apply the business records exception have remained

constant. Id. at 29; Sweet, supra, 195 N.J. at 370-71 (2008).

23
 The rationale behind this exception is “‘that records which

are properly shown to have been kept as required normally

possess a circumstantial probability of trustworthiness, and

therefore ought to be received in evidence.’” Matulewicz,

supra, 101 N.J. at 29-30 (quoting Mahoney v. Minsky, 39 N.J.

208, 218 (1963)); see also Fagan v. City of Newark, 78 N.J.

Super. 294, 309 (App. Div. 1963) (finding exception to be

“founded upon the twin principles of reliability and necessity.”

(internal citations omitted)).

We recognize that foundational reports for breath testing,

with certain qualifications, are admissible under the business

record exception to the hearsay rule. Sweet, supra, 195 N.J. at

370-71; Chun, supra, 194 N.J. at 142. However, we have also

recognized that police officers who draft reports have an

interest in prosecuting defendants. See, e.g., State v.

Simbara, 175 N.J. 37, 49 (2002) (“recognizing a laboratory

certificate in a drug case is not of the same ilk as other

business records, such as an ordinary account ledger . . . .

[T]he analyst prepares the laboratory certificate . . . for the

sole purpose of investigating an accused.”).

On the first page, the DDR records the officer’s

observations by means of a checklist of indicia of intoxication.

Officer Serritella checked off the items he observed. The

second page of the DDR contains a narrative account of the

24
events Officer Serritella witnessed at the scene of the

accident. The page includes factual statements, observations,

and the officer’s opinions. For example, Officer Serritella

noted that upon being questioned about her well-being, defendant

“stared back at him.” Additionally, Officer Serritella wrote

that she “paused for a few moments” and “appeared to be very

slow in her actions and responses when questioned.” Officer

Serritella also noted that defendant became very defensive when

questioned. Thus, the DDR contains inadmissible hearsay.

Although the DDQ also does not appear initially to

constitute hearsay, it incorporates by reference the DWI report

in the “remarks” section -- “see DWI report for incident

details” -- and the DWI report, in turn, contains several

inadmissible opinions. The DDQ’s content thus also rises to the

level of inadmissible hearsay and requires exclusion.

Therefore, we hold that the DDR and the DDQ are inadmissible

hearsay outside the scope of the business records exception.

See N.J.R.E. 803(c)(6).

VI.

An appellate court should engage in a “searching and

critical” review of the record when it is faced with a trial

court’s admission of police-obtained statements to ensure

protection of a defendant’s constitutional rights. See State v.

Pickles, 46 N.J. 542, 577 (1966).

25
 Here, the municipal court heard defendant’s testimony

concerning the events on the day of the incident, as well as the

testimony of Officer Serritella. The court found the Officer’s

testimony more credible than defendant’s and therefore found

defendant guilty.

The court’s credibility determinations, however, were made

after the DDR and the DDQ were admitted into evidence

notwithstanding the impermissible hearsay statements they

contained, and after the Alcotest results were admitted into

evidence despite the lack of requisite foundational documents.

The cumulative effect of the inclusion of the DDR, the DDQ, and

the Alcotest results may have tilted the municipal court’s

credibility findings. Thus, we lack sufficient confidence in

the proceedings to sanction the result reached and conclude that

the interests of justice require a new trial. It is only

because of the unique confluence of events in this case –- the

inappropriate admission of the Alcotest results as well as the

DDR and DDQ -- that we remand for a new trial. Had the only

flaw been the admission of the DDR and DDQ, which contained

hearsay, Officer Serritella’s testimony would have alleviated

much of that problem. Here, however, the cumulative effect of

the errors may have tilted the municipal court’s credibility

findings.

VII.

26
 Therefore, we reverse the judgment of the Appellate

Division and remand for a new trial.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion.

27
 SUPREME COURT OF NEW JERSEY

NO. A-41 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIE KUROPCHAK,

Defendant-Appellant.

DECIDED April 28, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7