Sequestering a Breathalyzer Expert barred in DUI Trial

On February 17, 2009 the Appellate Division in State v. Popovich, A-2862-07, found that the Municipal Court judge committed an error by ordering the the sequestration of defendant's expert. Sequestrating a witness is the act by which a Judge expels a witness from the Court room so as to prevent that witness from hearing the testimony of a witness under examination. In other words, prevents the sequestrated person from hearing testimony given on the stand in court. In the matter of State v. Popovich,

Defendant was stopped while driving on August 12, 2007, in Lake Como. He agreed to take a breathalyzer test, and the results showed a blood alcohol level of .13 and .14. Defendant was arrested and charged with driving while intoxicated.

Defendant, together with his attorney, appeared on November 20 in the Lake Como Municipal Court to defend against the charge. Defendant's attorney had retained the services of an expert to assist him in the defense. Following argument, the municipal court judge granted the request of the municipal prosecutor for a sequestration order and directed that defendant's expert was subject to that order. The municipal court dismissed the objections of defendant's attorney that such an order would hamper his ability to cross-examine the prosecution's witnesses. The municipal court judge indicated that defense counsel, if he felt the need to consult with his expert before proceeding to cross-examination, could either take accurate notes of the testimony or order a transcript of the relevant testimony and then consult with his expert. The municipal court judge relied upon State v. Lanzel, 253 N.J.Super. 168 (Law Div.1991), which held that expert witnesses are as subject to sequestration as lay witnesses.

Faced with that ruling, defendant entered a conditional plea of guilty, waiving any jurisdictional defects and any question of jeopardy. Defendant agreed upon the record that if the sequestration order were reversed in the Law Division, the matter would be remanded to the municipal court for trial, and the prosecution would be free to seek to establish either a per se violation through the Breathalyzer readings or a violation based upon the arresting officer's observations of defendant. All parties agreed that the purpose of proceeding in this fashion was to permit defendant to appeal the sequestration order to the Law Division.

The Law Division judge, after argument, found that the municipal court judge had not abused his discretion in excluding defendant's expert, although he noted that he would have exercised that discretion differently. He entered an order finding defendant guilty of violating N.J.S.A. 39:4-50. Defendant now appeals to this court, arguing that it was error to order the sequestration of his expert. We are compelled to agree."

The practical outcome of this recent ruling is that expert witness in DUI cases can directly challenge the reliability of the state's testing techniques. Basically, if the state introduces facts and conclusions that were, to some extent unanticipated by defense or were unknown prior to trial, the defense can rebut same through competent scientific based testimony.