Opinion
DOCKET NO. A-1636-14T4
04-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOANNE BEYER, Defendant-Appellant.
Robert J. Ferb argued the cause for appellant. Rory A. Eaton, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Acting Somerset County Prosecutor, attorney; Mr. Eaton, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 24-14. Robert J. Ferb argued the cause for appellant. Rory A. Eaton, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Acting Somerset County Prosecutor, attorney; Mr. Eaton, of counsel and on the brief). PER CURIAM
Defendant appeals from the Law Division's order entered after a de novo trial on the record. The Law Division judge found her guilty of driving while under the influence of a narcotic, hallucinogenic or habit-producing drug (DUI), N.J.S.A. 39:4-50(a). After reviewing the record in light of the contentions advanced on appeal and the applicable legal principles, we affirm.
Hillsborough Township Police Officer Ur was dispatched to investigate a motor vehicle parked outside a residence. Upon arrival, Ur observed a minivan parked somewhat off the curb, with the engine running and its lights on. Ur observed defendant sleeping inside the vehicle in the driver's seat. After having difficulty arousing defendant, Ur described her as disoriented and incoherent. Defendant required the officer's assistance in getting out of the car and was "falling, swaying, staggering at times. . . . leaning for balance." When asked if she had been drinking, defendant responded no, but said she had "snorted cocaine" earlier in the day. She also stated she had driven the vehicle.
Based on his observations, defendant's statements and her failure to perform field sobriety tests, the officer determined defendant was under the influence and she was placed under arrest.
At the police station, defendant voluntarily provided a urine specimen; subsequent analysis revealed the presence of cocaine. A forensic toxicologist employed by the New Jersey State Police testified as to the evidence of cocaine consumption in defendant's urine specimen and the three phases of cocaine ingestion, the third stage being complete exhaustion.
Defendant presented an expert qualified in DWI detection and field sobriety tests. The expert stated that the results of the sobriety tests were inconsistent with the presence of cocaine.
On appeal, defendant argues:
POINT I: THERE WAS INSUFFICIENT COMPETENT AND CREDIBLE EVIDENCE PRESENTED TO THE COURT TO SUPPORT A FINDING OF GUILT FOR VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT REGARDING BOTH BEING "UNDER THE INFLUENCE" AND "OPERATION."
Our scope of review is limited. In a trial de novo, the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the [municipal court] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964) (citations omitted); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). Our review is limited to whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.
In addition, the two-court rule provides that we "should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). We are bound by the trial court's findings of fact even though we may have reached a different conclusion, unless we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (citing Johnson, supra, 42 N.J. at 162). However, we address issues of law de novo. Adubato, supra, 420 N.J. Super. at 176.
Although defendant does not dispute the ingestion of cocaine prior to these events, she argues there was insufficient evidence for the judge to conclude she was under the influence of cocaine at the time she was operating her vehicle.
A conviction under N.J.S.A. 39:4-50(a) may be obtained if the State can substantiate that an individual was "under the influence of intoxicating liquor, a narcotic, hallucinogenic, or habit-producing drug." As the Court has stated:
The language "under the influence" used in the statute has been interpreted many times. . . . More recently, in State v. DiCarlo, 67 N.J. 321 (1975), we held that an operator of a motor vehicle was under the influence of a narcotic drug within the meaning of N.J.S.A. 39:4-50(a) if the drug produced a narcotic effect "so altering his or her normal physical coordination and mental faculties as to render such [a] person a danger to
himself [or herself] as well as to other persons on the highway. Id. at 328."
[State v. Tamburro, 68 N.J. 414, 420-21 (1975).]
In a prosecution for driving while under the influence of drugs, competent lay observations of the "fact" of intoxication, together with additional proofs tending to demonstrate the defendant's consumption of drugs as of the time of operation, "constitute proofs sufficient to allow the fact-finder to conclude, without more, that the defendant was intoxicated beyond a reasonable doubt and, thereby, to sustain a conviction under N.J.S.A. 39:4-50." State v. Bealor, 187 N.J. 574, 577 (2006).
The record is replete with evidence indicating that defendant was under the influence. As the Law Division judge noted:
When viewed in the context of the totality of the circumstances the Court found that the Defendant was under the influence of narcotics at a time when she was operating her vehicle. The Defendant's admission to having operated the vehicle before Officer Ur arrived on the scene, her further admission to ingesting cocaine (later corroborated by a urinalysis), the opinion of Officer Ur who had an opportunity to administer a series of sobriety tests and observe the Defendant's overall demeanor as incoherent and disoriented (Defendant was falling, swaying, staggering at times and constantly leaned on Officer Ur for balance), provide ample proof that Defendant
was suffering from a substantial deterioration or diminution of her mental and physical capabilities.
Further, there can be no dispute that the record supports the finding that defendant operated the vehicle on the night in question. "Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). When the officer arrived at the scene, defendant's engine was running, the lights were on and she was asleep in the driver's seat. That circumstantial evidence along with defendant's admission that she had driven the car provides sufficient evidence for her conviction under the statute. See State v. Sweeney, 77 N.J. Super. 512, 520-521 (App. Div. 1962), aff'd 40 N.J. 359 (1963).
We are satisfied from our review of the record that the conclusion reached by the Law Division judge was reached in accordance with the correct standard and is supported by "competent lay observations of the fact of intoxication, together with additional independent proofs tending to demonstrate the defendant's consumption of [drugs] as of the time" of operation. Bealor, supra, 187 N.J. at 577.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION