Opinion
DOCKET NO. A-4913-10T1
03-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONALD EATON, Defendant-Appellant.
Preston I.H. Fulford argued the cause for appellant. Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Thomas S. Ferguson, Warren County Prosecutor, attorney; Ms. Mosco, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Koblitz and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-36-09-Y08.
Preston I.H. Fulford argued the cause for appellant.
Dit Mosco, Assistant Prosecutor, argued the cause for respondent (Thomas S. Ferguson, Warren County Prosecutor, attorney; Ms. Mosco, of counsel and on the brief). PER CURIAM
Defendant Donald Eaton was convicted in the Greenwich Township Municipal Court of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. Following a trial de novo in the Law Division, he was again found guilty. On the DWI charge, defendant was sentenced, as a second offender, to thirty days of community service, two days in jail which could be served through participation in the Intoxicated Driver Resource Program, and suspension of his driving privileges and registration for two years. Defendant was also required to pay mandatory fines and penalties.
Defendant was also convicted on a charge of careless driving and a charge of failing to maintain a lane. He was sentenced to pay mandatory fines and penalties. He does not appeal either of these two convictions.
On appeal, defendant raises a number of arguments in support of his overall contention that he should have been acquitted of the charge. We find no merit in these contentions and affirm defendant's conviction.
On April 26, 2008, defendant appeared at the Hunterdon Medical Center emergency room complaining of stomach pain. At 11:30 p.m., he was provided with a "GI Cocktail," comprised of Maalox and other pain relief medications. Defendant was also given Pepcid for heartburn relief. An EKG was performed and some blood work was done. Defendant reported that he regularly took several prescribed medications.
Despite being offered the opportunity to remain, defendant chose to leave the hospital after he was discharged. At that time, he was given a sleeping medication, Ambien, and a pain medication, Percocet, to take after he arrived home.
At approximately 6:30 a.m. on August 27, 2008, New Jersey State Trooper Christopher Mulch responded to complaints regarding erratic driving by the driver of a black Corvette on Interstate-78. The driver was later identified as defendant. Upon arriving at the area in question, Mulch observed the Corvette pass him and shift erratically between lanes and onto the center median. Mulch recorded this incident on his vehicle's video recorder. The video was introduced in evidence at defendant's trial. After defendant failed to respond to Mulch's emergency lights, the officer activated his sirens. Defendant pulled the Corvette to the side of the road, parking partially on the shoulder of the highway and partially in the left lane of traffic.
Upon approaching defendant's vehicle, Mulch noted that defendant's eyes were watery and that he appeared disoriented. Defendant's hands were shaky and he had great difficulty in responding to the officer's inquiries. Mulch did not conduct any field sobriety tests at the time of the motor vehicle stop because of safety concerns relating to oncoming traffic and defendant's impaired condition. Mulch placed defendant under arrest and took him to the New Jersey State Police barracks.
At the barracks, a battery of tests was conducted, including the Horizontal Gaze Nystagmus (HGN) test, the alphabet test, and a backwards counting test. Although an Alcotest showed that defendant did not have any alcohol in his system, Mulch requested the assistance of a Drug Recognition Expert (DRE) after learning that defendant had been recently treated and released from the Hunterdon Medical Center.
The results of this test can only be used to establish probable cause on the question of intoxication because the test itself is not generally accepted by the scientific community. State v. Doriquzzi, 334 N.J. Super. 530, 536-38 (App. Div. 2000).
Trooper Eliecer Ayala, who had received special training in drug recognition, responded to the barracks. Ayala's training had included instruction on administering field sobriety tests, and on identifying and evaluating the effects of drugs on subjects. Ayala has been certified as a DRE by the International Association of Chiefs of Police since 2004. Ayala opined that, based on defendant's movements, which he described as sluggish, shaky and uncoordinated, and the results of the sobriety tests, defendant was likely under the influence of an analgesic and a central nervous system depressant, and could not drive safely in his current condition.
When tested, defendant's urine contained Phenobarbital, Fluoxetine, Diphenhydramine, Lidocaine and Zolpidem. The State's expert toxicologist testified that these drugs depress the central nervous system and can cause drowsiness, dizziness, disorientation, nervousness and confusion.
Commonly known as Prozac.
Commonly known as Ambien.
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Dr. Richard Saferstein testified as an expert in toxicology and chemistry on behalf of defendant. Dr. Saferstein conceded that Phenobarbital, Fluoxetine and Zolpidem were depressants, but he nevertheless opined that defendant was not under the influence of any of these substances at the time of the traffic stop. However, he also agreed that the troopers, who had actually observed defendant after the motor vehicle stop, were in a better position to determine whether defendant was able to safely drive his vehicle.
Based upon the evidence presented, the Law Division judge found that the State had proven beyond a reasonable doubt that defendant was guilty of driving while intoxicated. The judge found that defendant was observed to be driving in an erratic and dangerous manner. He was not able to pass routine sobriety tests. The judge did not rely upon Trooper Ayala's expert opinion as to the cause of defendant's unsafe driving. Instead, the judge relied only upon Ayala's observations of defendant, and those of Trooper Mulch, on the morning of the incident. The testimony of the State's toxicologist formed the basis of the judge's finding that the cause of defendant's erratic driving was the drugs in his system.
The Law Division judge later denied defendant's motion for reconsideration. The judge rejected defendant's affirmative defense of necessity, raised for the first time in the motion for reconsideration. The judge found that there was no emergency that required defendant to take any of the medications he received from the hospital before he was safely home. In addition, there was no emergency that required defendant to drive himself home since he could have been admitted to the hospital or he could have arranged for a taxi to drive him home.
On appeal, defendant presents the following arguments:
I. THE EVOLUTION OF THE DRUNK DRIVING STATUTEThese arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
a. CASE LAW - ROADMAPII. THE COURT ERRED BY ALLOWING A DRUG RECOGNITION EXPERT IN CONTRAVENTION OF STATE V. HAMMOND
b. PUBLIC POLICY
a. STATE V. HAMMOND - NO EXPERTSIII. THE COURT ERRED BY NOT ALLOWING ANY DEFENSES TO AN INTOXICATION CHARGE WHERE DEFENDANT HAD A BLOOD ALCOHOL CONTENT OF 0.0%
b. EXPERTS AND NET OPINIONS
a. IMPAIRMENT VERSUS INTOXICATION (DUI V. DWI)IV. FUNDAMENTAL FAIRNESS DOCTRINE
b. TYPES OF IMPAIRMENT
i. INTOXICATION AND CONTROLLED SUBSTANCES/CONTROLLED DANGEROUS SUBSTANCES IMPAIRMENT
ii. PSYCHOLOGICAL/MEDICAL IMPAIRMENT
We review the Law Division judge's findings by application of the standard enunciated in State v. Locurto, which requires appellate deference to factual findings when the findings could reasonably be reached through reliance on credible evidence in the record. 157 N.J. 463, 471 (1999). Only when the record produces a "feeling of 'wrongness'" - - that is, when the appellate court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" - - will we disregard a judge's factual findings. Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Having applied this standard of review, we are compelled to defer to the judge's disposition of defendant's claims in this case.
There was plainly sufficient credible evidence to support the Law Division judge's finding that defendant was guilty of DWI beyond a reasonable doubt. He was pulled over after weaving dangerously through traffic along a busy interstate highway. The troopers observed that defendant's eyes were watery. He was disoriented and was unable to successfully complete any of the sobriety tests administered to him. His drug test revealed the presence of Prozac, Phenobarbital and Ambien in his system. It was not disputed that these drugs cause drowsiness, dizziness, disorientation, nervousness, and confusion. Defendant exhibited these very symptoms during his contact with the troopers. Under these circumstances, the Law Division's finding of guilt is amply supported by the record.
Defendant's arguments challenging the admission of Trooper Ayala's expert testimony are now moot because the Law Division did not rely on Ayala's opinion as a DRE to support its finding that defendant was under the influence of drugs at the time he was stopped by Mulch. In support of its conclusion that defendant was intoxicated, the Law Division properly considered Ayala's lay testimony of his observations of how defendant behaved at the barracks, in conjunction with the independent toxicology test that confirmed the presence of judgment-impairment medication in defendant's system. This approach has been specifically sanctioned by the Supreme Court:
[C]ompetent lay observations of the fact of intoxication, coupled with additional independent proofs tending to demonstrate defendant's consumption of narcotic, hallucinogenic or habit-producing drugs as of the time of the defendant's arrest, 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 testimony of Ayala concerning his observations of defendant's unsteady behavior at the barracks, together with the testimony of Trooper Mulch, who had observed defendant dangerously driving through traffic, provided the factual basis for the finding that defendant had operated his vehicle in an unsafe manner and that he was not in a condition to drive. The testimony of the State's toxicologist, who identified the many drugs in defendant's system and detailed their effect, provided more than a sufficient basis for the Law Division's finding that defendant had operated his vehicle while under the influence of a narcotic drug.
Defendant's remaining arguments are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).
Affirmed.