On appeal from the Municipal Court of the Town of West Orange.
[87 NJSuper Page 196] At about 11:45 P.M. on May 26, 1964 two police officers of the Town of West Orange on patrol observed the defendant walking in an unusual manner. The officers approached him more closely and engaged him in conversation. Defendant's pupils were observed to be constricted and his eyeballs were in a glassy state. It took defendant a long time to formulate and express answers to questions. No odor of alcohol was detected. An examination of his right forearm revealed scratches and what appeared to be puncture wounds. The defendant then was taken to police headquarters, questioned, and ultimately examined by the police department physician who pronounced him under the influence of a narcotic drug.
Testimony was offered by defendant that he requested several times to make a phone call, which request was denied, and after the examination by the police physician he requested that he be examined by a physician of his own choice, which request was also denied. He stated that he was held in custody for 26 hours before being released, and he was not formally charged until June 2, 1964, almost a week later. He denied the use of drugs and explained the marks on his arms as being the result of scratches received during the course of his work as a tree surgeon. Defendant's testimony was not contradicted by any of the State's witnesses and no reason appears to disbelieve it. It may therefore be found as fact that he requested the opportunity to be examined by a physician of his own choice, was denied such an opportunity, and was held in custody for a period of 26 hours.
The defendant was charged with being under the influence of a narcotic drug, in violation of N.J.S. 2A:170-8, a disorderly person offense. He was convicted of that offense in the West Orange Municipal Court and has appealed.
The inquiry here is whether, in a case where defendant is charged with being under the influence of a narcotic drug, the denial of an opportunity to be examined by a physician of his own choice deprived defendant of any rights guaranteed by the Constitution of the United States or of the State of New Jersey. The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty or property, without due process of law." And among the natural and unalienable rights guaranteed by Article I, paragraph 1, of the New Jersey Constitution is the right to defend one's liberty.
The aim of due process is to prevent fundamental unfairness. State v. Vaszorich, 13 N.J. 99 (1953). It includes as one of its essential ingredients the opportunity to defend. Twining v. State of New Jersey, 211 U.S. 78, 111, 112, 29 S. Ct. 14, 53 L. Ed. 97 (1908); State v. Zied, 116 N.J.L. 234, 236 (E. & A. 1935). If established, the deprivation of a reasonable opportunity to prepare a defense may be
regarded as a denial of due process. Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
In a prosecution under N.J.S. 2A:170-8 lay witnesses, if sufficiently experienced and trained, may testify generally as to the reaction of narcotic drug users and of the techniques of the use; they may not, however, invade the fields of chemistry, medicine or psychiatry. State v. Campisi, 23 N.J. 513, 520 (1957). The testimony of a physician concerning the physical state of a person accused of being under the influence of narcotics tends to carry rather persuasive weight because of its nature as expert testimony. See State v. Margo, 40 N.J. 188, 190 (1963). The opportunity to present at trial an expert medical witness to testify as to defendant's physical condition would be, to say the least, a highly desirable weapon in the arsenal of defense.
No cases have been found in New Jersey or other jurisdiction dealing specifically with the question of the right of a defendant who is charged with use of narcotics to have his own physician examine him. A few cases have been found, however, in other jurisdictions dealing with the analogous condition of alcoholic intoxication.
In State v. Munsey, 152 Me. 198, 127 A. 2 d 79 (Sup. Jud. Ct. 1956), the right of a defendant charged with driving while under the influence of alcohol to have his physician take a blood sample for test purposes was discussed. The court said:
"When the respondent is held incommunicado and his requests for assistance in procuring a doctor are unreasonably ignored or refused by the detaining officers, it may be said that the respondent is denied the essentials of governmental fair play. Officers charged with law enforcement must always be mindful that the public has as great an interest in the ...