Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
Defendant appeals a judgment of conviction by the County Court for being under the influence of a barbiturate (N.J.S.A. 2A:170-77.8), entered following a trial de novo upon an appeal from the municipal court. Defendant was sentenced to the county penitentiary for six months.
On January 19, 1968 defendant was apprehended by Bloomfield Patrolman DeMasi at approximately 6:45 P.M. At that time defendant and another man were slumped over in the front seat of an automobile. DeMasi nudged defendant, who thereupon stared and mumbled but never answered the question as to what was wrong. The officer then recognized him as a registered narcotic addict. Defendant was placed under arrest and searched. The search revealed a small plastic cannister containing three white pills with the letters CIBA on them.
At or about 7:15 that evening defendant was examined by Bloomfield police surgeon Galioto at the police station. The physician testified that defendant was under the influence of Doriden, a drug similar in its action to phenobarbital, a barbiturate. The drug induces narcosis and sleep and is usually prescribed at bedtime. Defendant told the doctor that he had taken two pills that day, the last one at 5 P.M.
Upon arriving at headquarters Patrolman DeMasi called the proprietor of the drug store and the doctor whose names appeared on the container. He ascertained that a prescription issued to defendant by a Dr. Moretti had been filled the night before for 15 pills.
Defendant took the stand and admitted having the pills pursuant to a prescription given to him by his physician, Dr. Moretti. He conceded that although the prescription was for one at bedtime, he had taken two during the day of his arrest. He testified that his doctor told him that he could take the drug during the day as a tranquilizer. However, Dr. Moretti, who was treating defendant for a gastric neurosis and a nervous condition, testified that he told him that he could take no more than a half of a tablet during the day.
In attempting to account for the 15 pills defendant testified that in addition to the 2 he had taken, 3 were in the container, 1 1/2 were found in the car and 8 1/2 were at his home at the time of his arrest. At the trial he produced an envelope containing 8 1/2 pills.
The trial judge was not impressed with defendant's testimony. From all of the evidence the judge found there was no basis for a conclusion that the pills in the envelope were the same as were in the original prescription bottle, and it was more plausible that defendant had during the day taken a good many of the 12 tablets that were missing from the bottle. Accordingly, the judge concluded that the State had sustained its burden of proving that defendant was under the influence of the drugs.
Defendant on this appeal does not challenge the trial judge's factual finding as to the amount of pills he consumed. Rather, he advances the legal argument that a person is entitled to an acquittal of being a disorderly person for using or being under the influence of a prescription legend drug in violation of N.J.S.A. 2A:170-77.8, if it appears that he obtained the drugs on the valid prescription of a duly licensed physician. In support of this argument he asserts that there is nothing in the statute which states that only the proper and prescribed dosage must be taken. Thus, he contends now, as he did below, that having obtained the drugs pursuant to such a valid prescription, he was entitled to an acquittal, even though he consumed them in excess of the prescribed dosage.
N.J.S.A. 2A:170-77.8 in its present form provides:
Except as hereinafter provided, any person who uses or is under the influence of, or who possesses or has under his control, in any form, any depressant or stimulant drug as defined pursuant to law or any other prescription legend drug, which is not a narcotic drug within the meaning of chapter 18 of Title 24 of the Revised Statutes, unless obtained from, or on a ...