This is an appeal from a Municipal Court proceeding finding appellant, Michael A. Tiernan, guilty of operating a vehicle while under the influence of drugs contra to N.J.S.A. 39:4-50.
The facts surrounding the conviction are thus: an officer for the City of North Wildwood observed defendant operating a vehicle on August 7, 1972 at 2:40 in the morning. Defendant's car was noticed "to force" another car off the road. Subsequent to the officer's approaching and the defendant leaving the car towards the second vehicle, the defendant was unable to satisfy a request for a driver's license and registration, saying they were back in the car.
During the time on the police force, the police officer testified that he had seen "hundreds" of persons under the influence of alcohol. In addition, the officer testified to his having seen "a great number" of persons under the influence of controlled dangerous substances. As preparation for this aspect of police work, the officer indicated completion of the mandatory academy training in narcotics as well as a week long narcotics course at Sea Girt, New Jersey. The officer was not a pharmacologist, nor a doctor, nor qualified to prescribe drugs. During this part of the officer's testimony, a salient feature of the case was revealed; that there is a pharmacologist on the Wildwood Police Department whose skills and training are employed in the detection of drug cases throughout Cape May County. No blood, urine or saliva analysis was made.
The officer proceeded to describe his observations of Mr. Tiernan's physical condition. The defendant's eyes were said to be glazed, he swayed and though his speech was lucid and conversant, it was described as slow. As a result, defendant was arrested for violating the laws of New Jersey proscribing the driving of a vehicle while under the influence of alcohol.
Upon arrival at police headquarters, a breathalyzer was administered the defendant. The readings indicated at best a negligible amount of blood alcohol. The defendant was then given a series of Romberg type tests to determine agility, and completed them satisfactorily though cumbersomely. Following the officer's testimony as to the failure of defendant's eyes to respond to light, defense counsel's motion to strike the testimony as being without the province of the officer's skill and knowledge, was denied.
The failure to discover sufficient blood alcohol resulted in a change of charges from driving while under the influence of alcohol to driving while under the influence of drugs. The failure to specify the substance producing the observed effects demonstrates the patent inability of the policeman to discern between an individual under the influence of a narcotic drug and one under the influence of alcohol. There was no report as to a medical examination. Upon the testimony of the officer that defendant must have been under the influence of something, the Municipal Court Judge determined that this something was drugs and found the defendant, Tiernan, in violation of N.J.S.A. 39:4-50.
The court is confronted with two germane and interconnected inquiries. Did the State sustain its burden of proving beyond a reasonable doubt that the defendant was in fact under the influence of a narcotic drug as proscribed by the statute? Is a police officer qualified to testify as to one's being under the influence of drugs with no further training than a one week's course with no corroborating medical evidence?
A prosecution under N.J.S.A. 39:4-50 has been deemed a quasi-criminal proceeding and as such "the State has the burden of establishing the guilt of the defendant beyond a reasonable doubt." State v. Siegmeister , 106 N.J. Super. 577 (1969) citing State v. Ingram , 67 N.J. Super. 21 (App. Div.) (1961). The State in the case sub judice has clearly failed to meet this requirement.
An analysis of the statute and the case law development reveals an obvious distinction between the offenses of driving while under the influence of alcohol and while driving under the influence of drugs although both proscriptions are contained in one statutory provision. N.J.S.A. 39:4-50.1 is a legislatively created presumption of intoxication upon the results received from a duly administered breathalyzer test. State v. Magai , 96 N.J. Super. 109 (1967). This presumption pertains solely to alcohol. The legislature was obviously aware that the sobriety or lack thereof is determinable in common parlance by a number of factors; alcohol on the breath, physical instability and the like. The courts likewise have followed this direction in determining that lay opinion may be proffered as to whether an individual was intoxicated.
Lister v. England , 195 A.2d 260 (D.C. App. 1963) noted the purpose of creating statutory presumptions of intoxication was to eliminate the necessity of having an expert witness testify. State v. Guerrido , 60 N.J. Super. 505 (1960) arrived at a similar conclusion by explaining that "although examination by a physician or tests to determine intoxication, or both, are usually given, there is . . . no persuasive reason [why] a state of intoxication [under] . . . 39:4-50 cannot factually be ...