On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 15-07-03.
Before Judges Petrella,*fn1 Lintner and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Justin Bealor, appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after de novo review by the Superior Court.*fn2 Defendant's intoxication was found to be the result of marijuana use. He was sentenced to a six-month suspension of his driver's license, twelve to forty-eight hours in the Intoxicated Driver Resource Center, $250 fine, $100 DWI surcharge, $50 VCCB surcharge, $75 SN surcharge and $30 court costs. We reverse the DWI conviction.
On July 11, 2002, State Troopers Donahue and Ianella were patrolling in Sea Isle, Cape May County. Donahue testified that they first noticed defendant at about 2:21 a.m. as he was weaving from lane to lane and swerving over the yellow center lines. After defendant turned left onto JFK Boulevard, he was traveling eastbound in a westbound lane. The troopers continued to follow him until he pulled into a parking place. They effected a stop and both troopers approached the vehicle. They saw a twelve-pack of beer in the back seat and noticed an odor of alcohol and burnt marijuana on defendant's person. Defendant's eyes were bloodshot and glassy and his eyelids were droopy. His speech was slow and slurred, he fumbled for his documents and appeared confused. When asked if he had anything to drink, defendant responded that he "only drank a couple beers." The troopers asked defendant to get out of the car for a field sobriety test. Donahue testified that defendant's "clothes were all messy," he had an "odor of alcohol and marijuana on him," "[h]is knees sagged a little bit as he stood" and his speech continued to be slow and slurred. Defendant was patted down for weapons and a bulge was found in his back pants' pocket. Defendant claimed it was his wallet. When the trooper looked into the pocket, he saw a multi-colored smoking pipe with what appeared to be marijuana residue.
With respect to the field sobriety test, Donahue testified that defendant's voice was slow and slurred when he recited the alphabet, he paused at the letter "J," but completed the recitation. Apparently, no other field sobriety tests were performed after the pipe was found.
Defendant was placed under arrest for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10, and driving while intoxicated, N.J.S.A. 39:4-50.*fn3 After his arrest, defendant was given Miranda*fn4 warnings and transported to the Woodbine barracks. At the barracks, defendant was given Miranda warnings a second time, and after signing a Miranda warning card, he admitted he had smoked marijuana that morning.
After the troopers administered the breathalyzer tests,*fn5 defendant became angry and abusive. When asked to provide a urine sample, he became even more abusive, cursing the troopers. The first urine sample was contaminated and defendant was asked to provide a second sample, leading to still more abusive behavior. The urine samples were sent to the State Police Laboratory for testing.
Trial began on April 10, 2003, and was continued on July 10, 2003. Defendant objected to the July 10 date and requested a date after August 27, 2003, so that he could attend an internship program in Utah. His request was denied and the trial proceeded on July 10 in defendant's absence.
The State presented the expert testimony of Michael Kennedy, a forensic scientist with the New Jersey State Police Laboratory. Kennedy testified that the primary marijuana metabolite was found in defendant's urine. He explained that the primary metabolite for marijuana is a psychoactive ingredient in marijuana, what causes the intoxication is THC and you don't actually see that in the marijuana. We look for the metabolite of that compound and the metabolite that I found was the THC metabolite, and it's THCC, or, as you can see on the lab report, the chemical name for the compound.
Q: Is there any doubt in your mind that what you found in that urine sample was the result of someone smoking marijuana or ...