On appeal from Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 13-6-06.
The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Lyons.
This case presents a novel issue as to whether a "rebound effect" or a "hangover effect" from a previous ingestion of cocaine constitutes being "under the influence" of a narcotic drug pursuant to N.J.S.A. 39:4-50. We hold that it does. Defendant, David L. Franchetta, Jr., appeals from a judgment finding him guilty of driving under the influence of cocaine under N.J.S.A. 39:4-50.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On April 30, 2005, at approximately 4:19 a.m., Patrolman Osmundsen of the Middle Township Police Department responded to a two-car accident. There were police cars, emergency vehicles, and a tow truck present at the scene. Osmundsen was outside of his unit when he observed defendant's van driving past the accident scene at a high rate of speed. Osmundsen entered his patrol unit, followed defendant's van, and observed it crossing over the center line before defendant finally pulled over.
Osmundsen noticed that defendant's speech was slurred, his eyes were bloodshot, and he appeared lethargic. His movements were slow and uncoordinated and he was incoherent. When he exited his vehicle, defendant could not stand without assistance. He was arrested and transported to the police station where a breathalyzer test was administered which yielded a .00% blood alcohol content reading. Defendant was then taken to a local hospital where, approximately ninety minutes later, a blood sample was taken. Defendant was cooperative while at the hospital, but his movements remained slow and uncoordinated; he continued to be incoherent at times. The blood test indicated that the only substance of note present in defendant's blood was a cocaine metabolite known as benzolectamine.
Defendant was then interviewed by Sergeant Payne of the State Police, a certified drug recognition expert. Payne had defendant perform certain physical tests which defendant was unable to satisfactorily complete, such as walking heel-to-toe. He concluded that defendant was suffering from the "downside effects" of cocaine ingestion. Payne called the process "crashing," however, he determined that defendant was not under the pharmacological influence of cocaine while driving his van. In other words, defendant was not "on a high."
During defendant's trial, Dr. George Godfrey, after reviewing all of the studies and reports, opined that: (1) illness was not the cause of defendant's lack of physical coordination and mental ability; (2) a sleep-deprived person would not act as defendant acted that morning; (3) defendant was under the influence of cocaine at the time of his arrest; and (4) there was no evidence of any other drug in defendant's system. Godfrey testified that an individual is under the influence of a drug, medically speaking, so long as he or she is suffering from a physiological response to the drug:
Drugs can cause effect, but after they have had their effect, there can be a carry over action on the part of the body which affects coordination and function of the body. So that effect carries over or can carry over for a period of time and it depends on what is happening with the person. And in this instance, the coordination part is a rebound effect from the high. Now the muscles are not working the way they did because, shall we say, they are rather tired out and they are not coordinating well.
The doctor went on to say, "a person's under the influence of a drug as long as they're having a physiological response or action because of that drug."
Dr. Richard Saferstein testified as a defense expert witness. He opined that there was insufficient evidence in the record to find that defendant was under the influence of cocaine at the time.
The Middle Township Municipal Court found defendant guilty of driving under the influence of cocaine, determining that he was operating his vehicle while experiencing a "rebound effect" from previous cocaine use. On appeal, the Law Division found defendant guilty as well. The court sentenced defendant as a second offender and imposed a two-year license suspension and a concurrent two-year registration suspension, forty-eight hours at the Intoxicated Driver Resource Center, a $506 fine, a $200 DUI surcharge, a $50 VCCB penalty, a $75 ...