On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 57-2004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 17, 2006 -- Decided
Remanded by Supreme Court Resubmitted October 10, 2006
Before Judges Parker and C.S. Fisher.
On September 21, 2006, the Supreme Court granted certification and summarily remanded this matter for reconsideration in light of State v. Bealor, 187 N.J. 574 (2006).
In Bealor, the Supreme Court reversed our decision*fn1 in which we held that the State failed to prove beyond a reasonable doubt that the defendant was driving under the influence of marijuana in violation of N.J.S.A. 39:4-50, in the absence of a qualified expert's opinion that the defendant was under the influence of marijuana. Id. at 328-29. The conviction was based solely on the testimony of the arresting officer that the defendant's "'conduct, physical and mental condition and the symptoms displayed'" indicated marijuana use. Ibid. (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)). The officer was never qualified as an expert. The Supreme Court reversed, holding that the testimony of the arresting officer "in respect of defendant's erratic and dangerous driving, his slurred and slow speech, his 'bloodshot and glassy' eyes, his droopy eyelids, his 'pale and flushed' face, his 'fumbl[ing] around the center console and his glove box searching for all [of] his credentials'" coupled with "the smell of burnt marijuana . . . his sagging knees and the 'emotionless stare on his face'" was proof beyond a reasonable doubt that the defendant was driving under the influence of marijuana. 187 N.J. at 590.
Here, the arresting officer testified that he first saw defendant at the Fleet Bank ATM, sitting in her car, which had a flat tire. He observed that defendant "was 'very lethargic,' 'slurring her words,' that she was crying and her eyes were 'watery' and her face 'flushed.'" Defendant admitted she had taken Xanax, Fiorinal and Ambien. At the police station, defendant's breathalyzer test indicated she had not been drinking, but a certified drug recognition expert (DRE) observed that defendant "was 'slow to respond [and] slurring her speech,'" although "her pupils reacted normally, her pulse was normal and her blood pressure slightly elevated."
In her brief submitted on remand, defendant argues that her condition was so "markedly different" from the defendant in Bealor that the State cannot prove beyond a reasonable doubt that she was driving while intoxicated. We disagree.
Although Bealor's symptoms were more numerous, the weight of the State's proofs was sufficient here because the DRE, who had extensive training and was certified in drug recognition, opined that defendant's appearance and demeanor indicated she was impaired. Defendant argues that her expert, Dr. Richard Saferstein, "unequivocally stated that had the defendant taken Fiorinal, it would have had to have been at least three or four days prior to the urine test, because there was no codeine found in defendant's urine." In our recent opinion in State v. Franchetta, ___ N.J. Super. ___ (App. Div. 2007), however, we held that "although the cocaine ingested by defendant was not pharmacologically active at the time of [his arrest], it was the proximate cause of his impaired behavior" and the defendant was, therefore, guilty of DWI.
Here, we are satisfied that the State demonstrated beyond a reasonable doubt that defendant was driving while impaired, in violation of N.J.S.A. 39:4-50, as a result of the prescription drugs she had taken -- albeit the drugs ...