On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-092.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 8, 2010 - Decided: Before Judges Fisher and Fasciale.
Defendant appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50; speeding, N.J.S.A. 39:4-98; possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1; and possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Contrary to the statutory requirements of N.J.S.A. 2C:35-19c, the State produced on the first day of trial a September 18, 2008 laboratory certificate that confirmed marijuana was found in defendant's car. As a result, defendant was denied his opportunity to cross-examine the technician who prepared the report. We reverse defendant's convictions for possession of marijuana, but affirm his convictions for driving while intoxicated and speeding based on the numerous observations of two troopers.
On August 23, 2008, at approximately 9:30 a.m., Trooper Nicholas Mastrella (Trooper Mastrella) conducted laser surveillance and observed defendant driving a white Chrysler 103 miles per hour on Route 80. The speed limit was sixty-five miles per hour. Trooper Mastrella followed the car, pulled it over, approached it, detected a strong odor of air fresheners, observed defendant's speech was slurred, and noticed that his eyes were bloodshot, watery and glassy. Defendant denied drinking alcohol the previous night.
While defendant sat in his car, Trooper Mastrella asked him to recite the alphabet from the letter "D" to "V," perform a dexterity test by counting on his fingers from one to four and then from four to one, and count from sixty-four to thirty-six. Defendant recited the alphabet quickly, slurred the letters, stopped in the middle, and then continued up to the letter "Z."
He could not count on his fingers from one to four and then four to one. Defendant attempted to count from sixty-four to thirty-six, but skipped number sixty, repeated numbers fifty-two to fifty twice, and stopped counting at thirty.
Trooper Mastrella asked defendant to exit the car and conducted field sobriety tests. He asked defendant to walk heel-to-toe nine steps forward while counting out loud, turn and walk back in the same manner. Trooper Mastrella instructed defendant to keep his hands at his side while he walked. Defendant walked nine steps, forgot to count, asked what to do next, continued nine more steps, turned, and returned half the distance. He did not walk heel-to-toe and failed to keep his hands by his side. Then Trooper Mastrella asked him to raise one leg six inches off the ground, keep his hands to his side, and count until instructed to stop. Defendant counted incorrectly and did not keep his foot six inches off the ground or his hands by his side. Defendant failed all three tests.
Trooper Mastrella arrested defendant for driving while intoxicated,*fn1 handcuffed him, and searched the car. He removed a small plastic bag located in the center console that contained a "greenish, brown vegetative substance." Trooper Mastrella read defendant his Miranda*fn2 warnings at the scene and at the police barracks. At the barracks, Trooper Mastrella asked him if he had smoked marijuana and defendant stated that "Indian people don't smoke." Trooper Mastrella then called Trooper Robert Harrison (Trooper Harrison) and requested that he examine defendant.
Trooper Harrison testified for the State as a drug recognition expert. Trooper Harrison examined defendant at 11:45 a.m., conducted psycho-physical tests, an HGN test, a Romberg test, a walk-and-turn test, a one leg stand test, and a finger-to-nose test. He also obtained defendant's blood pressure, pulse and temperature. Defendant admitted to Trooper Harrison that he smoked a marijuana cigarette at 12:00 a.m. and drank two to three Corona beers the previous night. Defendant failed the tests administered by Trooper Harrison.
The Romberg test required defendant to stand with toes and heels together, arch his back, lower his head, close his eyes, and estimate the passage of thirty seconds. Defendant performed the test quickly, and the trooper observed that defendant swayed from side to side. Defendant started the walk-and-turn and one leg tests prematurely, raised his arms for balance, performed an about-face instead of using small steps to turn around, and missed his heel-to-toe several times. He lost his balance several times and counted quickly during the one leg test. He performed the finger-to-nose test slowly, as if he was thinking about each move. The trooper observed eyelid tremors when defendant closed his eyes and performed the Romberg and finger-to-nose tests. He also observed red conjunctiva and, under direct light, rebound dilation of both pupils - indicators that someone inhaled marijuana. After Trooper Harrison completed the examination, he concluded that defendant was under the influence of cannabis and unable to drive a motor vehicle safely.
The municipal court judge admitted into evidence a September 18, 2008 laboratory report that confirmed that thirty grams of marijuana were contained in the small plastic bag retrieved by Trooper Mastrella from defendant's vehicle. The judge also introduced into evidence a September 25, 2008 positive urinalysis toxicology report. Defense counsel objected to the admissibility of the September 18 report.
Defendant did not testify but called as a witness his own drug recognition expert, Herbert H. Leckie. Mr. Leckie admitted that he was not a certified drug recognition expert. Mr. Leckie testified that defendant was impaired to operate a car, but could not say what caused the impairment. He also acknowledged that defendant's field sobriety test results could indicate that one smoked marijuana, and that defendant admitted that he smoked marijuana that night.
At the conclusion of the trial, the municipal judge found defendant guilty of driving while intoxicated, speeding, possession of a controlled dangerous substance in a motor vehicle, and possession of under fifty grams of marijuana. The judge found that defendant was under the influence of marijuana, and that Troopers Mastrella and Harrison testified credibly. The municipal judge imposed the ...