On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-080.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided Before Judges Payne and Koblitz.
Defendant Patricia Driscoll appeals her second conviction of driving while intoxicated, N.J.S.A. 39:4-50. She was sentenced to thirty days of community service, forty-eight hours of Intoxicated Driver Resource Center (IDRC) classes, and her driving privileges were revoked for two years. Appropriate fees, fines and penalties were assessed. On appeal, defendant argues that the Law Division erred in finding her guilty on the basis that she could not prove her defense beyond a reasonable doubt.*fn1 After reviewing the argument in light of the applicable law, we are constrained to agree and reverse.
At trial in the municipal court, Detective Charles Zampino of the Fairfield Police Department testified to the following facts. At 12:24 a.m. on June 2, 2007, he observed defendant driving at a very slow rate of speed on Route 46. Defendant then exited Route 46, and in doing so, she drove over the solid line and onto the shoulder of the roadway. The car then made a slow, wide left turn, and the car's front tire hit the curb. Zampino said the car then drove through a red light, stopping suddenly to make a right turn. Zampino stopped the car and spoke to defendant. She informed him that she came from a club where she had been dancing with friends and was now lost.
Defendant appeared disoriented, her pupils were constricted, her speech was slow and slurred, and she kept licking her lips and sticking out her tongue. Zampino conducted road-side sobriety tests, noting that defendant swayed when walking. Zampino found no nystagmus (involuntary eye movements thought to be brought on by alcohol intoxication*fn2 ) after administering the horizontal gaze nystagmus test (HGN). Defendant told him that she suffered from Lyme disease and could not perform the "walk and turn" test. She could not stand on one foot while counting as instructed. She was unable to recite the alphabet beginning at the letter "K." After the "finger count" test was demonstrated by Zampino, defendant also failed two attempts at that field sobriety test. Defendant was arrested and taken to police headquarters.
Fairfield Police Officer Christopher Nicholas testified that defendant had a zero reading on the breathalyzer. He testified that he administered the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966). Defendant then indicated she had slept only two and one-half hours the previous night, had Lyme disease, and was under the care of a doctor who had prescribed Paxil and Fioricet with codeine. Defendant indicated she had most recently taken one Fioricet with codeine pill on the morning of June 1.
Nicholas testified that defendant was cooperative, polite and calm, but her coordination was poor, her face flushed and her speech slurred. She had watery eyes and droopy eyelids. However, he testified that her eyes were able to focus on stimuli and follow quickly. Nicholas testified that he again administered field sobriety tests, which defendant was unable to complete successfully. Nicholas said that he measured defendant's pupils as constricted in darkness and in room light, and they showed little to no reaction to a flashlight. Defendant's blood pressure and temperature were at the low-normal range. He also found no nystagmus after again administering the HGN. Nicholas, a certified drug recognition expert, testified that the combined results of all of the tests he administered indicated that defendant "was impaired and was unable to operate a motor vehicle safely due to the fact that she was under the influence of a narcotic."
Defendant had in her possession a small pill bottle with six blue-gray tablets. Her urine test revealed the presence of codeine and butalbital with no quantitative analysis. She stated that she was under the care of Dr. Nabil Yagzi, who prescribed the medication she took to treat headaches. She said her prescription for Fioricet with codeine, the blue-gray tablets, called for one pill every four hours as needed.
Defendant testified to the following facts. She was "fast dancing" with her friends at a club that night. She felt fine when leaving the club, but had little memory of what followed. She recalled being disoriented. She was diagnosed with Lyme disease in 1990 and never made a full recovery. Her symptoms include headaches, arthritis and joint pain, memory loss, disorientation, flu-like symptoms, difficulty sleeping, and trouble staying awake.
Dr. Yagzi, defendant's treating doctor and an expert in neurology, was unavailable to testify in municipal court as he was attending a funeral outside of the country. He was allowed to testify at the trial de novo in the Law Division. R. 3:23-8(a). Dr. Yagzi testified to the following facts. Defendant suffered from chronic intractable headaches, which upon occasion caused her to become disoriented and lose her balance. Beginning in 1998, he had prescribed Fioricet with codeine (also containing caffeine, acetaminophen and butalbital) every four to six hours as needed. A few years before he added Paxil, to be taken once a day at bedtime. Paxil may enhance the effects of both the codeine and butalbital contained in Fioricet with codeine.
Although the Physicians' Desk Reference*fn3 indicates that Fioricet with codeine may impair a patient's mental and/or physical abilities required for driving, Dr. Yagzi concluded that it would not affect defendant's driving if taken as prescribed because her brain had adapted to the medication regimen through long-term use. He said the codeine would be detectable in urine for up to forty-eight hours and the butalbital for up to seven days.
Dr. Yagzi believed all of defendant's symptoms at the time of the motor vehicle stop on June 2 were due to Lyme disease, fatigue and potential presyncope (which he said was a condition of near-fainting including symptoms of dizziness, disorientation, confusion, loss of balance and mild cognitive dysfunction). The blood pressure and temperature results were normal for defendant. Although defendant was successfully treated for Lyme disease, she still suffered from poor balance, lack of coordination and clumsiness, which worsened when she was fatigued or suffering from a headache.
Although initially deciding to let Dr. Yagzi testify in the proceedings in the Law Division so the court could "rule whether, in fact, he produce[d] a reasonable doubt or not with regard to the allegations alleged against defendant," the court stated on June 9, 2009, after hearing Dr. Yagzi's testimony, that the ...