On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 59-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011 -
Before Judges Carchman and Fisher.
Defendant Brielle L. Ferreira appeals from a judgment of conviction after her trial de novo for two motor vehicle violations: driving while intoxicated (DWI), N.J.S.A. 39:4-50; and failure to maintain a lane, N.J.S.A. 39:4-88(a). Defendant was sentenced as a third DWI offender to 180 days of imprisonment; referral to an Intoxicated Driver Resource Center (IDRC); a ten-year revocation of her driver's license; and fines, penalties and assessments totaling $1346.*fn1 We affirm.
These are the facts adduced at the trial in the municipal court and at the trial de novo in the Law Division. On February 11, 2005 at approximately 3:45 p.m., Officer Jason Siitonen of the Evesham Township Police Department was on patrol when he observed defendant's white Mitsubishi sedan swerve from the travel lane and cross over the white fog line that separates the travel lane from the shoulder of the road. The officer then observed the driver, whom he later identified as defendant, correct the vehicle and cross over the double yellow lines in the center of the road, thereby entering the lane of oncoming traffic.
Based upon these observations, Officer Siitonen stopped defendant's vehicle. As the officer approached defendant's car, he initially observed that her eyes were "bloodshot and watery." Upon speaking with defendant and requesting her credentials, Officer Siitonen noted that her speech was "slow and slurred." As defendant searched through numerous papers to locate her credentials, the officer noticed her hand movements were "slow" and she "fumbled" with the documents. Ultimately, defendant produced a plastic folder containing her AAA card instead of the documents he had requested. Officer Siitonen returned the plastic folder to defendant and asked her to produce the proper credentials. According to the officer, defendant had difficulty remembering what documents he had asked her for, but ultimately produced valid credentials.
Based upon these observations, the officer, who has more than seven years of law enforcement experience, requested that defendant step out of the vehicle. At that time, the officer also observed that defendant's eyelids were "extremely droopy," and she "appeared to be drooling out of her mouth as she spoke." As defendant continued speaking, Officer Siitonen noticed she was not able to speak in coherent sentences and was "rambling."
While Officer Siitonen did not smell alcohol on defendant's breath, he suspected she was under the influence of "something." Based upon this suspicion, the officer asked defendant if she had taken any prescription medication. Defendant stated "she was on prescription medications stemming from a prior car accident," and that she had taken "a hydrocodone pill" earlier in the day. Whereupon, defendant "showed [the officer] a pill bottle" that appeared to be a valid prescription.
After a backup unit arrived, Officer Siitonen began to conduct field sobriety tests to determine whether defendant was intoxicated. Again, the officer observed defendant's movements were "slow" and "exaggerated," and she appeared to be "staggering" as she walked. Defendant failed each of the four sobriety tests that the officer administered, failing one of those tests on two separate attempts. At that point, Officer Siitonen placed defendant under arrest.
In the patrol car on the way to the police station, the officer described defendant's behavior as erratic and "[a]ll over the place." According to the officer, she was "[c]rying" and "drooling" and "kept asking repeatedly why she was under arrest, [and] why [the officer] stopped her."
At the police station, defendant was asked to provide basic biographical information, including her residence, birth date, place of employment, and social security number. As Officer Siitonen described, defendant "couldn't complete a sentence" in response to these routine questions.
Subsequently, the officer asked defendant if she would be willing to provide a breath sample, and she consented. Officer Anthony Padulese, a ten-year member of the Evesham Police Department, was brought in to administer the breathalyzer and complete an Alcohol Influence Report (AIR).*fn2 As Padulese completed the report, Officer Siitonen remained present. Padulese also observed that defendant "display[ed] extremely slow speech, [was] unable to finish a complete sentence, . . . [and was] unable to keep the same idea through her sentences and answers." Padulese also noted defendant's eyes were "red and bloodshot." As the standardized AIR questions require, Padulese asked defendant if she was "taking [any] medicine." Defendant answered by stating she had consumed both "hydrocodone and Xanax" earlier in the day, having ingested the most recent dose around noon.
At the trial, Officer Sittonen testified to his observations of defendant on the day of the arrest. The officer described defendant's conduct, behavior, and the physical signs of intoxication he had observed from the time that he first stopped defendant's vehicle through the time he placed her under arrest.
In detail, Officer Sittonen related defendant's performance on the four field sobriety tests that he administered. The officer indicated that when he asked defendant to stand with her feet together and arms at her side, she was "swaying and losing her balance." When he next performed the horizontal vision gaze test (HGN), the officer stated that he observed a "nystagmus," which is an involuntary jerking of the eye, that was abnormal in light of defendant having reported she did not wear glasses or have a vision problem.
When the officer asked defendant to perform the "walk and turn test," and provided basic instructions for her to follow, she failed to comply with the instructions and failed the test on two separate attempts. When he attempted to explain the "one-leg[ged] stand test," defendant repeatedly interrupted him, was unable to follow his instructions, and "couldn't keep her foot [raised] off the ground."
In later testimony, Officers Sittonen and Padulese described defendant's abnormal conduct and the physical signs of intoxication they had observed after defendant was arrested and transported to the police station. During the completion of the AIR, defendant admitted she had taken "hydrocodone and Xanax" with the most recent dose occurring at noon.
The State then proffered Dr. John Brick, a biological psychologist specializing in "psychopharmacology," which he described is the study of the effects of alcohol and drugs upon the human brain. After the doctor detailed his training, education, and experience, the State offered Dr. Brick as an expert in the field of "pharmacology and behavioral and physiological [e]ffects of intoxication." Defense counsel stipulated to Dr. Brick's expertise "limited to those areas."
Dr. Brick noted that hydrocodone is a powerful opiate that "changes the brain to [alter] behavior" and that it is "similar to morphine in terms of its potency." He stated that Xanax, the brand name for alprazolam, is a benzodiazapine that is commonly used to treat anxiety disorders. According to Dr. Brick, both drugs carry a "high risk for abuse and dependence."
Regarding the effects of these drugs, Dr. Brick observed that hydrocodone impairs driving and benzodiasaphes produce "effects that have been shown to impair skills related to safe motor vehicle operation." He explained that both drugs "impair psychomotor behavior" and are "frequently" known to produce the behaviors that the officers observed in defendant on the day of her arrest, such as "trouble standing, . . . swaying . . . [and] slow [and] ...