On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-36-09-Y08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Koblitz and Haas.
Defendant Donald Eaton was convicted in the Greenwich Township Municipal Court of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. Following a trial de novo in the Law Division, he was again found guilty. On the DWI charge, defendant was sentenced, as a second offender, to thirty days of community service, two days in jail which could be served through participation in the Intoxicated Driver Resource Program, and suspension of his driving privileges and registration for two years. Defendant was also required to pay mandatory fines and penalties.*fn1
On appeal, defendant raises a number of arguments in support of his overall contention that he should have been acquitted of the charge. We find no merit in these contentions and affirm defendant's conviction.
On April 26, 2008, defendant appeared at the Hunterdon Medical Center emergency room complaining of stomach pain. At 11:30 p.m., he was provided with a "GI Cocktail," comprised of Maalox and other pain relief medications. Defendant was also given Pepcid for heartburn relief. An EKG was performed and some blood work was done. Defendant reported that he regularly took several prescribed medications.
Despite being offered the opportunity to remain, defendant chose to leave the hospital after he was discharged. At that time, he was given a sleeping medication, Ambien, and a pain medication, Percocet, to take after he arrived home.
At approximately 6:30 a.m. on August 27, 2008, New Jersey State Trooper Christopher Mulch responded to complaints regarding erratic driving by the driver of a black Corvette on Interstate-78. The driver was later identified as defendant. Upon arriving at the area in question, Mulch observed the Corvette pass him and shift erratically between lanes and onto the center median. Mulch recorded this incident on his vehicle's video recorder. The video was introduced in evidence at defendant's trial. After defendant failed to respond to Mulch's emergency lights, the officer activated his sirens. Defendant pulled the Corvette to the side of the road, parking partially on the shoulder of the highway and partially in the left lane of traffic.
Upon approaching defendant's vehicle, Mulch noted that defendant's eyes were watery and that he appeared disoriented. Defendant's hands were shaky and he had great difficulty in responding to the officer's inquiries. Mulch did not conduct any field sobriety tests at the time of the motor vehicle stop because of safety concerns relating to oncoming traffic and defendant's impaired condition. Mulch placed defendant under arrest and took him to the New Jersey State Police barracks.
At the barracks, a battery of tests was conducted, including the Horizontal Gaze Nystagmus (HGN) test,*fn2 the alphabet test, and a backwards counting test. Although an Alcotest showed that defendant did not have any alcohol in his system, Mulch requested the assistance of a Drug Recognition Expert (DRE) after learning that defendant had been recently treated and released from the Hunterdon Medical Center.
Trooper Eliecer Ayala, who had received special training in drug recognition, responded to the barracks. Ayala's training had included instruction on administering field sobriety tests, and on identifying and evaluating the effects of drugs on subjects. Ayala has been certified as a DRE by the International Association of Chiefs of Police since 2004. Ayala opined that, based on defendant's movements, which he described as sluggish, shaky and uncoordinated, and the results of the sobriety tests, defendant was likely under the influence of an analgesic and a central nervous system depressant, and could not drive safely in his current condition.
When tested, defendant's urine contained Phenobarbital, Fluoxetine,*fn3 Diphenhydramine, Lidocaine and Zolpidem.*fn4 The State's expert toxicologist testified that these drugs depress the central nervous system and can cause drowsiness, dizziness, disorientation, nervousness and confusion.
Dr. Richard Saferstein testified as an expert in toxicology and chemistry on behalf of defendant. Dr. Saferstein conceded that Phenobarbital, Fluoxetine and Zolpidem were depressants, but he nevertheless opined that defendant was not under the influence of any of these substances at the time of the traffic stop. However, he also agreed that the troopers, who had actually observed defendant after the motor ...