On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Docket No. 10-0110.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically November 9, 2012
Before Judges Fisher and Alvarez.
At the conclusion of a municipal court trial, and after a trial de novo in the Law Division, defendant was convicted of driving while under the influence, N.J.S.A. 39:4-50(a), his second such offense.
At trial, Police Officer Paul Ottavinia testified he stopped defendant's vehicle on Route 46 in Mount Olive on April 29, 2010, because the interior of defendant's vehicle was illuminated by what the officer suspected to be a cellphone. When asked for his credentials, defendant provided an invalid registration. And, when the officer asked for an insurance card, defendant replied that he thought he had already provided it and bumped his head into the partially open window when attempting to hand the card to the officer. The officer then explained to defendant why he stopped him and, during the discussion, noted that defendant's answers and hand movements were slow and his speech somewhat slurred. After being asked to exit the vehicle, defendant advised the officer he had recently begun taking a much higher dose of Concerta to combat his attention deficit hyperactivity disorder (ADHD).
Officer Ottavinia further testified that defendant was unsteady on his feet during the field sobriety test. Officer Joseph T. Abrusci, a certified drug recognition expert (DRE), participated in the testing at the site and later performed a DRE examination. The officers testified that defendant did not perform well during the field sobriety test and appeared to be under the influence.*fn1
Defendant testified on his own behalf, claiming his performance of the field sobriety test was impacted by his nervousness and poor coordination; he asserted that he had been taking Concerta since he was a child*fn2 and that it had no impact on his ability to drive. Defendant now argues that the results of the field sobriety test and the way he presented on the night in question were the product of ADHD and not any of the substances described in N.J.S.A. 39:4-50(a).
Defendant was convicted in municipal court of violating N.J.S.A. 39:4-50(a), which prohibits operation of a motor vehicle "while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug." Based on the evidence adduced in municipal court, and for the reasons set forth in a written opinion, the Law Division judge also found defendant guilty.
In appealing, defendant argues:
I. THE COURT BELOW ERRED IN FINDING THAT THE STATE PROVED BEYOND A REASONABLE DOUBT THAT THE SIGNS AND SYMPTOMS THAT LED THE OFFICERS TO CONCLUDE THAT THE DEFENDANT WAS UNDER THE INFLUENCE OF A DRUG THAT PRODUCED A NARCOTIC EFFECT WERE DUE TO THE MEDICATION CONCERTA, RATHER THAN THE DEFENDANT'S ADHD. AS SUCH, THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS "UNDER THE INFLUENCE" OF CONCERTA. THE JUDGMENT BELOW MUST BE REVERSED.
II. THE TESTIMONY PRESENTED BY THE STATE AT TRIAL WAS INSUFFICIENT TO ESTABLISH THAT CONCERTA CONSTITUTED A "NARCOTIC" DRUG WITHIN THE PLAIN MEANING OF THAT TERM, THAT CONCERTA HAD "A NARCOTIC EFFECT" ON DEFENDANT, OR THAT CONCERTA CONSTITUTED A "HABIT-PRODUCING DRUG." THE JUDGMENT BELOW MUST BE REVERSED.
We find no merit in these arguments, R. 2:11-3(e)(2), and affirm, adding only the following comments.
Defendant essentially argues that the State failed to prove he was under the influence of one of the substances described in N.J.S.A. 39:4-50(a). To be sure, because defendant was not under the influence of alcohol, the State was required to show, beyond a reasonable doubt, that defendant was under ...