Marijuana
intoxication and police testimony addressed
State v. Justin Bealor (A-31-05)
RIVERA-SOTO, J., writing for a unanimous
Court.
This
appeal requires that the Court address whether lay opinion is sufficient to
prove the offense of driving while intoxicated when the intoxicating agent is
marijuana and not alcohol, or whether additional expert opinion is
required.
On
July 11, 2002, defendant Justin Bealor was driving in Sea Isle City, Cape May
County, when his erratic driving caught the attention of State Police Troopers
Michael Donahue and Jason Innella.
Donahue and Innella initiated a motor vehicle stop. The officers observed a twelve-pack of beer,
ripped open, on the back seat of the car, and upon approaching the vehicle
noted an odor of alcohol “emanating” from defendant as well as from the
vehicle. Defendant admitted to drinking
“a couple of beers” and the officers further observed, among other things, that
defendant was slow, that his clothes were “messy and muss,” and that he had an
“emotionless stare on his face” and slurred speech. For their safety, the officers patted
defendant down and uncovered “a multi-colored smoking pipe with marijuana
residue in it.” Defendant was arrested
and advised of his Miranda rights.
At police headquarters, defendant submitted to two breathalyzer tests
and provided a urine sample. While at
police headquarters, defendant became “agitated” and had to be physically
restrained.
At the
municipal court trial, the State presented the observations of the State
Troopers, along with the testimony of two forensic scientists employed by the
State police. The scientists testified
to the presence of marijuana metabolite – “a psychoactive ingredient in
marijuana” – in defendant’s urine, and the presence of burnt marijuana in the
glass smoking pipe. Defendant did not
proffer a defense. Instead, he argued
that “marijuana intoxication really cannot be proven without an expert [in
respect of] intoxication by drugs at the time of the event.” The municipal court rejected that argument,
noting that the State had presented evidence both of the fact of intoxication
(through the testimony of Donahue), and the cause of the intoxication (through
the testimony and opinions of the qualified forensic scientists). The municipal court found defendant guilty of
operating a motor vehicle while under the influence of marijuana, in violation
of N.J.S.A. 39:4-50.
On de novo appeal to the Law Division,
defendant argued that “[recognizing someone being under the influence of
marijuana versus some other narcotic drug or under [the influence of] alcohol
is something the lay person can’t do.”
The Law Division found that, under the circumstances, there was no need
for expert testimony as to the level of defendant’s intoxication. The Law
Division reimposed the municipal court’s sentence.
The
Appellate Division reversed. The
Appellate panel found that “[t]he State failed to present any evidence of the
quantity of marijuana metabolites in defendant’s urine, nor did the State
present any evidence linking defendant’s driving or post-arrest conduct with
marijuana intoxication.” Noting that
“[marijuana intoxication . . . is not a matter of common knowledge such that an
inference of intoxication may be drawn solely from a lay witness’s testimony
respecting defendant’s behavior[,]” the Appellate Division concluded that “a
per se rule cannot be applied to a [driving while intoxicated] charge involving
marijuana in the absence of any evidence as to the effect of marijuana on
defendant’s behavior or physical appearance.”
The
Supreme Court granted the State’s petition for certification.
HELD: Although evidentially competent lay observations of the
fact of intoxication are always admissible, lay opinion in respect of the cause
of intoxication other than from alcohol consumption is not admissible. However, competent lay observations of the
fact of intoxication, coupled with additional independent proofs tending to
demonstrate defendant’s consumption of narcotic, hallucinogenic or
habit-producing drugs as of the time of the defendant’s arrest, constitute
proofs sufficient to allow the fact-finder to conclude, without more, that the
defendant was intoxicated beyond a reasonable doubt and, thereby, to sustain a
conviction under N.J.S.A. 39:4-50.
1. Since
1924, because sobriety and intoxication are matters of common observation and
knowledge, New Jersey has permitted the use of lay opinion testimony to
establish alcohol intoxication. Founded
on that premise, lay opinion consistently has been admitted to prove that a defendant
was “operating] a motor vehicle while under the influence of intoxicating
liquor” in violation of N.J.S.A. 39:4-50, the driving while intoxicated
statute. This appeal requires that we
explore a related question: whether,
similar to alcohol intoxication, intoxication arising as a result of the
consumption of narcotic, hallucinogenic or habit-producing drugs also can be
proved by lay opinion, or whether additional proofs are required.
2. N.J.R.E.
701 sets forth the prerequisites for the admission of lay opinion testimony,
with the purpose of ensuring that lay opinion is based on adequate
foundation. Nothing in Rule 701
relieves “the obligation of a party to meet the requirements of a rule of law
that the fact be proved either by a preponderance of the evidence or by clear
and convincing evidence or beyond a reasonable doubt, as the case may be.” N.J.R.E. 101(b)(1). We have repeatedly made clear that, in motor
vehicle violation cases, the State’s burden of proof unquestionably is beyond a
reasonable doubt. Therefore, we must
examine whether the record in this case contains sufficient proofs to sustain
the State’s burden of proving that marijuana intoxication is now a matter of
common knowledge and observation. We
conclude that it does not. For that
reason, we decline the State’s invitation that we overrule the extant
proscription against lay opinion testimony in respect of marijuana
intoxication. The State did not tender
any proofs at any state of these proceedings to show that there is now a
general awareness of the indicia or symptoms of marijuana intoxication. To take the step the State invites us to
take, our adversary system requires more:
factual proofs presented to a fact-finder tempered by the fire of
confrontation, cross-examination and adverse proofs. We are, therefore, constrained from reaching
the threshold issue pressed by the State
3. Having
rejected the State’s invitation to place lay opinion testimony regarding
marijuana intoxication on the same footing as lay opinion testimony as to
alcohol intoxication, we must address whether, in the absence of lay opinion
testimony, the evidence tendered here was sufficient to prove that defendant
was under the influence of marijuana while he operated a motor vehicle. The driving while intoxicated statute
expresses the Legislature’s desire to prohibit driving while intoxicated;
whether the cause of intoxication is alcohol or narcotics, hallucinogens or
habit-forming drugs is largely irrelevant.
Expert proofs are not a necessary prerequisite for a conviction for
driving while under the influence of alcohol.
By the same token, the driving while intoxicated statute “does not
require that the particular narcotic[, hallucinogen or habit-producing drug] be
identified.” State v. Tamburro,
68 N.J. 414, 421 (1975). The
statute also does not define the quantum of narcotics, hallucinogens or
habit-producing drugs required in order to violate its prohibition. Instead, as with alcohol intoxication, the
issue is simple: was the defendant
“under the influence” of a narcotic, hallucinogen or habit-producing drug while
he operated a motor vehicle. The
aggregate of the State’s proofs was more than sufficient to permit the
fact-finder to conclude, beyond a reasonable doubt, that defendant violated the
driving while intoxicated statute. The
rule adopted by the Appellate Division panel – that the nexus between the facts
of intoxication and the cause of intoxication can only be proved by expert
opinion – impermissibly impinges on the traditional role of the fact-finder and
is explicitly disavowed. Thus, we adopt
the rationale employed by both the municipal court and the Law Division and
hold that additional expert opinion was not necessary in order to sustain
defendant’s conviction.
4. Expert
testimony remains the preferred method of proof of marijuana intoxication. We arrive at that conclusion in the knowledge
that it is not too difficult a burden for the State to offer an expert opinion
as to marijuana intoxication.
Prosecutors in municipal courts throughout the State routinely qualify
local and state police officers to testify as experts on the subject of
marijuana intoxication.
The
judgment of the Appellate Division is REVERSED,
defendant’s conviction is REINSTATED,
and the cause is REMANDED to the Law
Division for such additional proceedings as may be required consistent with
this opinion.
CHIEF JUSTICE PORITZ and JUSTICES
LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO’s
opinion.
SUPREME COURT OF NEW JERSEY
v.
Argued May 1, 2006 – Decided July 20,
2006
On certification to the Superior
Court, Appellate Division, whose opinion is
reported at 377 N.J. Super. 321 (2005).
JUSTICE
RIVERA-SOTO delivered the opinion of the Court.
N.J.S.A. 39:4-50 does not
prohibit solely the “operat[ion of] a motor vehicle while under the influence
of intoxicating liquor[.]” The driving
while intoxicated statute also prohibits the “operat[ion of] a motor vehicle
while under the influence of . . . narcotic, hallucinogenic or habit-producing
drug[s.]” Framed in the latter context,
this appeal requires that we address whether lay opinion is sufficient to prove
the offense of driving while intoxicated when the intoxicating agent is marijuana
and not alcohol, or whether additional expert opinion is required.
We hold that, although
evidentially competent lay observations of the fact of intoxication are always
admissible, lay opinion in respect of the cause of intoxication other than from
alcohol consumption is not admissible because, unlike alcohol intoxication,
“[n]o such general awareness exists as yet with regard to the signs and
symptoms of the condition described as being ‘high’ on marihuana.” State v. Smith, 58 N.J. 202,
213 (1971). However, we further hold
that competent lay observations of the fact of intoxication, coupled with additional
independent proofs tending to demonstrate defendant’s consumption of narcotic,
hallucinogenic or habit-producing drugs as of the time of the defendant’s
arrest, constitute proofs sufficient to allow the fact-finder to conclude,
without more, that the defendant was intoxicated beyond a reasonable doubt and,
thereby, to sustain a conviction under N.J.S.A. 39:4-50.
I.
The transcripts of
the trial held in the Municipal Court disclose that, during the early morning
hours of July 11, 2002, defendant Justin Bealor was driving in Sea Isle City,
Cape May County, when his erratic driving caught the attention of State Police
Troopers Michael Donahue and Jason Innella. According to Donahue, he and Innella were
traveling behind defendant’s car and observed it “weaving across the double
lines, several times.” Defendant then
turned east onto JFK Boulevard, a divided road, but was traveling in the
westbound lanes, into what would have been on-coming traffic. Donahue and Innella turned on to the
eastbound lanes of JFK Boulevard and followed defendant “until there was a
break in the median.” At that point,
Donahue and Innella crossed over into the westbound lanes and defendant, having
noticed he was being followed by the police, pulled his car into a parking
lot. Donahue and Innella pulled up
behind him and activated their signal lights “to initiate a motor vehicle
stop.”
Donahue described
the events that followed:
At that point, Trooper [Innella]
approached the driver’s side of the vehicle.
I approached the passenger side.
We both observed that there was a twelve pack of [beer] cans in the back
of the car. They were obviously
fresh. We could see the condensation on
the twelve -- on the cans. The twelve
pack was actually ripped open.
. . . .
[A]s we approached the car,
[defendant] opened up the driver door and at that time he stated, window
doesn’t open, sorry. Immediately,
Trooper [Innella], he [signaled] to me that [defendant] had been drinking. You know, as you got close to [defendant] you
could smell the alcohol was emanating from himself. It was emanating from the inside of the
vehicle. You could also smell burnt
marijuana. His eyes were bloodshot and
glassy. His eyelids drooped down. His face was pale and flushed. He identified himself as Justin Bealor, and
he fumbled around in the center console and his glovebox searching for all his
credentials.
In response to Innella’s question whether
he had been drinking, defendant admitted that he “only drank a couple beers.” As he exited the car at Innella’s request, defendant
“just seemed a little bit lost” and “he spoke very slow and very slurred.”
After defendant
was out of the car, Donahue and Innella were able to observe defendant and his
appearance fully. According to Donahue,
defendant’s “clothes were all messy and muss -- it actually looked like he had
been sleeping and woke up. His person
was very mussed and muffled.” Donohue
noted that “[y]ou could smell the odor of alcohol and marijuana on him. Again, his eyes were droopy. His knees sagged a little bit as he
stood. He had an emotionless stare on
his face.”
Donahue explained
that, after defendant recited the alphabet as part of the field sobriety test,
“for our safety and [defendant]’s safety, Trooper [Innella] conducted a pat
down for weapons” and discovered, in defendant’s rear pocket, “a multi-colored
smoking pipe with marijuana residue in it.”
Upon the discovery of the pipe, defendant was arrested and advised of
his Miranda
rights. He was then transported to the
State Police Barracks in Woodbine, where defendant again was advised of his Miranda
rights, he signed a card indicating that those rights had been read to him, and
he agreed to submit to chemical sobriety tests.
Defendant then
submitted to two breathalyzer tests.
Once he did so, his demeanor changed.
Donahue testified that “[a]fter the breath tests he just became more and
more agitated” and that defendant started to use profanity against
Donahue. While defendant was providing a
urine sample at Donahue’s request, “[h]e became even more agitated” to the
point where Donahue “had to actually physically restrain him and push him up against
the wall and tell him to calm down.”
Defendant, while providing the urine sample, continued his stream of
invectives addressed to Donahue, to which defendant added profane gestures.
After securing
defendant’s urine sample, Donahue returned defendant to the bench in the
processing room, where defendant was secured while Donahue and Innella sought
to complete their paperwork. Donahue’s
description of defendant’s demeanor during that period is telling:
Throughout the rest of the time
that he was there, he just -- he created a general disturbance in the
station. He interrupted troopers as they
tried to walk past him. He continually
interrupted us while we were trying to finish our paperwork, asking when he
would be taken home. Despite the fact
that we explained to him several times that we’re trying to finish processing
him as fast as possible. We also tried
several times to contact someone at home [to] pick him up at the station, but
he couldn’t provide us with anyone with a phone number. He just stated that his brother was at home
in Strathmere, but they didn’t have a phone for him to call him on. So myself and [Innella] transported him to a
residence in Strathmere. While
transporting him back, he lectured myself and [Innella] on the fact that police
officers are not trustworthy. That we
abuse our power. And then once we got --
once we actually came to the residence that we were dropping him off at, we
knocked on the door and made contact with his brother, Kevin Bealor. While we were explaining the potential
liability warning to
[defendant]’s brother, [defendant] was in the back seat of the troop car. He was banging on the window and just yelling
for us to let him out. [Defendant]’s
brother then signed the potential liability warning and [defendant] was
released into his custody and they both went inside the residence.
Donahue explained that defendant’s vehicle
“was towed from the scene, reference John’s Law[.]” Donahue also established the chain of custody
in respect of the “multi-colored smoking pipe” seized from defendant at the
time of his arrest, which was later referred to as a “glass pipe,” as well as
that of the urine sample provided by defendant at the State Police Barracks.
The first
questions asked of Donahue on cross-examination fairly captured his
observations of defendant’s state:
Q. Is
it fair to say that [defendant] was a royal pain in the neck for you and the
other officers that night?
A. It’s fair to
say that he was intoxicated, not himself.
Q. All
right. Okay. That’s your conclusion?
A. Yes, sir.
Addressing defendant’s demeanor, the
cross-examination underscored Donahue’s direct testimony that defendant was not
cooperative and that his speech, while understandable, was slurred.
The State also
presented the testimony of Michael Kennedy and Lynn Van Camp, two forensic
scientists employed by the State Police.
Kennedy tested the urine sample defendant provided and concluded that
“the two tests that I did confirm that there was marijuana metabolite present
in the urine.” Kennedy explained that
marijuana metabolite is “a psychoactive ingredient in marijuana, what causes
the intoxication is THC and you don’t actually see that in the marijuana. We look for the metabolite of that compound
and the metabolite that I found was the THC metabolite, and it’s THCC . . . the
chemical name for the compound.” Van
Camp tested the glass pipe retrieved from defendant when he was arrested and
concluded that “[t]he burnt vegetation found in the glass smoking pipe was, in
fact, marijuana[.]”
Save for the
cross-examination of the State’s witnesses, defendant did not proffer a
defense. Instead, defendant argued that “marijuana
intoxication really cannot be proven without an expert [in respect of]
intoxication by drugs at the time of the event.” The municipal court rejected that argument,
observing that defendant’s urine sample taken at the State Police Barracks
showed the presence of marijuana metabolite and “[t]here is no requirement that
I’m aware of, unless you can show me otherwise, that the State has to show how
much marijuana was in someone’s system to be considered under the
influence.” Distinguishing this case
from State v. Tiernan, 123 N.J. Super. 322 (Law Div. 1973), overruled
on other grounds by State v. Tamburro, 68 N.J. 414, 421 (1975),
the municipal court noted that, in this case, the State had presented evidence
both of the fact of intoxication (through the testimony of Donahue), and the
cause of the intoxication (through the testimony and opinions of the qualified
forensic scientists).
As a result, the
municipal court found defendant guilty of operating a motor vehicle while under
the influence of marijuana, in violation of N.J.S.A. 39:4-50,
and sentenced defendant to the minimum penalties permitted, which included a
six-month loss of driving privileges, fines, court costs, penalties and
surcharges.
On a de novo appeal to the Law Division, defendant
argued that “[t]here was no indication that [Donahue] has any special training
relative to drugs, narcotics” and that, as a result, it would be “a leap of
faith” to conclude that “having some substance in your urine [means] being
under the influence of it.” Defendant’s
“primary argument [was] that based on the lack of expert testimony here, not
the expert testimony that said he had the [marijuana] metabolites [in his
system] but anything about the effect of that metabolite on the individual,
there cannot be a finding of guilt.”
Defendant argued that “[r]ecognizing someone being under the influence
of marijuana versus some other narcotic drug or under [the influence of]
alcohol is something the lay person can’t do.”
Based on defendant’s
presentation on appeal, the Law Division concluded that “[t]he real issue . . .
raised is the necessity of an expert to testify as to the defendant’s level of
intoxication.” Addressing that issue
squarely, the Law Division found that
under these circumstances there is no necessity for an
expert. Had it been merely the presence
of metabolites, yes, there would have been absolutely a need for someone to interpret
the test results and provide the Court with essentially circumstantial evidence
of intoxication. But that was not
necessary here because in addition to the urine screen you had the improper
driving that was more than just say a slight crossing over the line. . . . The smell of marijuana in the car the smell
of marijuana on the person, the smell of marijuana on the marijuana pipe. The appearance of the defendant. His conduct while in the station. . . . Because of all of the circumstances that were
present I find that there was in this case no necessity for expert
testimony. I find that the State
presented sufficient proofs to meet a beyond a reasonable doubt standard that
the defendant was operating under the influence of marijuana on the night in
question.
The Law Division reimposed the municipal
court’s sentence.
The Appellate
Division reversed. State v. Bealor,
377 N.J. Super. 321 (App. Div. 2005).
According to the panel, “[t]he State failed to present any evidence of
the quantity of marijuana metabolites in defendant’s urine, nor did the State
present any evidence linking defendant’s driving or post-arrest conduct with
marijuana intoxication.” Id. at
327. Noting that “[m]arijuana
intoxication . . . is not a matter of common knowledge such that an inference
of intoxication may be drawn solely from a lay witness’s testimony respecting
defendant’s behavior[,]” Id. at 329 (citing State v. Smith, 58 N.J.
202, 213 (1971)), the Appellate Division concluded that “a per se rule cannot
be applied to a [driving while intoxicated] charge involving marijuana in the
absence of any evidence as to the effect of marijuana on defendant’s behavior
or physical appearance.” Id. at
330 (footnote omitted). Based on that
conclusion, the panel held that it had “no evidence . . . from which to infer
that defendant was under the influence of marijuana while he was driving.” Id.
at 331. The Appellate Division explained
that
if the State had produced expert testimony -- or even lay
testimony from the trooper based upon his training, knowledge and experience --
respecting the effects of marijuana intoxication on defendant’s behavior,
physical appearance and condition, it would have met its burden of proving
beyond a reasonable doubt that defendant was driving under the influence of
marijuana. It did not, and we are,
therefore, constrained to reverse the conviction.
[Ibid.]
We granted the
State’s petition for certification, State v. Bealor, 185 N.J. 265
(2005), and, for the reasons that follow, we reverse the judgment of the
Appellate Division, and reinstate defendant’s conviction for driving under the
influence of marijuana.
II.
The State argues
two principal points. First, the State
argues that marijuana intoxication, akin to alcohol intoxication, is “a
sufficiently common condition so as to properly be the subject of lay witness
testimony.” Translated into the language
of N.J.R.E. 701, the State’s claim is that lay opinion testimony in
respect of marijuana intoxication is admissible because “it (a) is rationally based
on the perception of the witness and (b) will assist in understanding the
witness’[s] testimony or in determining a fact in issue.” Next, the State argues that, because there is
no generally accepted scientific standard by which to measure marijuana
intoxication, the Appellate Division’s decision requires proofs that are
impossible to proffer.
Defendant
categorically rejects the State’s claim that marijuana intoxication is a proper
subject for lay opinion testimony
and asserts that it must be the subject of proper expert opinion
testimony. Defendant notes that, under
the Appellate Division’s decision, the State had the opportunity to satisfy its
burden of proof simply by qualifying Donahue, by virtue of his training and
experience, as an expert, and that the State failed to do so. According to defendant, because “[n]o expert
testimony was presented as to the effects of marijuana, nor was any testimony
provided as to the amount of marijuana metabolite found, nor any indication of
how long such substance would remain in the urine after marijuana was consumed
or entered the bodily system through second-hand smoke[,]” this “case
represents a simple failure of proof[.]”
III.
Since 1924,
because sobriety and intoxication are matters of common observation and
knowledge, New Jersey has permitted the use of lay opinion testimony to
establish alcohol intoxication. Searles
v. Pub. Serv. Ry. Co., 100 N.J.L. 222, 223 (Sup. Ct. 1924). Founded on that premise, lay opinion
consistently has been admitted to prove that a defendant was “operat[ing] a
motor vehicle while under the influence of intoxicating liquor” in violation of
N.J.S.A. 39:4-50, the driving while intoxicated statute. See, e.g., State v. Cryan, 363 N.J.
Super. 442, 454-56 (App. Div. 2003) (holding that observations of police
officers and paramedic, together with defendant’s statements, were sufficient
to prove alcohol intoxication even in absence of expert proofs); State v.
Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960) (“[T]here is . .
. no persuasive reason to hold that a state of [alcohol] intoxication of the
degree contemplated by N.J.S.A. 39:4-50 cannot factually be established
by lay evidence. [T]he average witness
of ordinary intelligence, although lacking special skill, knowledge and experience
but who has had the opportunity of observation, may testify whether a certain
person was sober or intoxicated.”); State v. Pichadou, 34 N.J. Super.
177, 180 (App. Div. 1955) (holding that in prosecution for driving while
intoxicated, “[i]t is not to be doubted that the average witness of ordinary
intelligence, although lacking special skill, knowledge and experience but who
has had the opportunity of observation, may testify whether a certain person
was sober or intoxicated. Neither our
statutory law nor any procedural rule requires the testimony of medical experts
in the prosecution of offenses of this nature.”).
This appeal
requires that we explore a related question:
whether, similar to alcohol intoxication, intoxication arising as a
result of the consumption of narcotic, hallucinogenic or habit-producing drugs
also can be proved by lay opinion, or whether additional proofs are required.
A.
N.J.R.E. 701 sets forth
the prerequisites for the admission of lay opinion testimony; the Rule provides
that
[i]f a witness is not testifying as an expert, the
witness’[s] testimony in the form of opinions or inferences may be admitted if
it (a) is rationally based on the perception of the witness and (b) will assist
in understanding the witness’[s] testimony or in determining a fact in issue.”
We have made clear that “[t]he purpose of N.J.R.E.
701 is to ensure that lay opinion is based on an adequate foundation.” Neno v. Clinton, 167 N.J. 573,
585 (2001). Thus, we have held in a
variety of circumstances, see id. at 582 (collecting cases), that
“[a] lay witness may give an opinion on matters of common knowledge and
observation.” State v. Johnson,
120 N.J. 263, 294 (1990) (citing State v. LaBrutto, 114 N.J.
187, 197 (1989)).
However, nothing
in Rule 701 relieves “the obligation of a party to meet the requirements
of a rule of law that the fact be proved either by a preponderance of the
evidence or by clear and convincing evidence or beyond a reasonable doubt, as
the case may be.” N.J.R.E.
101(b)(1). We have repeatedly made clear
that, in motor vehicle violation cases, the State’s burden of proof
unquestionably is beyond a reasonable doubt.
State v. Fearon, 56 N.J. 61, 62 (1970) (per curiam);
State v. Cummings, 184 N.J. 84, 98-99 (2005) (extending beyond a
reasonable doubt standard of proof to prosecutions under the Refusal Statute, N.J.S.A.
39:4-50.4a). Therefore, we must examine
whether the record in this case contains sufficient proofs to sustain the
State’s burden of proving that marijuana intoxication is now a matter of common
knowledge and observation. We conclude
that it does not. For that reason, we
decline the State’s invitation that we overrule the extant proscription against
lay opinion testimony in respect of marijuana intoxication.
In State v.
Smith, 58 N.J. 202, 213 (1971), we explained that “[a]n ordinary
citizen is qualified to advance an opinion in a court proceeding that a person
was intoxicated because of consumption of alcohol. The symptoms of that condition have become
such common knowledge that the testimony is admissible.” At that time, we further held that “[n]o such
general awareness exists as yet with regard to the signs and symptoms of the
condition described as being ‘high’ on marihuana.” Ibid.
Although much has changed in the intervening years since our decision in
State v. Smith, the passage of time alone does not relieve a party of
its burdens of proof and persuasion. In
this case, the State had the burden of creating a proper record from which a
fair determination could be made that the symptoms of marijuana intoxication
“have become such common knowledge that [lay opinion] testimony [that a person
was intoxicated because of the consumption of marijuana] is admissible.”
The factual record
before us consists of the trial testimony of the police officer who arrested
defendant and the two forensic scientists who tested defendant’s urine and the
glass pipe seized from defendant. The State
did not tender any proofs at any stage of these proceedings to show that there
is now a general awareness of the indicia or symptoms of marijuana
intoxication. It was not until it sought
certification before this Court that the State referenced any sources for the
proposition it now advances, and then only as “other sources cited” in support
of its legal argument. However, to take
the step the State invites us to take, our adversary system requires more: factual proofs presented to a fact-finder tempered
by the fire of confrontation, cross-examination and adverse proofs. We are, therefore, constrained from reaching
the threshold issue pressed by the State.
B.
Having rejected
the State’s invitation to place lay opinion testimony regarding marijuana
intoxication on the same footing as lay opinion testimony as to alcohol intoxication,
we must address whether, in the absence of lay opinion testimony, the evidence
tendered here was sufficient to prove that defendant was under the influence of
marijuana while he operated a motor vehicle.
Relying on the aggregate of factual observations of defendant’s demeanor
and physical appearance together with expert proofs that confirmed the presence
of a “narcotic, hallucinogenic or habit-producing drug” in defendant’s system
at the time of his arrest, the municipal court and the Law Division separately
concluded that defendant operated his motor vehicle while he was under the
influence of marijuana. The Appellate
Division concluded that those proofs were insufficient because the State had
failed to prove, through expert opinion, that “defendant was under the influence
of marijuana while he was driving.” State v. Bealor, 377 N.J. Super.
321, 331 (App. Div. 2005). We disagree.
The driving while
intoxicated statute expresses the Legislature’s desire to prohibit driving
while intoxicated; whether the cause of intoxication is alcohol or narcotics,
hallucinogens or habit-forming drugs is largely irrelevant. In respect of alcohol, N.J.S.A.
39:4-50 prohibits generally the “operat[ion of] a motor vehicle while under the
influence of intoxicating liquor” and specifically presumes a violation
whenever a person “operates a motor vehicle with a blood alcohol concentration
of 0.08% or more by weight of alcohol in the defendant’s blood[.]” Expert proofs are not a necessary
prerequisite for a conviction for driving while under the influence of
alcohol. Thus, for example, even in the
absence of expert proofs of a defendant’s blood alcohol concentration, a
conviction for driving while under the influence of alcohol will be sustained
on proofs of the fact of intoxication -- a defendant’s demeanor and physical
appearance -- coupled with proofs as to the cause of intoxication -- i.e.,
the smell of alcohol, an admission of the consumption of alcohol, or a lay
opinion of alcohol intoxication. See
State v. Cryan, 363 N.J. Super. 442, 454-55 (App. Div. 2003)
(sustaining conviction for driving while intoxicated based on proofs of
defendant’s bloodshot eyes, hostility and strong odor of alcohol); State v.
Cleverly, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining conviction
based on defendant’s “driving without his headlights on” and police officer’s
observations of defendant’s “strong odor of alcohol on defendant’s breath[,]”
“swaying as he walked[,]” inability to perform physical coordination test,
slurred speech, and combativeness); State v. Oliveri, 336 N.J. Super.
244, 251-52 (App. Div. 2001) (sustaining conviction on “alternative basis” of
proofs that “defendant’s eyes were watery and his speech slow and slurred[;]”
defendant’s inability to follow commands, defendant’s admission of alcohol
consumption earlier that day, defendant’s staggering when walking, and
defendant’s failure to complete successfully various physical coordination
tests); State v. Bryant, 328 N.J. Super. 379, 383 (App. Div.
2000) (holding that “the prosecutor could have proceeded on the driving under
the influence charge by utilizing evidence other than the breathalyzer
results.”).
By the same token,
the driving while intoxicated statute “does not require that the particular
narcotic[, hallucinogen or habit-producing drug] be identified.” State v. Tamburro, 68 N.J. 414,
421 (1975). The statute also does not
define the quantum of narcotics, hallucinogens or habit-producing drugs
required in order to violate its prohibition.
Instead, as with alcohol intoxication, the issue is simple: was the defendant “under the influence” of a
narcotic, hallucinogen or habit-producing drug while he operated a motor
vehicle.
We have described
generally the term “under the influence” as “a substantial deterioration or
diminution of the mental faculties or physical capabilities of a person whether
it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing
drugs.” Ibid. We also have explained that the term “under
the influence” means “a condition which so affects the judgment or control of a
motor vehicle operator as to make it improper for him to drive on the
highway.” Ibid. (citing State
v. Johnson, 42 N.J. 146, 165 (1964).
In the specific context of narcotic, hallucinogenic or habit-producing
drug intoxication, we have held that a driver is “under the influence of a
narcotic drug . . . if the drug produced a narcotic effect ‘so altering his or
her normal physical coordination and mental faculties as to render such person
a danger to himself as well as to other persons on the highway.’” Ibid. (quoting State v. DiCarlo,
67 N.J. 321, 328 (1975). The
question then is whether the proofs adduced in this case are sufficient to
establish beyond a reasonable doubt that, at the time of his arrest, defendant
suffered from “a substantial deterioration or diminution of the mental
faculties or physical capabilities[,]” or was in a drug-induced state that “so
affect[ed his] judgment or control . . . as to make it improper for him to
drive on the highway[,]” or whether defendant was under the effect of a drug
that “so alter[ed] his . . . normal physical coordination and mental faculties
as to render [defendant] a danger to himself as well as to other persons on the
highway.”
Under any of those
standards, the State proved beyond a reasonable doubt that defendant
“operate[d] a motor vehicle while under the influence of . . . narcotic,
hallucinogenic or habit-producing drug[s]” in violation of N.J.S.A.
39:4-50. Even if limited solely to the
time of his arrest, the fact of defendant’s intoxication was amply proved by
Donahue’s fact testimony in respect of defendant’s erratic and dangerous
driving, his slurred and slow speech, his “bloodshot and glassy” eyes, his
droopy eyelids, his “pale and flushed” face, his “fumbl[ing] around the center
console and his glovebox searching for all his credentials,” the smell of burnt
marijuana on defendant, his sagging knees and the “emotionless stare on his
face.” Also, on cross-examination,
Donahue testified without objection that defendant was intoxicated at the time
of his arrest. Finally, the State
incontrovertibly proved, through qualified experts, the presence of marijuana
in defendant’s blood stream at the time of the arrest and its likely source.
The aggregate of
those proofs was more than sufficient to permit the fact-finder to conclude,
beyond a reasonable doubt, that defendant violated the driving while
intoxicated statute. As in the context
of driving while under the influence of alcohol cases, we reject the Appellate
Division’s restriction on the logical and inferential ability of the
fact-finder to connect the objective facts of intoxication with the proven
presence of a cause of intoxication in order to conclude that defendant drove
while intoxicated. We also reject the
notion that a conviction for driving under the influence of a narcotic,
hallucinogen or habit-producing drug must be based exclusively on proofs
of “the subject’s conduct, physical and mental condition and the symptoms
displayed” together with “a qualified expert . . . determin[ing] that he or she
is ‘under the influence’ of a narcotic.”
State v. Tamburro, 68 N.J. 414, 421 (1975). On the contrary, we acknowledge that
[t]he thrust of the Motor Vehicle Act is safety on the
highway. The particular section is
addressed to the evil of operating a motor vehicle while one’s physical
coordination or mental faculties are substantially diminished by “intoxicating
liquor, narcotic, hallucinogenic or habit-producing drug.” Competency to operate a motor vehicle safely is
the critical question.
[Id. at 422.]
The rule adopted by
the panel -- that the nexus between the facts of intoxication and the cause of
intoxication can only be proved by expert opinion -- impermissibly impinges on
the traditional role of the fact-finder and is explicitly disavowed. See N.J.R.E. 702 (allowing
expert opinion only “[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact
in issue[.]”). In these circumstances,
determining whether defendant was under the influence of marijuana was not
“beyond the ken of the average [finder of fact.]” DeHanes v. Rothman, 158 N.J. 90,
100 (1999) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)). Thus, we adopt the rationale employed by both
the municipal court and the Law Division and hold that additional expert opinion
was not necessary in order to sustain defendant’s conviction for “operat[ing] a
motor vehicle while under the influence of . . . [a] narcotic, hallucinogenic
or habit-producing drug” in violation of N.J.S.A. 39:4-50. See, e.g., City of Wichita v. Hull,
11 Kan. App. 2d 441, 447, 724 P.2d 699, 703 (Kan. App. 1986) (holding
that circumstantial evidence “was sufficient to lead any reasonable person to
conclude that defendant’s taking a sleeping pill resulted in intoxication which
impaired his ability to drive.”); Griggs v. State, 167 Ga. App.
581, 584, 307 S.E.2d 75, 78 (Ga. App. 1983) (holding that aggregate of
police officer’s observations of defendant’s demeanor and physical appearance,
coupled with chemical tests indicating that defendant had been using marijuana
“was sufficient for a rational trier of fact . . . to reasonably have found
that defendant was guilty beyond a reasonable doubt of the offense[] of driving
under the influence of marijuana. . . .”).
C.
That said, expert
testimony remains the preferred method of proof of marijuana intoxication. We arrive at that conclusion in the knowledge
that it is not too difficult a burden for the State to offer an expert opinion
as to marijuana intoxication.
Prosecutors in municipal courts throughout the State routinely qualify
local and state police officers to testify as experts on the subject of
marijuana intoxication. Expert testimony
only requires that a witness be qualified “by knowledge, skill, experience,
training, or education.” N.J.R.E.
702; see also State v. Moore, 122 N.J. 420, 458-59 (1991)
(noting that “an expert must ‘be suitably qualified and possessed of sufficient
specialized knowledge to be able to express [an expert opinion] and to explain
the basis of that opinion’” (alteration in original) (quoting State v. Odom,
116 N.J. 65, 71 (1989))). In view
of their training, police officers in this State are eligible to qualify as
experts on marijuana intoxication under N.J.R.E. 702. We note that, before they are commissioned,
police officers must “successfully complet[e] the Basic Course for Police
Officers” authorized by the Police Training Commission. Div. of Criminal Justice Police Training
Comm’n, Basic Course for Police Officers Trainee Manual iii (Jan. 1,
2006), available at http://www.state.nj.us/lps/dcj/njptc/pdf/trainee_manual/bcpo-trainee-cover-012006.pdf;
see also N.J.S.A. 52:17B-68; N.J.A.C. 13:1-5.1. As part of their required course of study,
police officers must be trained in detecting drug-induced intoxication. See N.J.A.C. 13:1-6.1
(authorizing Police Training Commission to establish curriculum for approved
and authorized schools); Div. of Criminal Justice Police Training Comm’n, Basic
Course for Police Officers Trainee Manual: Performance Objectives 3-61 to
3-65 (Jan. 1, 2006), available at http://www.state.nj.us/lps/dcj/njptc/pdf/trainee_manual/bcpo_master_2004_final.pdf
(detailing curriculum requiring police trainees to know “the common non-technical
names, slang names, typical packaging and symptoms of use” of various drugs,
including marijuana); see also Div. of Criminal Justice Police Training
Comm’n, Agency Training Responsibilities Manual § 2, at 69-79 (July 1,
2002), available at http://www.state.nj.us/lps/dcj/njptc/manuals/bcpo_sleo2.pdf
(detailing symptoms for alcohol and specific drug intoxication in describing
appropriate handling of impaired prisoners).
IV.
The judgment of
the Appellate Division is reversed, defendant’s conviction is reinstated, and
the cause is remanded to the Law Division for such additional proceedings as
may be required consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI,
ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO’s opinion.
