Expert needed in dwi under influence of
methadone STATE v. TAMBURRO
68 N.J. 414 (1975)
STATE OF NEW
JERSEY, PLAINTIFF-RESPONDENT, v. RUSSELL J. TAMBURRO, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Decided October 21,
1975.
Mr. James V. Tamburro argued the cause
for defendant-appellant.
Mr. Dante P. Mongiardo, Assistant
Prosecutor, argued the cause for plaintiff-respondent (Mr. Joseph D.J. Gourley,
Passaic County Prosecutor, attorney).
Mr. Julian Wilsey, Deputy Attorney
General, argued the cause for amicus curiae the State of New Jersey (Mr.
William F. Hyland, Attorney General, attorney).
Mr. Eric A. Summerville argued the cause
for amicus curiae Patrick House Legal Clinic.
The opinion of the Court was delivered
by SULLIVAN, J.
Defendant Russell J. Tamburro was found
guilty of operating a motor vehicle while under the influence of a narcotic, a
violation of N.J.S.A. 39:4-50(a). He was enrolled in a methadone
maintenance program at the time and admitted to having ingested a prescribed
dose of
[68 N.J. 417]
methadone the morning of his arrest.1 The arrest took place on July 31, 1972 at
approximately 10:00 P.M.
Defendant contends that the evidence was
insufficient to support his conviction and, if valid, adversely affects all
methadone programs by subjecting participants therein to charges of violating N.J.S.A.
39:4-50. We find no merit or validity in any of defendant's contentions and
affirm the judgment of the Appellate Division which upheld the finding of
guilt.
On the evening in question a Clifton
police officer in an unmarked patrol car observed defendant who was operating a
motor vehicle and was attempting to pull out onto Route 46, a four-lane
highway. Despite wide gaps in traffic defendant did not readily avail himself
of opportunities to enter upon the highway, and when he did so, made an
extremely wide right-hand turn causing part of his car to cross over into the
fast lane of eastbound traffic. Defendant proceeded easterly along Route 46 and
then made another extremely wide right-hand turn into a side street, coming
"to the extreme left hand side of the street." At this point the
officer overtook defendant's vehicle and stopped it.
When defendant was asked for his license
and registration he fumbled excessively with his wallet. Defendant was asked to
get out of the car and, when he did so, the officer noticed that defendant's
eyes were bloodshot and glazed with pinpointed pupils. As defendant stood
there, he swayed slightly, appeared uncoordinated and his speech periodically became
slurred. He appeared tired, sluggish and drowsy. He denied that he had been
drinking. There was no odor of an alcoholic beverage on his breath, nor any
indication of physical injury.
The officer, who had undergone special
training and education in the drug detection and drug abuse field and who
[68 N.J. 418]
was then assigned to the Clifton Drug
and Abuse Squad, said to defendant that he appeared to be under the influence
of drugs, whereupon defendant stated that he had taken 120 miligrams of
methadone in a methadone maintenance program earlier that day.
The officer was of the opinion that
defendant could not operate a motor vehicle competently and had not been
operating one competently. He placed defendant under arrest and charged him
with a violation of N.J.S.A. 39:4-50.
Defendant was taken to police
headquarters in Clifton where an eye test and walking test were administered.
The arrest report noted defendant's pale face, bloodshot eyes with pinpointed
pupils, changing moods from hostility to passiveness, drowsiness and a scabbed
needle mark on his right arm not of recent origin. No blood or urine tests were
given.
Defendant was tried in the Clifton
Municipal Court on a charge of operating a motor vehicle while under the
influence of a narcotic. At the trial, the arresting officer testified to the
foregoing matters and expressed an opinion based on his expertise in the drug
field that at the time he arrested defendant, defendant's faculties were
impaired, that defendant could not operate a motor vehicle properly and that he
was under the influence of narcotics.
The State also presented testimony from
Dr. Robert W. Baird, a medical doctor, who had an extensive background in
narcotics and drug control. The trial court found him to be eminently qualified
in this field.
Dr. Baird, in answer to a hypothetical
question which described defendant's physical condition at the time of his
arrest, including all of the symptoms testified to by the officer and the
absence of any odor of alcohol or indicia of any physical injury, expressed the
opinion that such person had recently, within several hours, ingested an opiate
or a narcotic which had opiate-like qualities. He said that these symptoms
could not have been produced by anything other than the ingestion of a narcotic
drug and that a person
[68 N.J. 419]
with such symptoms would be under the
influence of a narcotic drug.
He described methadone as a synthetic
narcotic having addictive properties and opiate-like qualities. It is widely
used in methadone maintenance programs, the object of which is to block off the
desire for heroin. In the beginning a person is given small doses of methadone
which are gradually increased in amount as the system builds up a tolerance.
The dosage is levelled off at a plateau determined by the physician and
thereafter the person is maintained on a regular daily dosage. In the early
stage of the program the individual is rather sleepy and unresponsive because
of the tranquilizing effect.2 However, as a tolerance is built-up, the effects on the person are
diminished but would still remain to some degree and, depending on the
individual could affect driving ability.
Defendant testified as a witness and
denied that his operation of the motor vehicle, his appearance and symptoms were
as described by the officer. He acknowledged that he had been on a methadone
maintenance program for 13 months and that he regularly took his prescribed
dosage of methadone between 7:00 and 7:30 every morning. He also produced Dr.
Hans W. Freymuth, a medical expert in the field of narcotics, who testified
that it was highly unlikely that defendant would exhibit the symptoms observed
by the officer from a regular dosage of methadone taken some 14 hours earlier
as part of a maintenance program.
It was his opinion that "something
else" was responsible for defendant's condition and while he thought that
an additional dose of methadone would not be the cause, there was a strange
mixture of symptomatology which made it difficult to determine what kind of
toxic substance defendant might
[68 N.J. 420]
have taken. Dr. Freymuth would at least
"suspect" that defendant had taken additional methadone or another
opiate.
The trial judge found the arresting
officer's testimony as to defendant's erratic operation of his car, his
behavior and physical characteristics to be credible. He also accepted the
testimony of Dr. Baird and found that defendant had, within several hours of
his arrest, ingested an opiate or a narcotic drug with opiate-like qualities,
so that at the time of his arrest defendant was under the influence of a
narcotic to the extent that his physical coordination and mental faculties were
deleteriously affected. As heretofore noted, he found defendant guilty. A fine
of $200 and costs was imposed and defendant's driver's license was suspended
for a period of two years.
Defendant appealed to the County Court
where, on a trial de novo on the record, he was again found guilty and
the same sentence was imposed. On appeal to the Appellate Division, the
judgment was affirmed on the ground that there was sufficient credible evidence
to support the conviction of defendant for operating his motor vehicle while
under the influence of methadone which the Appellate Division noted
"clearly" was a narcotic drug.
We granted certification principally to
consider the impact, if any, of defendant's conviction on methadone maintenance
programs. 66 N.J. 333 (1974).
The principal contention of defendant
and the amicus Patrick House Legal Clinic is that defendant was
convicted because of his admitted participation in a maintenance program and
that the Appellate Division equated defendant's legal use of methadone with
being under the influence of methadone. It is argued that this broad
application of the statute effectively bars participants in methadone
maintenance programs from operating a motor vehicle — almost a necessity in
today's society — thus destroying the viability and attractiveness of these
maintenance programs.
We do not agree that the Appellate
Division gave the statute the meaning attributed to it. The language
"under
[68 N.J. 421]
the influence" used in the statute
has been interpreted many times. Generally speaking, it means 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. In State v. Johnson, 42 N.J. 146, 165 (1964), an
intoxicating liquor case, we stated that "under the influence" meant
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. More recently,
in State v. DiCarlo, 67 N.J. 321 (1975), we held that
an operator of a motor vehicle was under the influence of a narcotic drug
within the meaning of N.J.S.A. 39:4-50(a) 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." Id. at 328.
Essentially this was the standard
applied by the Appellate Division. Defendant was found guilty because the
evidence showed he was under the influence of a narcotic to an extent that it
materially affected his physical and mental faculties and made it unsafe for
him to operate a motor vehicle on the highway.
The Appellate Division stated that the
drug in question was methadone. However, this was unnecessary to the court's
decision. The statute does not require that the particular narcotic be
identified. It is enough if, from the subject's conduct, physical and mental
condition and the symptoms displayed, a qualified expert can determine that he
or she is "under the influence" of a narcotic. This, of course, would
include a drug which produces a narcotic effect. DiCarlo, supra. To the
extent that State v. Siegmeister, 106 N.J.Super. 577 (Cty. Ct. 1969) and State v. Tiernan, 123 N.J.Super. 322 (Cty. Ct. 1973) hold to the contrary, they are disapproved.
[68 N.J. 422]
The 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.
It should be made perfectly clear that
mere participation in a methadone maintenance program does not subject a motor
vehicle operator participant to a charge of violating this statute. There were
proofs that once a participant becomes stabilized on a regular dosage of
methadone, ability to operate a motor vehicle with safety is not impaired.
However, participation in such a program does not immunize a person from
application of the statute.
We do not know whether defendant's
condition was the result of his having taken his prescribed dosage of methadone
that morning. His medical expert opined that "something else" had
caused defendant's symptoms. What is clear, though, is that defendant exhibited
unmistakable symptoms of being under the influence of a narcotic within the
meaning of the statute, and was unfit to operate a motor vehicle.
Affirmed.
For affirmance — Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and
SCHREIBER and Judge CONFORD — 7.
For reversal — None.
FOOTNOTES
1. Defendant asserts that in May 1971, the Clifton
Municipal Court had ordered him to enroll in a methadone maintenance program.
2. Because of this, participants in methadone
maintenance programs are required to surrender their drivers' licenses to the
program during the first few weeks of treatment.
