State v. Justin Bealor
(A-31-05)
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 “[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.” 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 “[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[,]” 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 “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. 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. (Pp. 13-14)
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. (Pp. 14-17)
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. (Pp. 17-23)
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. (Pp. 23-25)
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.
reported at 377 N.J. Super. 321
(2005).
Steven A. Yomtov, Deputy
Attorney General, argued the cause for appellant (Zulima V. Farber,
Attorney General of New Jersey, attorney).
Brian S. O'Malley argued the
cause for respondent.
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.[1] 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[2]
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[3] 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[.]”[4] 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.[5] 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[6],
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.[7] 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.
SUPREME COURT OF NEW JERSEY
NO. A-31 SEPTEMBER
TERM 2005
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW
JERSEY,
Plaintiff-Appellant,
v.
JUSTIN BEALOR,
Defendant-Respondent.
DECIDED July 20, 2006
Chief Justice Poritz PRESIDING
OPINION BY Justice Rivera-Soto 
CONCURRING/DISSENTING
OPINIONS BY
DISSENTING
OPINION BY
|
CHECKLIST
|
REVERSE/
REINSTATE/
REMAND
|
|
|
CHIEF
JUSTICE PORITZ
|
X
|
|
|
JUSTICE
LONG
|
X
|
|
|
JUSTICE
LaVECCHIA
|
X
|
|
|
JUSTICE
ZAZZALI
|
X
|
|
|
JUSTICE
ALBIN
|
X
|
|
|
JUSTICE
WALLACE
|
X
|
|
|
JUSTICE
RIVERA-SOTO
|
X
|
|
|
TOTALS
|
7
|
|
[1] There is a
stenographic error in the trial transcript that mistakenly refers to Trooper
Innella as “Ianella.”
[2] Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
[3] In 2001, the
Legislature adopted L. 2001, c. 69 in response to a tragic incident in
July 2000 when a driver arrested for driving while intoxicated was released by
the police to the custody of a friend.
That friend immediately returned the intoxicated driver to his car and
each went their separate ways. Shortly
thereafter, the intoxicated driver collided with a car driven by Navy Ensign
John R. Elliott, who had graduated from the United States Naval Academy at
Annapolis just two months before, killing himself and Elliott and severely
injuring Elliott’s passenger.
Commonly
known as “John’s Law,” the two operative sections of L. 2001, c.
69 have been codified: Section 1, now N.J.S.A.
39:4-50.22, requires that the police issue responsibility warnings to those who
assume custody of a person arrested for driving while intoxicated; and Section
2, now N.J.S.A. 39:4-50.23, authorizes the arresting law enforcement
agency to impound the vehicle operated by a person arrested for driving while
intoxicated for a period of twelve hours.
[4] See footnote
3, supra.
[5] Although
defendant attended the first day of his two-day municipal court trial, defendant
was unable to attend the second day, which was held three months later. As a result, by the time the prosecution
rested its case, defendant was not available to testify. For that reason, the municipal court
disregarded all of defendant’s
statements to the police officers as proof of intoxication and relied, instead, solely on Donahue’s observations
of defendant’s demeanor. It was
represented, however, that, had defendant testified, he would have denied many
of the statements Donahue attributed to defendant.
[6] Defendant
also received three additional citations concerning the events of July 11,
2002. These charged defendant with improperly
operating a motor vehicle on a divided highway, in violation of N.J.S.A.
39:4-82.1, careless driving, in violation of N.J.S.A. 39:4-97, and
operating a motor vehicle while knowingly possessing marijuana, in violation of
N.J.S.A. 39:4-49.1. The municipal
court explained that, because there were sufficient proofs to convict defendant
on both the improper operation on a divided highway charge and the careless
driving charge, the municipal court would only find defendant guilty of one and
allowed defense counsel to choose which.
Defense counsel selected the improper operation on a divided highway
charge. Hence, the municipal court
convicted defendant of the improper operation on a divided highway charge and
dismissed the careless driving charge.
In addition, the municipal court and the municipal prosecutor agreed
that, because the marijuana found in the glass pipe amounted only to trace
evidence, there was insufficient evidence to convict defendant of the charge of
operating a motor vehicle while knowingly possessing marijuana; that citation
too was dismissed. We express no opinion
in respect of the propriety or correctness of any of those determinations.
Defendant did not appeal his conviction for improper operation of
a motor vehicle on a divided highway.
Therefore, we restrict our discussion solely to defendant’s conviction
for driving while intoxicated.
[7] A defendant,
of course, remains free to defend on the basis that the amount of marijuana or
other qualifying drug found in his system was insufficient to render him “under
the influence.” No such defense was
tendered in this case.
