J.L.M.State County Prosecutor

Office of the County Prosecutor J.L.H.First Assistant Prosecutor

County of State F.P.Executive Assistant

Prosecutor

CITY, STATE 00000(555) 555-5555

C.C.Trial Chief

S.S.Chief of Detectives

December 2, 20xx

A.C.Senior Assistant Prosecutor Of Counsel

C. KEVIN GRIMLaw InternOn the Letter Brief

LETTER IN LIEU OF BRIEF AND APPENDIX ON BEHALF OF THE STATE OF STATE

Honorable Judge Josh J. Jones, A.C.CSuperior Court of State, Law DivisionState County Justice Center, Room 000City, ST 00000

Re: STATE OF STATE V. DAN D. DEFENDANTMunicipal Appeal Number: BMA# 000-00-00

On De Novo Review from a Final Judgment of Conviction Entered in the Municipal Court of Town, State County, State.

Sat Below: Honorable Jennifer J. Jewel, A.B.C.

Dear Judge Jones:

Please accept this letter brief in lieu of a more formal brief on behalf of the State with regard to the above referenced municipal appeal. This matter is scheduled before Your Honor on Wednesday, November 2, 20xx at 3:30 p.m. in Room 000.

COUNTER-STATEMENT OF PROCEDURAL HISTORY

On June 23, 20xx, defendant, Dan Defendant was issued Town

Municipal Summons No. A-0000-000000 with being under the

influence of a controlled dangerous substance [“CDS”] in

violation of S.S.A. 2C:35-10B and driving while impaired or under

the influence [“DWI”], in violation of S.S.A. 39:4-50. (Pa1 to

4).1

A first appearance took place on August 4, 20xx at which the

court advised defendant of his rights and counsel was assigned.

(Pa2).

On March 23, 20xx, defendant, represented by Donald C.

Defender, Esq., appeared in Town Municipal Court before the

Honorable Jennifer J. Judge, A.B.C. (Db4). Defendant had

submitted a pretrial brief making a motion to exclude the Drug

Recognition Expert (DRE) Opinion Testimony. (Db4). Judge Jewel

did not rule on the motion until the conclusion of the trial, at

which point, it was denied. (3T19-18 to 20-6).

On May 25, 20xx, after considering testimony from the

State’s witnesses, Officers Robert Cop, and Harold Dirt, and Mr.

Horace Cain, a forensic scientist, and defendant’s expert

witness, Dr. Ellen R. House, and the arguments of counsel, Judge

1“1T” refers to the Municipal Court transcript of March 23, 20xx. “2T” refers to the Municipal Court transcript of April 27, 20xx. “3T” refers to the Municipal Court transcript of May 25, 20xx. “Db” refers to defendant’s brief dated September 21, 20xx. “Pa” refers to the appendix attached to the State’s brief.

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Jewel found the State’s witnesses credible and held the State

proved beyond a reasonable doubt that defendant drove while under

the influence of drugs which were narcotic and habit-producing.

(3T11-10 to 12-1). Judge Jewel found defendant not guilty of

being under the influence of a controlled dangerous substance,

because defendant had a valid prescriptions. (3T12-3 to 8).

On the DWI charge, Judge Jewel imposed the minimum sentence

for a second-time DWI offender2: a $500 fine, $33 in court costs,

a $50 Victims of Crime Compensation Board [“VCCB”] assessment, a

$75 Safe Neighborhoods Services Fund [“SNSF”] assessment, $200

DWI surcharge, to attend an Intoxicated Driver Resource Center

[“IDRC”] for 48 hours, in lieu of jail time, and to forfeit his

driving privileges for two years. (3T14-11 to 24). Judge Jewel

also ordered defendant to install an ignition interlock device

during the license suspension and for two years thereafter.

(3T16-16 to 17-2).

Judge Jewel granted defendant’s motion to stay the

suspension of his license for fourteen days so that he might file

an appeal. (3T17-15 to 19-10).

On June 13, 20xx, defendant filed a timely Notice of Appeal.

(Db6). The Honorable Daisy P. Delilah, A.K.Be., granted

2 Contemporaneous with the filing of this brief, the State is submitting a copy of defendant’s driving abstract to the Court and serving same on our adversary.

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defendant’s motion for a continued stay and stayed defendant’s

sentence. This appeal follows. (Db6-3 to 9).

COUNTER-STATEMENT OF FACTS

On June 23, 20xx, at approximately 9:45 p.m., Town Police

Officer Harold Dirt was called to the area of 123 North and Ave

Avenues in Township. (1T16-22 to 17-13). The woman who had

called 9-1-1 had her hazard lights activated and identified

defendant’s car to Officer Dirt who then made a right turn onto

Abraham Avenue. (1T17-12 to 22). Officer Dirt went down Abraham

Avenue, located defendant’s car, pulled behind it and activated

his overhead lights. (1T18-1 to 6).3 After Officer Dirt stopped

the car, he approached the vehicle and asked defendant, the

driver, to provide his credentials. (1T18-9 to 10).

Defendant had his wallet open and Officer Dirt was able to

clearly see defendant’s license in the fold of the wallet.

(1T18-11 to 12). Defendant fumbled around for his credentials.

(1T-18-14). At one point, defendant fell asleep as Officer Dirt

was speaking to him. (1T18-14 to 17). Officer Dirt awoke

defendant and again asked for his credentials. Defendant,

however, again fell back asleep. (1T18-19 to 21). Defendant was

eventually able to provide his credentials. (1T18-23 to 25).4

3 In the municipal court, the defense stipulated to defendant operating a motor vehicle, as well as probable cause for the stop. (1T15-19 to 20; 3T5-5 to 10). 4 At trial, the defense stipulated that defendant, after being pulled over, evidenced some signs that are traditionally associated with indicating intoxication but explained, through

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Officer Dirt then had defendant perform three field sobriety

tests, none of which defendant properly performed. (1T19-13 to

22).5 At this point, defendant was placed under arrest and

brought to the Town Police Department. (1T20-14 to 11).

Officer Dirt called Sergeant Pepper who notified Town

Headquarters that a Drug Recognition Expert (DRE) would be

needed. (1T21-16 to 18). At approximately 11:50 p.m., Officer

Robert Cop, of the State County Police Department, received

instructions to come to the Town Police Department to conduct a

drug influence evaluation of defendant. (1T24-22 to 25-1).

Officer Cop made several inquiries of defendant regarding

his over-all health and fitness, what he had eaten that day,

whether he had consumed any alcohol or taken any medication, as

well as a battery of tests including taking defendant’s pulse,

his blood pressure, and checking his pupils. (1T32-20 to 33-5).

Officer Cop also had defendant repeat “the full standardized

field sobriety tests,” including the horizontal gaze nystagmus,

the vertical gaze nystagmus, the Romberg balance, walk-and-turn,

one-leg stand, and finger-to-nose tests. (1T33-5 to 33-13; 1T34-

counsel and expert testimony that it was defendant’s position that he had a seizure while driving. (1T15-22 to 25).5 At trial, the defense stipulated to defendant not being able to complete all three of the field sobriety tests properly and also that defendant’s performance on the field sobriety tests gave rise to probable cause for his arrest and his urine being taken. (1T19-22 to 20-12).

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9 to 12; 1T35-7 to 10).6 After the questioning and tests,

Officer Cop, based on the totality of the investigation he had

conducted, concluded that defendant was under the influence of a

central nervous system depressant. (1T36-3 to 6; 1T37-12 to

22).7

Because the Town Alcotest was out of service, defendant was

transported by Officers Dirt and Pepper to the Eastwood Park

Police Department where Officer John Wayne observed Defendant for

twenty-minutes before conducting the breath test that resulted in

a blood alcohol reading of 0.0%. Defendant was then asked to

give a urine sample, which he provided. (1T20-24 to 21-7).8

Mr. Horace Cain, a Forensic Scientist from the State Police

Office of Forensic Sciences, conducted a toxicology analysis of

defendant’s urine which revealed the presence of Citalopram

(brand name: Celexa), an anti-depressant, Lamotrigine (brand

name: Lamictal), an anti-seizure medication, and Quetiapine

(brand name: Seroquel), an anti-psychotic medication. (1T8-12 to

6 The defense stipulated to defendant’s continued poor performance on all of these tests. (1T33-23 to 34-1; 35-13 to 14).7 In this appeal, the State relies solely on Officer Cop’s testimony about defendant’s performance on the standardized field sobriety tests, excluding the HGN and VGN tests. See State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000). As Judge Jewel observed, there was no dispute as to the physical observations Officer Cop made of defendant. (3T10-13 to 18). We further note that the DWI statute does not use the term “central nervous system depressant,” and do not rely on the Officer’s testimony in this regard to establish defendant’s guilty of DWI.8 At trial, the defense stipulated to a urine sample being collected from defendant.

6

10-15; S-1).9 At trial, Mr. Cain testified that two of these

drugs had hallucinogenic effects and all had habit-producing

qualities. (1T10-18 to 12-20). Mr. Cain testified that

Citalopram (Celexa) was a habit producing drug because “your body

would go through withdrawal symptoms … you could have lack of

sleep. These could be dizziness, could be headaches. There

could be tired, nausea, things of that sort.” (T11-1 to 7). Mr.

Cain also opined that Lamotrigine was habit forming in that if

one were to abruptly stop taking it, he would experience

drowsiness, headaches, nausea. (T11-10 to 8). Mr. Cain’s

opinion was based on “literature” regarding these drugs and the

Physician’s Desk Reference. (T12-18 to 19). The State

stipulated to defendant having a valid prescription of the drugs

found in his system. (2T3-9 to 25).

Dr. Ellen R. House, a psychiatrist, testified for defense.

(1T51-100). Dr. House, however, at no time physically examined

defendant, nor did she even know who prescribed the drugs to

defendant. (1T74-12 to 75-11; 1T83-18 to 21). Dr. House only

based her opinion on her training, experience and a review of

defendant’s medical records. (1T74-23 to 75-21). Dr. House

opined that the medications identified in defendant’s urine would

cause a “minor withdrawal” if one were to stop taking them

9 Defendant is correct that Mr. Cain did not testify that Quetiapine was a narcotic. (Db20). Judge Jewel was mistaken in stating that Mr. Cain had given such testimony. (3T4-12 to 19).

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abruptly. (1T77-13 to 78-6). Specifically, Dr. House stated, on

cross-examination, that a person who was to immediately stop

taking any of these drugs would feel “a little uneasy for a few

days …” and experience withdrawal symptoms such as “dizziness,

uneasiness and headache.” (1T79-13 to 14). Dr. House testified

that the drugs were not in fact hallucinogenic, narcotic, and

were only minimally habit-forming. (1T68-22 to 69-4). Dr. House

further indicated that there would be withdrawal symptoms to some

of the drugs found in defendant’s system, should he stop taking

them (i.e. Celexa). (1T77-8 to 81-1). Dr. House also stated

that it was her opinion that defendant suffered from a seizure

disorder and that he had seizures in the past. She based her

opinion on a letter from defendant to his attorney and medical

records from Mountain Hospital, where defendant went following a

purported seizure. (1T61-19 to 25; 1T97-2 to 100-10). Finally,

Dr. House disputed the validity of the blood pressure reading

taken by Officer Cop. (T70-10 to 72-9).

After listening to the testimony, Judge Jewel found Mr. Cain

and Officer Cop more credible and persuasive than Dr. House and

determined the drugs to be “narcotic and habit-producing.”10

Based on this evidence, he found defendant guilty of DWI. (3T10-

6 to 12-11).

STANDARD OF REVIEW

10 See footnote 9, supra.

8

The function of the Superior Court on an appeal from the

Municipal Court is to make independent findings of fact and legal

conclusions on the evidentiary record made below, giving due

regard to the opportunity of the municipal judge to assess the

credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157

(1964); State v. States, 44 N.J. 285, 293 (1965); State v.

Godshalk, 381 N.J. Super. 326, 328 (Law Div. 2005). In Johnson,

the New Jersey Supreme Court reasoned that the trial court is in

the best position to see and hear the witnesses and get an

overall “feel” of the case. Id. at 161.

The New Jersey Supreme Court has reinforced Johnson,

unanimously holding that “[a]ppellate courts should defer to the

trial Court’s credibility findings that are often influenced by

matter such as observation of the character and demeanor of

witnesses and common human experience that are not transmitted by

the record.” State v. Locurto, 157 N.J. 463, 474 (1999).

LEGAL ARGUMENT

POINT I11

DEFENDANT IS GUILTY, DE NOVO, OF DRIVING WHILE INTOXICATED BEYOND A REASONABLE DOUBT.

Defendant argues that the State has failed to establish his

guilt of DWI beyond a reasonable doubt. Specifically, he argues

that the State provided inadequate factual testimony and evidence

11 Point I responds to the arguments in Points I, II, and III of defendant’s brief.

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that defendant was intoxicated. The State submits that

defendant’s arguments are without merit.

Pursuant to N.J.S.A. 39:4-50, a person is guilty of driving

while intoxicated if they operate a motor vehicle while under the

influence of any intoxicating substance. The State must prove a

defendant’s guilt beyond reasonable doubt. State v. Johnson, 42

N.J. 146, 156 (1964).

The New Jersey Supreme Court has specified that “under the

influence” can be defined as either (1) 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; or (2)

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. State v. Bealor, 187 N.J. 574, 589-90 (2006).

Very significantly, N.J.S.A. 39:4-50(a), 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

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or habit-producing drug while he operated a motor vehicle.”

Robert Ramsey, New Jersey Drunk Driving Law. p. 275 (2007).

Typically, judges consider a wide variety of factors when

determining whether the State has proven beyond a reasonable

doubt that a defendant was operating a motor vehicle while

intoxicated. See e.g., Bealor, supra at 590-91 (sustaining

conviction based on defendant’s erratic and dangerous driving,

slurred speech, bloodshot and glassy eyes, pale and flushed face,

his fumbling for his credentials, smell of marijuana, sagging

knees, and blank stare on his face); State v. Cleverley, 348 N.J.

Super. 455, 465 (App. Div. 2002) (sustaining conviction on

defendant’s driving without headlights on, smell of alcohol on

defendant’s breath, slurred speech, combative demeanor,

difficulty standing, and inability to perform the field sobriety

tests); State v. Oliveri, 336 N.J. Super. 244, 251-252 (App. Div.

2001) (sustaining conviction on defendant’s watery eyes, slurred

speech, inability to follow commands, defendant’s admission that

he had consumed alcohol, staggering while walking, and failure to

complete field sobriety tests).

In the instant case, there is sufficient evidence that

defendant was driving while intoxicated based on defendant’s poor

driving (as it was enough to have a citizen observer call the

police), defendant’s behavior after being pulled over

(specifically, falling asleep as a police officer was questioning

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him), Officers Cop and Dirt’s observations of defendant’s

demeanor, defendant’s poor performance on the two independently

administered sets of field sobriety tests (one set by Officer

Dirt, the other by Officer Cop), and the results of defendant’s

urine test that according to forensic scientist Cain’s testimony,

identified in defendant’s system three prescription drugs, two of

which also had hallucinogenic effects and all of which were habit

forming.

Defendant disputes the credibility of the State’s witnesses,

even though he stipulated to the State’s witnesses’ credentials

as experts in their respective fields. Very significantly,

however, after listening to all of the witnesses, Judge Jewel

found the testimony of Mr. Cain of the State Lab to be credible.

He made a similar finding with respect to the testimony of

Officer Cop, the drug recognition expert, and Officer Dirt, the

arresting officer. Based on all of the State’s witnesses’

testimony, the Judge found the State to have sufficiently proved

beyond a reasonable doubt that defendant was DWI. (3T10-11 to

15).

Conversely, Judge Jewel found the defense’s psychiatrist

expert witness, Dr. House, to be unpersuasive “with regard to her

attempt to minimize the purpose of the drugs that were apparently

validly prescribed to [defendant].” (3T11-1 to 5). Dr. House

made light of the habit-producing nature of these drugs and

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testified that none of them were hallucinogenic, contradicting

Mr. Cain’s testimony that two of the drugs were hallucinogenic.

However, Dr. House’s testimony was found by Judge Jewel to be

unconvincing.

Dr. House never made a single formal request to examine

defendant and was not his treating physician. The State submits

that without actually examining defendant, Dr. House’s testimony

should not be credited. Dr. House also admitted that “anything’s

possible when taking medication” when answering if “it was

possible that the three substances that were found in his system

impaired his ability to control [his] vehicle.” (1T87-24).

This court should defer to the credibility determinations of

the lower court. See State v. Locurto, 157 N.J. 463, 474 (1999)

(holding that reviewing courts “should defer to trial courts’

credibility findings that are often influenced by matters such as

observations of the character and demeanor of witnesses and

common human experience that are not transmitted by the record.”)

(citations omitted); Johnson, 42 N.J. at 161 (holding that the

Law Division reviewing a municipal appeal de novo “should give

deference to those findings of the trial judge which are

substantially influenced by his opportunity to hear and see the

witnesses and to have the ‘feel’ of the case, which a reviewing

court cannot enjoy.”). See id.

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Defendant further argues that Mr. Cain never identified

which of the three drugs had hallucinogenic effects, but N.J.S.A.

39:4-50(a) does not require such identification. State v.

Tamburro, 68 N.J. at 421. It is sufficient that a qualified

expert witness (which defense, himself, stipulated Mr. Cain was)

testified as Mr. Cain did. The ultimate decision is left for the

finder of fact. As Judge Jewel stated, the State can prove its

case through the use of an expert pursuant to State v. Tamburro,

supra, and State v. Bealor, supra, a burden which he concluded

the State met in this case. (3T10-5 to 12-7).

Defendant’s explanation that he had a minor seizure and that

he was on certain medication to prevent such a seizure does not

undermine Officers Dirt’s and Cop’s well-substantiated

conclusions based on their observations of defendant that he was

intoxicated and unable to operate a motor vehicle safely because

of his poor performance on the field sobriety tests as well as

his behavior in general. Nor does such an explanation undermine

Mr. Cain’s testimony. Lastly, such an explanation fails to

account for how poorly defendant performed on each and every

field sobriety test. It bears emphasis that defendant failed on

two separate sets of field sobriety exercises administered at two

different times. These psychophysical tests are meant to

determine if a person is capable of driving safely.

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To conclude, the State does not have to prove precisely what

habit producing or hallucinogenic drug defendant was under the

influence of at the time he drove on June 23, 20xx. State v.

Tamburro, supra. The testimony from the State’s witnesses

established that the drugs found in defendant’s system were habit

forming and that two had hallucinogenic effects. This was ample

evidence, coupled with defendant’s falling asleep, his poor

performance on the field sobriety tests and his erratic driving

reported by a citizen informant, for Judge Jewel to conclude that

the State met its burden beyond a reasonable doubt.

CONCLUSION

Based on the foregoing, the State respectfully requests that

this court find defendant guilty, de novo, of DWI, contrary to

N.J.S.A. 39:4-50, and impose the sentence as below.

Respectfully submitted,

J. L. M.State County ProsecutorAttorney for the Plaintiff – Respondent

By:_________________________ A.C. Senior Assistant Prosecutor Of Counsel

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C. KEVIN GRIM Law Intern On the Letter Brief

cc: Donald C. Defender, Esq.

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