STATE OF NEW JERSEY v. DOUGLAS CIRLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4079-07T4 4079-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOUGLAS CIRLIN,

Defendant-Appellant.

________________________________

 

Submitted: September 23, 2009 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-068.

C. Robert Sarcone, attorney for appellant.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Douglas Cirlin appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was initially found guilty in the Verona Municipal Court. He was sentenced as a third-time DWI offender to a 180-day custodial sentence, a ten-year suspension of his driver's license, a one-year ignition interlock, and was ordered to pay a $1,006 fine, court costs, and other monetary penalties and surcharges. The custodial sentence was stayed pending appeal.

After a trial de novo in Superior Court, Rule 3:23-8(a), defendant was again convicted of the DWI offense. He was sentenced just as he was in the municipal court. The Law Division judge denied defendant's request for a stay of his custodial sentence, and by order of April 23, 2008, we denied defendant's emergent application for such stay.

On appeal, defendant presents the following arguments:

POINT I

The State Has Failed To Show That The Defendant Violated N.J.S.A. 39:4-50 By Failing To Introduce Evidence That Defendant Was Under The Influence Of Intoxicating Liquor, Narcotics, Hallucinogenic Or Habit-Producing Drugs.

POINT II

The Conviction Is Against The Weight Of The Evidence.

Based on our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm.

The following testimony and evidence was presented at trial. Another driver testified he observed defendant driving in an unusual manner at about l0:45 p.m. through the Township of Verona. At the intersection of Bloomfield Avenue and Elm Street, the driver had pulled up alongside defendant's vehicle and noticed defendant was resting his head on the steering wheel. Defendant glanced over and waved at the driver, and then continued driving east on Bloomfield Avenue in an erratic manner, weaving from the eastbound lanes to the westbound lanes, crossing over double yellow lines, and driving on the opposite side of the road. The driver alerted the police.

Verona Police Officer David Wardrope stopped defendant's vehicle, informing him he had received a 9ll call regarding defendant's erratic driving behavior. The officer observed defendant's movements to be slow and a little disoriented as he handed over his credentials, and defendant's eyes were bloodshot and watery. The officer also detected the odor of alcohol emanating from inside defendant's car, to which defendant responded that he may have broken a bottle of wine in the rear of his car. Defendant denied he had consumed any alcohol but did admit he was taking Niravam for anxiety, and showed the officer a small bottle of the prescription medication on the front seat of his car.

Defendant was asked to exit his car and Officer Anthony Condorelli asked him to perform a series of field sobriety tests. As testified to by Officers Wardrope and Condorelli, defendant had difficulty performing the tests. The one-legged stand test was not performed based on defendant's representation to the officers that he had several hip replacements. On the walk-and-turn test, instead of following the instructions to take nine steps each way and to count aloud with each step, defendant took ten steps forward and made a wide turn and took eight or nine steps back, and did not count aloud. Defendant's forward steps were slow, wobbly and off balance, his feet were spread apart and were not touching heel-to-toe, and he stepped off the line. Defendant also tested positive for three out of the four horizontal gaze nystagmus (HGN) tests; according to Officer Condorelli, a positive result on only two of the four tests indicates possible intoxication. Furthermore, when asked to recite the alphabet from letters "C" to "X," defendant responded with a slow and obviously slurred voice, reciting to "R" and then skipping to "X." Based on their observations and training, both officers formed an opinion that defendant was under the influence of alcohol or drugs. Officer Wardrope further noted his belief that defendant was not able to operate a motor vehicle in a safe manner.

Defendant was transported to headquarters for additional testing. Defendant's speech was still slurred, he was still uneasy on his feet and he had difficulty maintaining his balance, bumping into several walls at headquarters. Two breathalyzer tests were administered, resulting in 0.0 readings. Officer Page Parsels, a certified Drug Recognition Evaluation (DRE) expert, began his evaluation of defendant around midnight. The State's expert testified in detail as to his observations of defendant's physical condition, which were similar to that of the other officers; his clinical assessment of defendant's vitals; and the results of the HGN test, which indicated defendant was showing signs of being under the influence of alcohol or drugs. Officer Parsels also re-administered standard sobriety tests, which included: (1) the Romberg balance test, which required defendant to stand with his feet together and arms at his side, close his eyes, tilt his head back, and estimate thirty seconds, during which defendant swayed and estimated forty-three seconds, indicating his inner clock was slow; (2) the walk-and-turn test, during which defendant failed to touch his heel to his toe on every step, failed to count out loud, pivoted quickly to his right rather than turning slowly to his left, and consistently used his arms for balance rather than keeping his arms at his sides; and (3) finger-to-nose test, which defendant performed by putting the pad of his finger to his nose all six times rather than his finger tip to his nose. Officer Parsels further related that defendant told him he was taking four specific medications, including Niravam, and at around 5 p.m. he had taken the prescribed dosages "and maybe an extra Niravam." Officer Parsel directed that a sample of defendant's urine be taken, and according to the New Jersey State Police analysis, the sample tested positive for the drug Alprazolam, which is the generic name of Niravam and Xanax. The expert opined that defendant was under the influence of a central nervous system depressant and thus should not have been operating a motor vehicle at that time.

Defendant presented Dr. Richard Saferstein as his expert in forensic toxicology, who opined that the finding of any drug in urine cannot be correlated with impairment but only with past use of the drug. He pointed out examples of the clinical assessments in the DRE report that he believed were inconsistent with the finding of an individual under the influence of a depressant and expressed the belief that the pharmacological effects of Niravam would have dissipated by the time of defendant's arrest. Dr. Saferstein did acknowledge, however, that according to the medical literature, the clinical effect of this drug is six to eight hours.

Dr. Michael Cannella, defendant's treating psychiatrist, testified, in part, about defendant's medical condition and represented that he has a unique speech pattern in which he obsessively rambles and the words have a "tendency to blur into another." He opined the clinical effects of Niravam would probably be between one and five hours. Defendant's father testified that defendant sways slightly when he walks and he uses a cane from time to time. Defendant attributed his weaving to the fact his car was stalling and his power steering was "kicking in and out." He further attributed his slurred speech to a nasal problem, noting his belief that his speech was currently slurred. Defendant denied telling the officer he took an extra Niravan.

Based on the testimony and evidence presented at trial, the municipal court judge found defendant guilty of driving while under the influence of a narcotic, hallucinogenic or habit-producing drug. The judge expressly credited the testimony of the other driver as to defendant's erratic driving and found defendant's explanation that his performance was attributable to car trouble and stalling "[not to] ring true." The judge further credited the officers as to their observations of defendant's drunk-like physical condition and his poor performance on the psycho-motor tests, the testimony of Officers Wardrope and Parsel as to defendant's statement that he may have taken an extra Niravam, and the DRE expert's opinion that defendant was under the influence and should not have been operating a motor vehicle.

In her de novo review of the municipal court conviction, the Law Division judge ultimately made the same finding that defendant was guilty of DWI. In a comprehensive written opinion of April l5, 2008, Judge Patricia Costello set forth in detail her factual and legal basis for finding defendant guilty of operating a motor vehicle "while under the influence of . . . [a] narcotic, hallucinogenic or habit-producing drug," N.J.S.A. 39:4-50, i.e., being under the influence of a drug that produced a narcotic effect "so altering his . . . normal physical coordination and mental faculties as to render [him] a danger to himself as well as to other persons on the highway," State v. DiCarlo, 67 N.J. 321, 328 (1975). The judge recited the testimony as to defendant's erratic driving; his poor performance on various field sobriety tests; his physical condition of slow and unsteady movements, slurred speech, and nystagmus; his admission he took the prescriptions at approximately 4:00 to 5:00 p.m.; and the defense expert's testimony that the clinical effects of Niravam are up to eight hours.

The Law Division judge also properly deferred to the credibility assessments of the municipal court judge, including defendant's admission regarding the extra dose of Niravam. Similar to the municipal court judge, the Law Division judge was also satisfied that defendant's hip replacement or normally unsteady gait did not excuse his failure to recite the alphabet correctly, slow internal clock as demonstrated by his performance on the Romberg balance test, and failure to follow directions on the walk-and-turn test. Similarly, neither judge found credible defendant's explanation regarding his slurred speech as resulting from post-nasal drip, excitement about being pulled over, or his normal speech pattern, both noting the record reflected defendant's speech was clear at the municipal court trial. The Law Division judge further explained the reason why she did not find the "minor inconsistencies" raised by Dr. Saferstein to be sufficient to raise a reasonable doubt.

In its de novo review of a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law, although it is bound by the evidentiary record in the municipal court. State v. Loce, 267 N.J. Super. 102, l04 (Law Div. l99l), aff'd o.b., 267 N.J. Super. l0 ((App. Div.), certif. denied, l 34 N.J. 563 (1993). The Law Division must also give due regard to the municipal judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964).

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. l995). However, as with the Law Division, we are not in a position to judge credibility and do not make new credibility findings. State v. Locurto, l 57 N.J. 463, 470-71 (1999) (citing State v. Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." State v. Avena, supra, 281 N.J. Super. at 333 (citations omitted).

We affirm substantially for the reasons set forth by Judge Costello in her thorough written opinion. Contrary to defendant's assertion, this is not a case where guilt was based on the mere presence of Alprazolam in defendant's urine, which the State acknowledges cannot be correlated with impairment. On the contrary, there was substantial credible evidence establishing beyond a reasonable doubt that defendant was under the influence of a drug that impaired his ability to safely operate a motor vehicle. The unmistakable symptoms were evident in defendant's driving performance, ingestion of the depressant drug Niravam within the relevant time frame, and physical and mental condition and the symptoms displayed to the officers.

We are also satisfied the record supports the Law Division judge's conclusion respecting the defense expert's testimony. The DRE expert testified, and both defense doctors acknowledged, that the central nervous system depressant drug affects different individuals in different ways. Moreover, as noted by the Law Division judge, the inconsistency in some of defendant's vital signs could have been attributable to having taken an extra Niravam.

In addition to challenging the weight of the evidence, defendant argues for the first time on appeal that since Alprazolam is not defined as a narcotic, hallucinogen or habit-producing drug under N.J.S.A. 2C:35-2 and N.J.S.A. 24:21-5 and 6, the State has failed to show that defendant violated N.J.S.A. 39:4-50. This argument was rejected by the Supreme Court in State v. DiCarlo, supra, stating:

It seems quite clear the purposes of the two statutes are quite different. N.J.S.A. 39:4-50 seeks to prevent the operation of motor vehicles by those whose faculties are so impaired as to present a danger to the safety to others as well as to themselves. On the other hand the Controlled Dangerous Substance Act, N.J.S.A. 24:21-1 et seq, . . . has had as its object the suppression of illegal traffic in narcotic drugs. Thus, in enacting N.J.S.A. 39:4-50, the legislative concern was not with the specific type of drug used, but rather with the effect that its ingestion by a driver would have upon his own safety as well as that of the general public. Given this broader purpose, we feel no compulsion to restrict the application of this statute by finding it to be in pari materia with the Controlled Dangerous Substances Act.

[67 N.J. at 325-26 (internal citations omitted).]

Affirmed.

Dr. Cannella was not defendant's treating psychiatrist at the time of this incident in April 2007 and did not prescribe the Niravam; he began treating defendant in July 2007.

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A-4079-07T4

October 1, 2009