STATE OF NEW JERSEY v. DENNIS NEWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4072-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS NEWELL,

Defendant-Appellant.

________________________________________________________________

Argued February 14, 2011 Decided August 18, 2011

Before Judges LeWinn and Coburn.

On appeal from the Superior Court of New

Jersey, Law Division, Sussex County, Municipal

Appeal No. 38-12-09.

John D. Williams argued the cause for appellant

(Gruber, Colabella, Liuzza & Williams, attorneys;

Virginia D. Liotta, on the brief).

Gregory R. Mueller, First Assistant Prosecutor,

argued the cause for respondent (David J. Weaver,

Sussex County Prosecutor, attorney; Laura L.

Nazzaro, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, first in municipal court, and then on appeal to the Law Division at the conclusion of a trial de novo. The only defense offered was pathological intoxication, and on this appeal defendant's only claim is that the Law Division erred in failing to find that defendant had proved the defense of pathological intoxication by clear and convincing evidence.

The relevant facts may be briefly summarized. On March 10, 2009, defendant decided to commit suicide by taking a large quantity of phenobarbital pills. He drove to Great Gorge early that morning, parked, and ingested many pills, which caused him to fall asleep in the car. His careful research had taught him that a sufficient quantity of phenobarbital pills could cause his death. About eighteen hours later, a Great Gorge Village security guard came upon the car, tapped on one of its windows because Newell appeared to be sleeping, and told him to move the car. Newell complied but ran his car up over a curb. A police officer heard the crash and found Newell trying to back the car off the curb. Newell was disoriented, lethargic, and incoherent. Consequently, he was arrested for DWI.

Assuming that the defense of pathological intoxication is applicable to DWI offenses, it requires that defendant prove by clear and convincing evidence that as a result of his intoxication, "at the time of his conduct [he] did not know the nature and the quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." N.J.S.A. 2C:2-8(d). Furthermore, pathological intoxication is defined as "intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible." N.J.S.A. 2C:2-8(e)(3).

Here, defendant clearly knew that he was susceptible to phenobarbital; indeed, he knew it could kill him. Furthermore, although defendant's recollection at trial of the events was somewhat limited, the evidence provided adequate support for the judge's conclusion that defendant was aware of the nature and quality of his acts when he drove his car in an attempt to leave the parking lot. Of course, whether he realized that he was then intoxicated is irrelevant. State v. Hammond, 118 N.J. 306, 315 (1990); State v. Carey, 263 N.J. Super. 377 (App. Div. 1993).