STATE OF NEW JERSEY v. JAMES ZELLERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES ZELLERS,

Defendant-Appellant.

_______________________________

June 16, 2014

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-056.

Francis P. Crotty, attorney for appellant.

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

In a trial de novo before the Law Division, defendant James Zellers was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, following his retraxit guilty plea. He was sentenced to seven months suspension of his driving privileges; twelve hours of instruction through the Intoxicated Driver Resource Center; ordered to install and use an ignition interlock device for six-months; and required to pay applicable fines, penalties and court costs. On appeal, he raises these points for our consideration:

POINT ONE

THE DEFENSE OF PATHOLOGICAL INTOXICATION IS AVAILABLE TO A DEFENDANT IN A D[W]I CASE.

POINT TWO

THE DEFENSE OF PATHOLOGICAL INTOXICATION IS AVAILABLE TO THE DEFENDANT IN THIS CASE.

POINT THREE

THE DEFENDANT IN THIS CASE HAS ESTABLISHED THE DEFENSE OF PATHOLOGICAL INTOXICATION.

We reject defendant's legal contentions and affirm.

The facts in this matter are not disputed and taken from the arresting officer's report, which had been stipulated to and admitted into evidence. On September 7, 2010, the Montville Township Police Department (MTPD) received a 9-1-1 call from truck driver Nancy Owens, who observed a silver dually pick-up truck1 driving erratically on Route 287, that "almost caus[ed] an accident[.]" Owens reported the truck left the highway, taking Exit 47 to Montville.

MTPD Officer Jason Blustein was dispatched. In searching the area, he entered the Exxon gas station and Tiger Mart on Route 202, located approximately 300 yards from the identified exit. Officer Blustein saw a silver Dodge dually pick-up truck matching Owen's description parked at the Tiger Mart. He entered the lot positioning his police vehicle to maintain a clear line of sight on the truck. Officer Blustein saw the driver, later identified as defendant, back the truck out of the parking spot, slowly drive toward the other end of the parking lot, pull into another spot without benefit of directional signals, hit the curb causing the truck to slightly bounce backward, and finally come to rest in two parking spaces.

As Officer Blustein called police headquarters for backup, defendant exited his vehicle and headed toward the officer. Officer Blustein instructed defendant to return to his truck. After being told to do so three times, defendant finally complied.

In speaking to defendant, Officer Blustein noted his eyes were watery and bloodshot, his face flushed, his appearance sleepy, and his speech slurred and mumbled. Defendant admitted he had just exited Route 287, coming from his home in Hope on his way to Saddle River. He denied drinking alcohol or using narcotics.

After police backup arrived, Officer Blustein asked defendant to recite the alphabet starting with the letter "H". He did so commencing with the letter "I" and missed letters "W," "X," and "Y." Field sobriety tests were administered. Defendant was first asked to perform the one-legged stand. Officer Blustein provided instructions and demonstrated the test, which required defendant to stand with his feet together, hands at his sides, and lift either leg approximately six inches above the ground, while looking at his feet, and count aloud from one to thirty. Defendant was unable to maintain his balance after reaching three and almost fell. Next, Officer Blustein instructed defendant to perform the heel-to-toe test. He was told to stand with his hands at his side and take nine steps forward, walking in a heel to toe manner, turn 180 degrees to the left on the ninth step, and take nine more steps. Defendant successfully completed this task. Thereafter, the horizontal gaze nystagmus test was administered.2 Concluding defendant was impaired, Officer Blustein read defendant his Miranda3 rights and arrested him for DWI and other offenses.

Another officer at the scene found a bottle of Xanax in the driver side door of defendant's truck. The bottle's label revealed Dr. Eugene A. Cullen had prescribed 0.25 mg Xanax tablets to treat defendant's anxiety. However, inside the bottle were forty-eight blue pills marked "Xanax 1.0 mg," along with two white 0.25 mg pills. Also found in defendant's bag was a clear plastic blue case, containing one blue Lunesta pill and a sample pack of Pristiq, used to treat depression,4 containing three of seven 50 mg pills.

Defendant admitted he had taken one Xanax pill that morning. He also explained the 1 mg pills were from a friend, as he believed a stronger dosage would better help him. Defendant also acknowledged he had taken a Pristiq tablet that morning.

After being transported to the police station, Alcotest results recorded no trace of alcohol. Drug Recognition Expert Sergeant Burns examined defendant and concluded he was under the influence of depressants. Defendant was charged with unlawful possession of certain prescription pills, N.J.S.A. 2C:35-24; careless driving, N.J.S.A 39:4-97; and DWI, N.J.S.A. 39:4-50.

Before the Montville Municipal Court, the parties stipulated the facts as recorded by Officer Blustein in his filed report. Defendant admitted into evidence, without objection, a handwritten note from his treating psychiatrist stating on September 7, 2010, he had been "taking Pristiq for 15 days, which caused panic attacks, insomnia, dizziness, blurred vision, and profuse sweating." The letter also stated defendant ingested "0.25 mg to 1 mg" of Xanax "to calm himself from the panic attack." The doctor's letter acknowledged defendant began his treatment after his arrest and suggested he was "on the road to becoming fully stable."

Defendant moved to dismiss the charges, arguing Officer Blustein lacked probable cause for the stop. The municipal court judge (MCJ) denied the motion, finding the facts demonstrated a rational basis for the valid motor vehicle stop. Defendant also proffered a pathological intoxication defense. See N.J.S.A. 2C:2-8(e)(3). The MCJ neglected to place his findings regarding this issue on the record. On appeal, the Law Division remanded the matter to the MCJ for amplification of his findings and conclusion on this issue.

On remand, the MCJ considered the facts as stipulated in the police report and the letter supplied by defendant's psychiatrist. The MCJ rejected the applicability of a pathological intoxication defense to this matter, concluding defendant was aware the Xanax he obtained from his friend was four times the strength of his prescribed dosage and "the average person should reasonably anticipate" quadrupling the dose of Xanax would "impair essential functions to the detriment of activities such as operation of a motor vehicle." Moreover, the MCJ found defendant had been taking Pristiq for approximately two weeks, making him aware of its affects. Finally, defendant voluntarily ingested the drugs after experiencing a reaction, then drove his vehicle, obviating any claim of unanticipated consequences.

On appeal to the Law Division, defendant claimed error, arguing the affirmative defense of pathological intoxication defeated the DWI charges, generally, and was specifically proven in this case. Following his de novo review, Judge Robert J. Gilson issued a written opinion rejecting application of the defense to the facts presented. He memorialized his conclusions in an October 17, 2012 order from which defendant appeals.

"Where a municipal court judgment has been appealed to Superior Court, we ordinarily review the Law Division judgment under a sufficiency of the evidence standard." State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010). "[T]the Law Division's judgment must be supported by sufficient credible evidence in the record." State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009) (citing State v. Segars, 172 N.J. 481, 488 (2002)). However, when the Law Division is asked to consider interpretation of the law, our review is de novo, without according any special deference to the court's interpretation of the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Pathological intoxication is defined by N.J.S.A. 2C:2-8e(3) as "intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible." Pathological intoxication, along with intoxication that is not self-induced, falls under the category of involuntary intoxication. See N.J.S.A. 2C:2-8(d). Involuntary intoxication "'is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks . . . capacity either to appreciate its wrongfulness or to conform his conduct to the requirement of law.'" State v. Hammond, 118 N.J. 306, 314 (N.J. 1990) (quoting N.J.S.A. 2C:28).

In Hammond, the Court specifically reviewed whether the defense applies in the context of a DWI charge and concluded it was inapplicable to motor vehicle offenses. The Court stated, "[t]he Legislature has thus made it clear that once drivers become intoxicated and operate a motor vehicle, it does not matter how they became intoxicated or whether they realized they were intoxicated or believed they could overcome the effects of intoxication." Id. at 315. Accordingly, "[a]n interpretation of the statute that would recognize 'involuntary intoxication' as an affirmative defense to drunk driving would disserve broader policy goals." Id. at 318.

It is apparent that if the affirmative defense of involuntary intoxication under N.J.S.A. 2C:2-8 were applied to N.J.S.A. 39:4-50, it would negate or derogate from the standard of objective intoxication. It would allow proof that simply because intoxication is "involuntary," a motorist unable to refrain from driving or to appreciate that it was wrong to drive while so intoxicated could be excused. Yet, it is precisely those conditions -- the inability to stop driving or to evaluate the wrongfulness of driving while drunk -- that the statute seeks to punish. The interjection of "involuntariness" or lack of knowledge as an excuse would be wholly discordant with the liability envisioned by the statute. The application of the involuntary intoxication defense would be anomalous: the more drunk the driver is, the less culpable he or she would be.

[Id. at 315-316 (citations omitted).]

In this matter, defendant's arguments fail to present persuasive factual distinctions differentiating Hammond's holding from his circumstances. Accordingly, we find no basis to deviate from this clear statement of the law.

Here, defendant was under a doctor's care and knew the prescribed medications induced side-effects, some of which he had experienced as he had been taking the combined drugs for more than two weeks. His psychiatrist's letter suggests on the day in question defendant ingested more than the prescribed Xanax dose to counteract the reactions he felt from taking Pristiq. Nevertheless, we need not determine whether defendant was dabbling in self-medication by ingesting a dosage in excess of that prescribed or whether he was mixing prescribed and acquired medications, because the State's evidence shows defendant was familiar with his reaction to the medication, ingested the drugs, became impaired and under their influence, and then drove his truck. Hammond's holding remains dispositive. Therefore, defendant's conduct imposes liability under N.J.S.A. 39:4-50.

"The State need not demonstrate a defendant's culpable state of mind to prove a violation of N.J.S.A. 39:4-50" because "DWI is an absolute liability offense requiring no culpable mental state." State v. Fogarty, 128 N.J. 59, 67 (1992). See also State v. Federico, 414 N.J. Super. 321, 326 (App. Div. 2010) ("DWI is an absolute liability offense[.]"). Consequently a defense negating a state of mind is inapplicable. This interpretation meshes with "the clear legislative and public policy," which "mandated a strict interpretation and rigorous application of the drunk-driving laws." State v. Hessen, 145 N.J. 441, 457 (1996). "We firmly endorse the governmental commitment to the eradication of drunk driving as one of the judiciary's own highest priorities." In re Collester, 126 N.J. 468, 473 (1992).

Defendant's reliance in State v. Romano, 355 N.J. Super. 21 (App. Div. 2002) is misplaced. In Romano, this court examined the applicability of the defense of necessity. Id. at 33. The opinion turns on a unique set of facts not present in this matter.

Following our review, we determine Judge Gilson's findings and conclusions based on the evidence of record, properly rejected defendant's assertion of a pathological intoxication defense as a matter of fact and law. We discern no basis to interfere with that judgment.

Affirmed.

1 A dually pick-up truck has a heavy duty rear end with four wheels on the rear axle, which is designed "to lift and haul more weight than the average pick-up." See http:// duallytruck.org (last viewed May 30, 2014).

2 Defendant does not challenge the methodology or the reliability of the horizontal gaze nystagmus test; but see State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000).

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 See https://www.pristiq.com (last viewed May 30, 2014).