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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1535-17T4






                    Argued November 13, 2019 – Decided January 13, 2020

                    Before Judges Yannotti, Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 15-08-1952.

                    Molly O'Donnell Meng, Assistant Deputy Public
                    Defender, argued the cause for appellant (Joseph E.
                    Krakora, Public Defender, attorney; Molly O'Donnell
                    Meng, of counsel and on the briefs).

                    Regina M. Oberholzer, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Regina M. Oberholzer, of
                    counsel and on the brief).

      Defendant was found guilty of vehicular homicide and other offenses that

arose out of a multiple-vehicle collision, in which one person suffered fatal

injuries and three other persons sustained serious bodily injuries. Defendant

appeals from the judgment of conviction dated October 17, 2017. We affirm.


      On August 5, 2015, an Atlantic County grand jury charged defendant with

second-degree vehicular homicide (count one),  N.J.S.A. 2C:11-5(b); and three

counts of fourth-degree assault by auto while under the influence of an

intoxicating narcotic,  N.J.S.A. 2C:12-1(c)(2) (counts two, three, and four).

Thereafter, the trial court denied defendant's motion to suppress the results of a

sample taken of defendant's blood after the accident. Defendant was then tried

before a jury.

      At the trial, the State presented evidence which showed that on August 30,

2014, at approximately 8:30 a.m., defendant was driving his pick-up truck east

on Route 40 in Hamilton, New Jersey on his way to work. Defendant's truck

veered out of its lane, across the median, and onto the westbound side of the

highway. The truck nearly missed one car before it clipped a box truck and then

hit the rear driver's side of a Volkswagen Jetta, which was being driven by


        The Jetta spun 360 degrees and stopped in the front yard of a house

approximately 100 yards down the road. All of the airbags in the Jetta deployed

and several windows shattered. The driver's door was bent and would not open,

and the grass beneath the car was visible when the door was closed. After the

collision with the Jetta, defendant's truck crashed into the woods and caught fire.

        James Hollander was driving two cars ahead of the Jetta. He testified that

he saw defendant's truck veer across the median and had to "swerve[] out of the

way toward the shoulder" to avoid a collision.          Thereafter, Hollander saw

defendant "clip[]" a box truck and "hit [the car carrying the victims] head -on."

        Darrell Jacobs was driving the box truck. He testified that he observed

defendant's truck cross the median and enter his lane with enough time to correct

itself. Jacobs told one of the responding officers that defendant was sitting

straight up with his hands on the wheel and "appeared to be dazed . . . as the

vehicle swerved towards him."

        Jacobs testified that he felt the impact when defendant's truck struck

"towards the rear" of the box truck. He saw defendant exit his truck and say ,

    We use initials to identify the driver and others to protect their privacy.
"my tools, my tools are gone." Jacobs approached defendant and cursed him

because he seemed concerned only about his tools while people had been injured

in the crash.

         All of the occupants of the Jetta sustained injuries. M.W. had a chest

contusion and abrasions to her eye, arm, and face. G.S. sustained a concussion

and a chest-wall injury, bruising, and pain in her right hip and leg. K.B. suffered

injuries to her chest, back, upper thigh, and abdomen. She said she suffered

from "really bad headaches" for months after the accident. S.W. had a laceration

on her head. A.C. died from the injuries sustained in the collision.

         Defendant was transported to a hospital, where a sample of his blood was

taken.      Analysis of the sample revealed the presence of alprazolam, a

prescription medication commonly known as Xanax, at a concentration of thirty-

five nanograms per milliliter.      Defendant did not have a prescription for


         Defendant presented several witnesses in his defense. The emergency

medical technician who assisted defendant at the scene, and the emergency room

doctor who evaluated defendant at the hospital, testified that he did not seem

impaired. Defendant's sister-in-law stated that defendant did not seem impaired

when she spoke with him for several minutes several hours before the collision.

Defendant's father, a retired police officer, testified that when he arrived on the

scene, defendant "absolutely" did not seem impaired. In addition, defendant

presented testimony from a forensic psychiatrist regarding the effect of


      The jury found defendant guilty on all counts. Defendant was sentenced

on October 17, 2017. He appeals and raises the following arguments:

              POINT I

              [A.] Defendant's Consent Was Tainted By His
              Unlawful Arrest.

              [B.] Defendant's Consent Was Not Freely and
              Voluntarily Given.

              POINT II
              ACCIDENT. (Not raised below).

              [A.] The Trial Court Erred In Permitting the State to
              Introduce    Admittedly    Unreliable     Retrograde
              Extrapolation Evidence.

            [B.] The Trial Court Further Erred By Permitting Dr.
            Brick To Offer Impermissible Lay Opinion Testimony
            As To The Cause Of The Accident.

            POINT III
            REMANDED        FOR       RESENTENCING.

            POINT IV


      We first consider defendant's argument that the trial court erred by

denying his motion to suppress the results of the blood draw. Defendant argues

that his consent to the blood draw was not freely and voluntarily given. He also

argues that his consent was tainted by an allegedly illegal arrest.

      A. Legal Principles Governing Consent to Search.

      The Constitution of the United States and the New Jersey Constitution

protect individuals from unreasonable searches and seizures.          U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. The compelled intrusion into the body for the

purpose of drawing blood to determine its alcohol content is a search under the

Fourth Amendment to the United States Constitution. Schmerber v. California,

 384 U.S. 757, 768 (1966).

      "Warrantless searches are 'prohibited unless they fall within a recognized

exception to the warrant requirement.'" State v. Adkins,  221 N.J. 300, 310

(2015) (quoting State v. Pena-Flores,  198 N.J. 6, 18 (2009)). Consent to search

is, however, an established exception to the warrant requirement. State v. Coles,

 218 N.J. 322, 337 (2014). Consent must be given voluntarily and knowingly; in

New Jersey, the State has the burden to prove the consenting individual knew

he or she had the right to refuse. State v. Domicz,  188 N.J. 285, 308 (2006).

      Whether consent was voluntary is a question of fact to be determined from

the totality of all the circumstances. Schneckloth v. Bustamonte,  412 U.S. 218,

227 (1973). The State must establish the voluntariness and validity of consent

by clear and convincing evidence. State v. King,  44 N.J. 346, 352 (1963).

      The following factors indicate consent was given voluntarily: "(1) that

consent was given where the accused had reason to believe that the police would

find no contraband; (2) that the defendant admitted his guilt before consent;

[and] (3) that the defendant affirmatively assisted the police officers." Id. at

353. (internal citations omitted). On the other hand, the following factors

indicate consent may have been the product of coercion:

            (1) that consent was made by an individual already
            arrested; (2) that consent was obtained despite a denial
            of guilt; (3) that consent was obtained only after the
            accused had refused initial requests for consent to
            search; (4) that consent was given where the subsequent
            search resulted in a seizure of contraband which the
            accused must have known would be discovered; [and]
            (5) that consent was given while the defendant was

            [Id. at 352-53.]

      B. Testimony at the Suppression Hearing.

      Detective Sergeant Christopher K. Gehring of the Hamilton Township

Police Department (HTPD) testified that on August 30, 2014, he was dispatched

to respond to a serious motor vehicle accident on Route 40. Detective Michael

F. Robison and two other officers were already on the scene. Gehring stated

that he spoke with defendant and advised him he required a blood draw.

      Gehring said the department's procedure was to transport the person to a

hospital, read the consent form, and determine whether the person would consent

or refuse to consent. If a person does not consent, he would apply for a search


      Gehring explained the procedure to defendant, who was cooperative and

had no questions. Officer Leo G. Rudolph transported defendant to the hospital.

Gehring followed Rudolph and defendant to the hospital. Defendant was not

under arrest or handcuffed. They went into the emergency room, where the

blood draw would take place. A nurse asked defendant if he was taking any

medications, and defendant said he takes Suboxone.

      Rudolph presented the consent form to defendant and reviewed it with

him. Gehring noted the form explains that the procedure for the blood draw

states that the person has the right to refuse to consent and requires the individual

to sign the form. Gehring said defendant never expressed any concern about

signing the form. Gehring was present when defendant's blood was taken. He

stated that defendant never refused consent before, during, or after the


      Gehring further testified that he questioned defendant about the accident

and defendant was cooperative. Gehring said neither he nor any other officer

used physical force against defendant.       They never used loud or assertive

language. Gehring stated that defendant was never threatened in any way, and

he was not handcuffed during the process.

      Robison testified that he responded to the scene of the accident and was

briefed on the accident. He observed a burned vehicle in the woods. He spoke

with defendant, who said he was "okay" but appeared "visibly upset." Defendant

stated that he had been reaching for something in his truck, and he did not know

what happened.

      Robison told defendant that due to the seriousness of the accident, he was

going to have to go to the hospital and provide a blood sample. Defendant

nodded, indicating "yes." Robison explained that this was the procedure the

department follows after an accident in which there is a fatality or possible

fatality. Robison told defendant he would be presented with a consent form.

      Robison testified that when he discussed the issue of consent, defendant

was not in handcuffs. Robinson did not use any physical force or threats, and

he did not speak loudly or use threatening language. Robison said he did not

hear anyone threaten defendant or see defendant in handcuffs at any time.

      Robison interviewed the driver of the box truck and two other drivers.

They described the accident. They did not see defendant apply his brakes or try

to avoid the other vehicle. Robison stated there was no evidence indicating

defendant applied his brakes or adjusted his tires quickly.

      In addition, Rudolph testified that defendant's truck was on fire when he

arrived on the scene. He spoke with defendant, who explained he had been

reaching for something in the truck and apparently crossed over the center line .

Gehring spoke with defendant and instructed Rudolph to transport defendant to

the hospital for a blood draw. Rudolph's understanding was that defendant was

going willingly to the hospital.

      Rudolph drove defendant to the hospital in a police cruiser. Defendant

was not under arrest or handcuffed. He took defendant to the emergency room

and spoke to the nurse who would be performing the procedure. Rudolph

presented defendant with the written request to withdraw a blood specimen. He

read the form to defendant and presented it to him for his signature.

      Rudolph read the form into the record. The form stated that defendant

consented to having the nurse draw his blood, and he had been advised and

understood he had the right to refuse to consent to the procedure. The form also

stated, "Having been advised of my right to refuse, I consent to this procedure

freely and voluntarily without force or fear, promise or threat."        Rudolph

witnessed defendant sign the form. He stated defendant was "very cooperative."

      C. The Judge's Decision.

      The judge issued a letter opinion dated March 9, 2016, in which he

reviewed the testimony presented at the hearing and found that all three officers

had testified "in a thorough, consistent and reliable manner."          The judge

determined that the State had established that defendant knowingly and

voluntarily consented to have his blood drawn.       The judge found that the

officers' testimony showed that defendant's consent was not the result of any

coerciveness.    The judge noted that defendant indicated his willingness to

consent to the blood draw before he was arrested, and that defendant was


      The judge also noted that defendant's father was a retired police officer,

who had come to the scene of the accident and spoke with defendant before

Gehring arrived. The judge pointed out that defendant was not in custody or

physically impaired when he gave consent. The judge found that Gehring and

Robison had explained the law enforcement procedures to defendant, and while

an officer indicated that a blood draw was required, this statement did not negate

defendant's knowing and voluntary consent.

      The judge then reviewed the factors identified in King,  44 N.J. at 346.

The judge observed that defendant had not been arrested when he provided

consent, the officer did not obtain consent despite an earlier denial of guilt,

defendant never refused any request to consent, and defendant was not

handcuffed.     The judge noted that defendant may have been under the

impression that the blood draw would not reveal the presence of alprazolam, or

that such use would not impair his ability to operate a motor vehicle but gave

little weight to this factor.

      In addition, the judge found that defendant gave his consent knowing he

could refuse consent. The judge pointed out that the word "requirement" had

been used describing the procedures and protocol for obtaining a blood sample,

but defendant knew he had the right to refuse consent because he signed the

consent form, which stated that defendant consented to the search, and he had

been advised of his right to refuse.

      The judge also noted that defendant had admitted responsibility for the

crash before he provided consent. Moreover, defendant assisted the officers by

providing statements regarding the accident at the scene and at the hospital.

      D. Defendant's Arguments.

      On appeal, defendant argues the State failed to establish he voluntarily

consented to the blood draw. He contends his consent was coerced because the

officers told him the blood draw was "required."          However, as we have

explained, the judge provided a thorough review of the totality of circumstances,

reviewed the factors identified in King for determining whether consent is

voluntary, and found that defendant's consent was knowing and voluntary. The

record supports the judge's findings.

      Defendant further argues that his consent was tainted by an allegedly

illegal arrest. Defendant did not explicitly raise this argument at the suppression

hearing, but claims he preserved this issue for appeal because arrest is a factor

in determining whether a consent is voluntary. Although defendant did not

specifically preserve the issue for appeal, we will address his argument.

      It is undisputed that the officer never told defendant he was under arrest

before he consented to the blood draw. He claims, however, that he was subject

to a de facto arrest.

      In addressing this contention, we consider: (1) whether the detention

involved "delay unnecessary to the legitimate investigation of the law

enforcement officers"; (2) "the degree of fear and humiliation that the police

conduct engender[ed]"; (3) whether the person was transported to another

location or isolated from others, and (4) whether the person was handcuffed or

confined to a police car. State v. Dickey,  152 N.J. 468, 479 (1998).

      Here, defendant was involved in an accident with several vehicles,

including a vehicle in which the four occupants were injured. The officers who

responded to the scene understood that one of the victims may have suffered

fatal injuries. The evidence does not support the conclusion that defendant was

unnecessarily delayed by the investigation of the accident. Rather, the record

shows that the officers acted in a reasonable and efficient manner while

conducting a legitimate investigation of the collision.

      Furthermore, there is no evidence showing that defendant suffered fear or

humiliation from any police conduct. As we have explained, defendant rode in

the front seat of the police cruiser to the hospital and he was cooperative.

Defendant's father, a retired officer of HTPD, was present at the scene and

remained nearby while the officers conducted the investigation. There also is

no evidence indicating that defendant was in fear or humiliated during the


      Moreover, the record shows that defendant agreed to go to the hospital for

the blood draw and did so willingly. He was not handcuffed or confined to the

police car. We conclude that under the circumstances, a reasonable person

would not believe an arrest had taken place. We therefore reject defendant's

contention that his consent to the blood draw was tainted by an unlawful arrest.


      We next consider defendant's argument that the trial judge erred by

permitting the State's expert witnesses to present certain testimony at trial.

Defendant did not object to the testimony. Therefore, we consider whether the

judge erred and, if so, whether the error was "clearly capable of producing an

unjust result." R. 2:10-2.

      Defendant argues that forensic toxicologist Ayako Chan-Hosokawa and

Dr. John Brick improperly provided scientifically unreliable retrograde

extrapolation testimony regarding the amount of alprazolam defendant

consumed before the accident.       Defendant contends there is no basis for

retrograde extrapolation analysis for any substance other than alcohol.

      The American Association of Forensic Sciences Standard Boards (ASB)

defines retrograde extrapolation as the "estimation of a drug concentration . . .

at a time other than the time of the sample collection." Association of Forensic

Sciences Standard Boards, ASB Best Practice Recommendation 037, (1st ed.

2019). Here, neither witness provided retrograde extrapolation testimony.

      Indeed, Ms. Chan-Hosokawa specifically stated that she was not providing

such testimony. She testified as to how the concentration of alprazolam in

defendant's bloodstream compared to generally-reported levels from a daily

dose of three-milligrams, based on standard reference-comments in the industry.

She said that in the field of forensic toxicology, it is not generally recommended

to calculate the exact dosage an individual consumed based on the concentration

revealed from a blood draw because doing so would not be exact due to

"difference in our metabolism and all that."

      In addition, Dr. Brick did not offer an opinion as to the level of alprazolam

in defendant's blood at the time of the collision. The doctor estimated the

minimum dosage an individual would have to consume immediately before a

blood draw in order to have a concentration of 35 nanograms per milliliter in his

or her bloodstream.

      He opined that in order to reach such a concentration, a person would have

to administer 2.4 to 3.4 milligrams of alprazolam intravenously. The doctor

used a chart to illustrate a comparison between defendant's blood-alprazolam

concentration in relation to a one milligram dose based on findings published in

generally-accepted literature in the field of pharmacology.

      Defendant did not object to the testimony and did not argue it was not

admissible under N.J.R.E. 702. We conclude the trial court did not err by failing

to preclude the testimony of the State's experts sua sponte. Moreover, defendant

has not shown that the admission of the testimony was "clearly capable of

producing an unjust result." R. 2:10-2.

      Defendant further argues that the trial judge erred by permitting Dr. Brick

to offer what defendant claims was an impermissible lay opinion as to the cause

of the accident. Again, we disagree.

      At trial, Dr. Brick testified there was evidence defendant had consumed

alprazolam in an amount that would impair a person's ability to drive. He further

testified that defendant's use of the drug was a substantial contributing factor to

the accident. The doctor stated he was not aware of any other factor that could

have caused defendant to fail to maintain control of his vehicle and keep it

within his lane of travel.

      Dr. Brick's opinions were permissible expert testimony. The doctor did

not opine that defendant had been driving recklessly. Rather, Dr. Brick testified

that defendant's use of alprazolam was a substantial contributing factor in

defendant's failure to maintain control of his vehicle. The doctor's opinion was

based on his knowledge of alprazolam, its potential to impair a person's ability

to drive, and the facts of this case.

      In support of his argument that Dr. Brick's testimony was improper,

defendant relies on State v. Jamerson,  153 N.J. 318 (1998). In Jamerson, the

medical examiner was qualified as a forensic pathologist in a case involving an

auto accident that resulted in two deaths. Id. at 330. The medical examiner

conducted his own investigation of the accident and testified that the deaths were

homicides, defendant was reckless, and defendant's recklessness caused the

deaths. Id. at 339.

      The Court held that the testimony was improper because the medical

examiner testified outside the scope of his expertise and opined the deaths were

reckless homicides rather than accidental killings. Id. at 340-41. Here, Dr.

Brick did not testify beyond the scope of his expertise, and he did not offer any

opinions on the ultimate issue of whether defendant had driven recklessly. Thus,

defendant's reliance on Jamerson is misplaced.


      Defendant further argues his sentence is excessive. He also contends the

judge erred by imposing a twenty-year license suspension.

      When reviewing a sentence imposed by the trial court, we apply a

"deferential" standard of review. State v. Fuentes,  217 N.J. 57, 70 (2014). We

will "not substitute [our] judgment for that of the sentencing court." Ibid.

      We must uphold the trial court's sentencing decision unless: (1) the court

did not comply with the sentencing guidelines; (2) the court's findings on the

aggravating and mitigating factors were not based upon competent and credible

evidence in the record; or (3) "the application of the guidelines to the facts of

[the] case makes the sentence clearly unreasonable so as to shock the judicial

conscience." Ibid. (quoting State v. Roth,  95 N.J. 334, 364-65 (1984)).

      Here, the judge found aggravating factors three and nine,  N.J.S.A. 2C:44-

1(a)(3) (risk that defendant will commit another offense), (9) (need to deter

defendant and others from violating the law). The judge also found mitigating

factor seven,  N.J.S.A. 2C:44-1(b)(7) (defendant has no prior history of

delinquency or criminal activity). The judge found that the aggravating factors

outweighed the sole mitigating factor.

      The judge sentenced defendant on count one (vehicular homicide) to seven

years of incarceration, with an 85% period of parole disqualification, pursuant

to the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2. On counts two, three,

and four (assault by auto while intoxicated), the judge sentenced defendant to

three 365-day prison terms, each to run consecutively to each other. In addition,

the judge found defendant guilty on three motor vehicle summonses, dismissed

a fourth summons, and imposed a twenty-year license suspension. The judge

also imposed appropriate fines and penalties.

      On appeal, defendant argues the judge erred by finding aggravating factor

nine. He contends the prison sentence imposed should be sufficient to deter him

from committing any future offenses. We note, however, that at sentencing,

defendant conceded this factor was applicable.

      In any event, the judge found there was a need to deter defendant and

others from violating the law. The judge noted that defendant had admitted

longstanding substance abuse. In addition, the record shows that defendant was

arrested in 2016 for driving under the influence of Suboxone while on release

pending the trial in this matter. There is sufficient evidence in the record to

support the judge's finding of aggravating factor nine.

      In addition, defendant contends the judge erred because he did not find

mitigating factor nine,  N.J.S.A. 2C:44-1(b)(9) (defendant's character and

attitude indicate it is unlikely he will commit another offense). We disagree.

The evidence supporting the finding of aggravating factor nine also supports the

judge's conclusion that mitigating factor nine did not apply.

      Defendant further argues that the judge erred by failing to find mitigating

factor eleven,  N.J.S.A. 2C:44-1(b)(11) (defendant's incarceration would entail

excessive hardship to defendant or his dependents). Defendant asserts that he

was actively involved in the lives of his children and worked sixty hours per

week to support his family.

      The judge noted, however, that any term of incarceration will cause

defendant some hardship, and there was no evidence that the hardship to

defendant or his family would be greater than the hardship suffered by any other

person sentenced to a term of imprisonment. The record supports the judge's

conclusion that mitigating factor eleven does not apply.

      Defendant also contends the judge erred by imposing a twenty-year

license suspension. Defendant argues the length of the suspension is excessive.

He maintains the judge erred by failing to conduct an analysis pursuant to State

v. Moran,  202 N.J. 311 (2010).

      In Moran, the Court noted that  N.J.S.A. 39:5-31 permits a municipal court

or Law Division judge to suspend a person's license to drive if the person had

been found guilty of a willful violation of the laws governing the operation of a

motor vehicle. Id. at 315 (citing  N.J.S.A. 39:1-1 to 39:5G-2). The Court stated

that in determining the length of a license suspension to be imposed pursuant to

 N.J.S.A. 39:5-31, a judge should consider

            [T]he nature and circumstances of defendant’s conduct,
            including whether the conduct posed a high risk of
            danger to the public or caused physical harm of
            property damage, the defendant’s driving record,
            including the defendant’s age and length of time as a
            licensed driver, the number, seriousness, and frequency
            of prior infractions, whether the defendant was
            infraction-free for a substantial period before the most
            recent violation or whether the nature and extent of the
            defendant's driving record indicates that there is a
            substantial risk that he or she will commit another
            violation; whether the character and attitude of the
            defendant indicate that he or she is likely or unlikely to
            commit another violation; whether the defendant's

            conduct was the result of circumstances unlikely to
            recur; whether a license suspension would cause
            excessive hardship to the defendant and/or dependents;
            and the need for personal deterrence.

            [Id. at 328-29.]

      Here, the judge did not impose the license suspension under  N.J.S.A. 39:5-

31. Rather, the license suspension was imposed pursuant to  N.J.S.A. 2C:11-

5(c)(5), which permits a suspension from five years to life. Moreover, the record

supports the court's imposition of a twenty-year license suspension.

      As we have explained, defendant ingested alprazolam, for which he did

not have a prescription, in an amount that would impair his ability to drive. He

then drove his truck, failed to maintain his lane, and caused a collision that

resulted in the death of one individual and injuries to three other persons.

Moreover, while on release pending trial in this case, defendant was charged

with driving under the influence of Suboxone.

      In addition, defendant's pre-sentence report includes his driving abstract,

which shows that defendant's license had been suspended five times between

1994 and 2005. The abstract also shows that defendant had been stopped twice

in 2005 for driving while his license was suspended. We are convinced the

twenty-year suspension was not a mistaken exercise of discretion.



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