NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1535-17T4
STATE OF NEW JERSEY,
NICHOLAS F. GARREFFI,
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:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT’S MOTION TO SUPPRESS THE
BLOOD DRAW BECAUSE HIS CONSENT WAS
TAINTED BY HIS UNLAWFUL ARREST AND WAS
NOT FREELY AND VOLUNTARILY GIVEN.
[A.] Defendant's Consent Was Tainted By His
[B.] Defendant's Consent Was Not Freely and
THE TRIAL COURT ERRED IN A) PERMITTING
THE STATE TO INTRODUCE SCIENTIFICALLY
UNRELIABLE RETROGRADE EXTRAPOLATION
TESTIMONY AND B) PERMITTING DR. BRICK TO
TESTIFY ABOUT THE ULTIMATE CAUSE OF THE
ACCIDENT. (Not raised below).
[A.] The Trial Court Erred In Permitting the State to
Introduce Admittedly Unreliable Retrograde
[B.] The Trial Court Further Erred By Permitting Dr.
Brick To Offer Impermissible Lay Opinion Testimony
As To The Cause Of The Accident.
IN THE ALTERNATIVE, THE MATTER MUST BE
REMANDED FOR RESENTENCING.
DEFENDANT’S SENTENCE IS EXCESSIVE
BECAUSE THE TRIAL COURT ERRONEOUSLY
FAILED TO FIND MITIGATING FACTORS 9 AND
11, IMPROPERLY FOUND AGGRAVATING
FACTOR 9, AND FAILED TO ADEQUATELY
WEIGH THE AGGRAVATING AND MITIGATING
DEFENDANT'S TWENTY-YEAR LICENSE
SUSPENSION IS MANIFESTLY EXCESSIVE.
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
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.