State v. TiernanState v. Tiernan
This is аn appeal from a Municipal Court proceeding finding appellant, Michael A. Tiernan, guilty of operating a vehicle while under the influence of drugs contra to
The facts surrounding the conviction are thus: an officer for the City of North Wildwood observed defendant operating a vehicle on August 7, 1972 at 2:40 in the morning. Defendant‘s car was noticed “to force” another car off the road. Subsequent to the officer‘s approaching and the defendant leaving the car towards the second vehicle, the defendant was unable to satisfy a request for a driver‘s license and registrаtion, saying they were back in the car.
During the time on the police force, the police officer testified that he had seen “hundreds” of persons under the influence of alcohol. In addition, the officer testified to his having seen “a great number” of persons under the influence of controlled dangerous substances. As preparation for this aspect of police work, the officer indicated completion of the mandatory academy training in narcotics as well as a week long narcotics course at Sea Girt, New Jersey. The officer was not a pharmаcologist, nor a doctor, nor qualified to prescribe drugs. During this part of the officer‘s testimony, a salient feature of the case was revealed; that there is a pharmacologist on the Wildwood Police Department whose skills and training are employed in the detection of drug cases throughout Cape May County. No blood, urine or saliva analysis was made.
Upon arrival at police headquarters, a breathalyzer was administered the defendant. The readings indicated at best a negligible amount оf blood alcohol. The defendant was then given a series of Romberg type tests to determine agility, and completed them satisfactorily though cumbersomely. Following the officer‘s testimony as to the failure of defendant‘s eyes to respond to light, defense counsel‘s motion to strike the testimony as being without the province of the officer‘s skill and knowledge, was denied.
The failure to discover sufficient blood alcohol resulted in a change of charges from driving while under the influence of alcohol to driving while under the influence of drugs. The failure to specify the substance producing thе observed effects demonstrates the patent inability of the policeman to discern between an individual under the influence of a narcotic drug and one under the influence of alcohol. There was no report as to a medical examination. Upon the testimony of the officer that defendant must have been under the influence of something, the Municipal Court Judge determined that this something was drugs and found the defendant, Tiernan, in violation of
The court is confronted with two germane and interconnected inquiries. Did the State sustain its burden of proving beyond a reasonable doubt that the defendant was in fact under the influence of a narcotic drug as proscribed by the statute? Is a police officer qualified to testify as to one‘s being under the influence of drugs with no further training than a one week‘s course with no corroborating medical evidence?
An analysis of the statute and the case law development reveals an obvious distinction between the offenses of driving while under the influenec of alcohol and while driving under the influence of drugs although both proscriptions are contained in one statutory provision.
Lister v. England, 195 A.2d 260 (D.C. App. 1963) noted the purpose of creating statutory presumptions of intoxication was to eliminate the necessity of having an expert witness testify. State v. Guerrido, 60 N.J. Super. 505 (1960) arrived at a similar conclusion by explaining that “although examination by a physician or tests to determine intoxication, оr both, are usually given, there is ... no persuasive reason [why] a state of intoxication [under] ... 39: 4-50 cannot factually be established by lay evidence.” There is no skill or experience necessary in such a determination. See State v. Emery, 27 N.J. 348 (1958).
This area of lay opinion, as leading to an inference of intоxication, is carefully scrutinized by the judiciary in order to prevent an overextension, and an incursion into the realm of expert testimony. State v. Siegmeister, supra.
Although the court agrees that lay testimony is admissible as to intoxication, I find no reported decision holding that the presence of drugs and being under their influence is established by other than expert testimony. Furthermore, the brief training period undertaken by the officer is deemed to be insufficient to warrant his qualification as an expert.
Black‘s law dictionary defines expert witnesses thusly, “men of scienсe educated in the art or persons possessing special or peculiar knowledge acquired from practical experience ... One possessing with reference to a particular subject, knowledge not acquired by ordinary persons.”
Likewise, the American Law Institute Modеl Code of Evidence states that a judge may prohibit lay testimony in the form of an opinion including inferences if “to draw such inferences requires a special knowledge, skill, experience or training ...” 2 Criminal Procedure Sourcebook PLI 613 (1942). Rule 402 of that code describes an expert as qualified “if the judge finds that to perceive, know or understand the matters concerning which the witness is to testify requires special knowledge, skill, experience or training” and the witness possesses such characteristics. Ibid. at 614.
New Jersey Rules of Evidence, Rule 56 pertains to the subjects of lay opinion testimony. In the annotated comment accompanying the rule, it is noted “a non-expert may give his opinion on matters of common knowledge and observation.” (emphasis added) Citing Searles v. Public Service R.Y. Co., 100 N.J.L. 222 (Sup. Ct. 1924) an early decision upholding a layman‘s ability to determine intoxication.
In light of lеgislative dictates and judicial rule construction, this court must reach the conclusion that a police officer, absent training of a paramedical status, does not possess the expertise by which to determine the substance, if any, other than alcohol, which seems to have reacted on a defendant‘s physical condition. The court is not impinging on the well recognized police power of the State “to regulate or to bar vehicle operation on the highways by narcotics users.” State v. Smith, 58 N.J. 202, 214 (1971) citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Rather the court seeks to implement the design of the Legislature.
In People v. Vignoli, 213 Cal. App.2d 855, 29 Cal. Rptr. 260 (1963), the court upheld a conviction for operating a motor vehicle while under the influence of drugs following the testimony of a police officer that the defendant was extremely drowsy after his arrest for speeding and driving without a license and marks and scabs were found on defendant‘s arms, one of which appeared recent. There was further testimony by an examining physician that he, too, had nоticed needle marks, one of which, in his opinion was made within the last 6-10 hours. The doctor noted defendant‘s eyes were constricted and on the assumption that there had been no drugs taken since the arrest, he concluded the defendant to have been under the influence of narcotic drugs at the time of the arrest. Great emphasis was placed on the credibility of the physician‘s testimony; the officer‘s testimony being viewed as corroboration. See also People v. Gurrola, 218 Cal. App.2d 349, 32 Cal. Rptr. 368 (1963). People v. Davis, 270 Cal. App.2d 197, 75 Cal. Rptr. 627 (1967) overturned a conviction for driving while under the influence of drugs when there was no expert opinion nor observatiоn that defendant lacked alertness, judgment and coordination needed to operate a motor vehicle.
The case sub judice is devoid of the elements tending to verify a lay opinion. There were no discernible marks about the defendant‘s arms or body, or other recognized indicia of drug use. There was nо proof of deleterious effects on the ability to drive a vehicle. There was no admission by the defendant of any narcotic drug consumption, nor were any drugs found that could be connected with this defendant. No doctor or pharmacologist or other medical, paramedical or scientific person was called in to examine the defendant. In fact, the officer admitted upon cross-examination that the charge of being under the influence of drugs
The court is cognizant of the fact that the defendant was initially аrrested for being under the influence of alcohol. While the charge was changed before trial, it is compelling to note that our sister jurisdiction, Pennsylvania, had prohibited a motorist, acquitted of being under the influence of alcohol, from later being tried for being under the influence of drugs on the same set of facts. Commonwealth v. Bishop, 182 Pa. Super. 151, 126 A.2d 533 (1956). The Pennsylvania statute, 75 P.S. section 1037, reads similar to the New Jersey provision. The import of this decision demonstrates what results when the State has failed to seek the resources at its disposal. Were an examination before trial ordered, the State would have discovered that the defendant was under the influence of drugs. Likewise, in the case at bar, had the Wildwood Police Department pharmacologist been consulted, an examination of the defendant would have shown whether in an expert‘s opinion there was influence of drugs, and not merely base а conviction on speculation.
Dispositive of this situation is State v. Siegmeister, supra. There a defendant driving erratically was stopped by the police. The officer testified that the defendant‘s pupils were dilated, his speech slurred and he lacked coordination. There was no odor of alcohol. (In the case beforе the court, it was described as “very slight“.) Defendant was examined by a physician that same evening, who concluded that the defendant was indeed under the influence of an intoxicating substance. There was, however, no indication as to specific substance.
The court in reversing the conviction for violation of
The aforementioned reasons clearly warrant a reversal of the Municipal Court conviction. The court is emphatic in its opinion that mere lay testimony, standing alone, is insufficient to sustain a conviction for driving while under the influence of drugs. The specificity of the statutory language of
The defendant is found not guilty.