Opinion
DOCKET NO. A-2791-14T3
07-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH ARCE, Defendant-Appellant.
Ronald S. Fava, attorney for appellant. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 6027. Ronald S. Fava, attorney for appellant. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Joseph Arce appeals from a January 29, 2015 Law Division order, entered after a trial de novo on an appeal from the Clifton Municipal Court, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; DWI within 1000 feet of a school, N.J.S.A. 39:4-50(g); and failure to produce an insurance card, N.J.S.A. 39:3-29. Defendant was sentenced to one day in jail, a one-year license suspension, a twelve-hour program at the Intoxicated Drivers Resource Center, and payment of fines and penalties. Following our review of the arguments advanced on appeal and in light of the record and applicable law, we affirm.
I.
We discern the following facts and procedural history from the record. On September 3, 2013, at around 11:30 p.m. Clifton police officers observed a motor vehicle being driven in an erratic manner, effectuated a motor vehicle stop in the parking lot of a restaurant, and determined that defendant was the driver of the vehicle. Officers interacted with defendant and observed that he appeared very confused. An officer saw a bottle of pills on the passenger seat without a label on it, and determined the pills were Ambien. Defendant advised the officers that the pills belonged to his mother.
The vehicle was within a 1000 foot radius of a school.
Defendant did not produce an insurance card or registration in response to an officer's request. He was directed to exit the vehicle and, as he did so, it lurched forward because he had not placed the vehicle in park.
Defendant placed the vehicle in park, stumbled as he exited, and used the vehicle for support. He answered questions posed by the officers in a nonresponsive manner, appeared confused, and was wearing pajamas. The officers believed defendant was under the influence of alcohol or another substance and directed that he perform field sobriety tests. Defendant performed poorly on the tests, and the officers arrested defendant for DWI.
Defendant was transported to headquarters where he was asked a series of questions from a Drinking Driving Questionnaire. He said he was not sick, was not currently taking any medication, was not injured, did not have diabetes, that he ate rice, beans, and chicken for dinner at 9:00 p.m., and did not consume alcohol that night. He also indicated that he was employed as a bail bonds agent and provided his doctor's address and the date of his last visit to the doctor.
Defendant was administered a chemical breath test that yielded a blood alcohol content (BAC) of 0.00%. A police detective trained as a drug recognition expert (DRE) spoke with defendant, noticed that defendant appeared to be falling asleep, and observed defendant perform poorly on additional field sobriety tests. Defendant advised the DRE that he was prescribed Ambien and took an Ambien at 2:30 a.m. prior to falling asleep.
The DRE determined that defendant was under the influence of a central nervous system depressant, Ambien, which made it improper for him to operate a motor vehicle. Defendant provided a urine sample which tested positive for Zolpidem, which is the generic name for Ambien. The DRE testified that Ambien was a medication for individuals who have difficulty falling asleep, and that defendant's behavior was consistent with his statement that he took an Ambien.
Defendant testified that on September 3, 2013, he lived with his mother in Clifton, that at around 7:00 p.m. he ate rice, beans, and chicken for dinner, and that he put on his pajamas, took an Ambien, went to sleep around 9:00 p.m., and woke up in a jail cell. Defendant acknowledged some of the answers he provided in response to the officers' questions were inaccurate and testified that he had no recollection of the events occurring between the time he went to sleep and the time he woke up in the cell.
Defendant explained that he had been prescribed Ambien for the previous nine years by Dr. Imad, who defendant saw very frequently. Defendant initially testified that he stopped taking the medication in February 2013, because the doctor told him to do so. However, on cross-examination, defendant said that he stopped taking the medication because of Ambien's addictive effects. After he stopped, he experienced withdrawal symptoms about which he was aware from the warning label, but did not contact his doctor.
When defendant began taking Ambien, he was informed by Imad concerning the possible side effects of the medication, which were also listed on the bottle. Defendant denied that Imad advised him about the specific side effect of sleep-driving.
Defendant acknowledged the Ambien pill bottle label contained warnings about sleep-walking and sleep-driving. He testified that, despite the warnings, he did not take steps to prevent himself from sleep-driving after taking the medication, such as giving his car keys to his mother. Defendant also provided contradictory testimony that he was not aware that one of Ambien's side effects was sleep-driving, and was only aware he should not drink alcohol while taking the medication.
Defendant testified that he had trouble sleeping in September 2013. He voluntarily took an Ambien on September 3, 2013, without consulting with his doctor.
Dr. Gary Lage testified for the defense as an expert on the toxicology of Ambien and its side effects. Lage testified that sleep-driving is a side effect of Ambien. Lage explained that sleep-driving occurs when an individual takes an Ambien, goes to sleep, drives a car while sleeping, and has no recollection of the events after awakening.
Lage testified that a person who experiences sleep-driving is asleep and "incapable of making conscious thought," and his or her actions are not voluntary. Lage stated it would be unusual for a person who is sleep-driving to remember doing so, and that an individual who sleep-drives as a result of taking Ambien would not know the nature and quality of his or her actions.
Lage stated that in 2007, the Federal Drug Administration (FDA) directed manufacturers to provide pharmacists and doctors with warnings that a side effect of Ambien is sleep-driving. According to Lage, the FDA directive did not require distribution of the warnings to patients. Lage was unaware if defendant was provided with the warnings with his prescriptions. Lage reviewed defendant's prescriptions for Ambien from two different pharmacies, and noted that defendant was prescribed a ten milligram dosage, which he described as standard.
Lage opined that on September 3, 2013, defendant was sleep-driving as a side effect of Ambien, defendant's actions were not voluntary, and he did not consciously drive. On cross-examination, however, Lage acknowledged that defendant was aware he was driving because he was observed by the officers swerving his vehicle to avoid hitting another car.
Lage testified that defendant was intoxicated on September 3, 2013, as a result of taking Ambien and that defendant's intoxication was excessive given the dosage and defendant's previous history of consumption. Lage testified that defendant was "pathologically intoxicated."
After the presentation of evidence, the municipal court judge found the testimony of the officers to be credible and concluded that defendant operated his motor vehicle while under the influence of a narcotic substance, Ambien. The court found that the FDA warnings concerning sleep-driving were issued before the incident, and rejected as incredible defendant's testimony that he was not aware of the warning because defendant had been taking the prescription for a long period of time and it was prescribed by a physician he saw regularly.
The court found incredible defendant's testimony that he had not discussed the sleep-driving side effect of Ambien with his doctor and that defendant did not read the warnings on the documentation that is given when a prescription is filled. Furthermore, the court rejected defendant's affirmative defense of pathological intoxication, relying on State v. Hammond, 118 N.J. 306 (1990).
The municipal court found defendant guilty of DWI in violation of N.J.S.A. 39:4-50, careless driving, N.J.S.A. 39:4-97, DWI within 1000 feet of a school zone, N.J.S.A. 39:4-50(g), and failure to produce an insurance card, N.J.S.A. 39:3-29. The court merged the careless driving charge into the DWI charge, and the DWI charge into the DWI within 1000 feet of a school zone charge, and imposed sentence.
Defendant appealed his convictions to the Law Division, which on January 29, 2015 conducted a de novo trial on the record generated in the municipal court. Defendant did not dispute that he drove his vehicle while under the influence of Ambien. He urged the court to find him not guilty, arguing that the Ambien rendered his actions involuntary, there was an absence of a requisite actus reus, and defendant was pathologically intoxicated.
The Law Division judge also found defendant's testimony incredible that he was not aware that one of the side effects of Ambien was sleep-driving based upon defendant's frequent interactions with his doctor and the FDA warnings issued after 2007. The court noted that driving while intoxicated, N.J.S.A. 39:4-50, is a strict liability offense and therefore rejected defendant's defenses. The judge found defendant guilty of the offenses for which he was convicted in the municipal court and imposed sentence. The court stayed the imposition of sentence pending appeal. This appeal followed.
On appeal, defendant argues:
POINT I:
THE LAW DIVISION LACKED EVIDENCE TO SUPPORT ITS FINDINGS.
POINT II:
THE LAW DIVISION IMPROPERLY REJECTED THE COMMON LAW DEFENSE OF LACK OF ACTUS REUS IN THIS CASE.
POINT III:
THE LAW DIVISION FAILED TO ADDRESS THE ISSUE OF CONSCIOUSNESS.
POINT IV:
THE LAW DIVISION COMMITTED PLAIN ERROR BY REJECTING THE DEFENSE OF PATHOLOGICAL INTOXICATION.
II.
On an appeal taken from the Law Division's final decision, "[o]ur review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). This requires "'consideration of the proofs as a whole,' and not merely those offered by the defendant." State v. Kuropchak, 221 N.J. 368, 383 (2015) (quoting Johnson, supra, 42 N.J. at 162). "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid. (alteration in original) (quoting R. 2:10-2). Like the Law Division, we defer to credibility findings made by the trial court. Id. at 382. We review the Law Division's interpretation of the law 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).
Defendant first argues that there was insufficient evidence supporting the Law Division's finding that prior to September 3, 2013, defendant received information from his pharmacists warning that sleep-driving was a side effect of Ambien. We disagree.
Defendant does not claim that any other finding of fact by the court was not supported by sufficient credible evidence in the record.
The trial evidence supports the court's finding because Lage testified that commencing in 2007 doctors and pharmacists received warnings concerning the side effect of sleep-driving, defendant frequently saw Imad following 2007, and defendant obtained the Ambien by filling prescriptions from at least two separate pharmacies. Moreover, defendant testified that he received and read warnings about sleep-driving on the labels for his Ambien prescriptions. We are therefore convinced there is sufficient credible evidence in the record supporting the court's finding that prior to September 3, 2013, defendant had received information from his pharmacists that sleep-driving was a side effect of Ambien, defendant had reviewed it, and he was aware of the possible side effect.
The court also rejected Lage's testimony that pharmacies were not required to provide written warnings regarding Ambien's side effects to patients such as defendant, finding that distribution of such warnings is mandated by federal regulation, 21 C.F.R. 208.24. --------
We also reject defendant's contention that the Law Division incorrectly rejected his "common law defense of lack of actus reus" and otherwise failed to "address the issue of consciousness." Based upon the evidential record and the applicable law, we are satisfied the court considered and properly rejected defendant's arguments.
Under the Criminal Code,
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act . . . . A bodily movement that is not a product of the effort
or determination of the actor, either conscious or habitual, is not a voluntary act within the meaning of this section.However, "the provisions of the Code governing principles of liability are not applicable" to violations of the motor vehicle provisions, including "driving while intoxicated under N.J.S.A. 39:4-50." Hammond, supra, 118 N.J. at 318.
[N. J.S.A. 2C:2-1(a).]
In Hammond, the Court overturned our reversal of a DWI conviction and rejected our determination that the voluntary act requirement of N.J.S.A. 2C:2-1(a) supported an involuntary intoxication defense to a DWI charge. Id. at 310-11, 319. The Court stated that our application of the provisions of the criminal code to DWI offenses was in part based upon an effort to avoid a construction that rendered DWI a strict liability offense. Id. at 314. In reversing our reliance upon the Code provisions, the Court found that DWI "has generally been considered an absolute liability offense requiring no culpable mental state, including knowledge of one's intoxication." Ibid.
Under our DWI law, "it is the objective state of intoxication that is crucial, provided intoxication is correlated with the operation of the motor vehicle." Id. at 315 (citing State v. Downie, 117 N.J. 450, cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed. 2d 38 (1990), and State v. Tischio, 107 N.J. 504 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988)). "[O]nce 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." Ibid.
In rejecting involuntary intoxication as a defense to a DWI charge, the Hammond Court found that "[t]he 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 316.
We are not persuaded by defendant's assertion that we should recognize the common law defense of actus reus as a defense to a DWI charge. The argument is inconsistent with the Court's holding in Hammond. N.J.S.A. 2C:2-1(a) incorporates the voluntary act, or actus reus, requirement into the Code but as noted, the Court in Hammond expressly rejected reliance upon the voluntary act requirement in the statute as a basis for a defense to a DWI charge. Defendant's effort to relabel the voluntary act requirement of N.J.S.A. 2C:2-1(a) as a common law defense of a lack of actus reus does not warrant a result different than that reached by the Court in Hammond.
Although we recognize that "[c]ommon-law defenses may be available [to motor vehicle offenses] as long as they have not been precluded by the statute defining the offense," State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002) (quoting State v. Fogarty, 128 N.J. 59, 70 (1992)), the Court in Hammond determined that the absence of a voluntary act caused by involuntary intoxication, such as that claimed by defendant here, is not a defense to a DWI charge. Hammond, supra, 118 N.J. at 313-14.
In Romano we noted that the "common-law insanity defense was not available to defendants charged with drunk driving." Romano, supra, 355 N.J. Super. at 30 (citing State v. Inglis, 304 N.J. Super. 207, 211 (Law Div. 1997)). Similarly, the Court in Fogarty rejected the defense of "quasi-entrapment" to a DWI charge, Fogarty, supra, 128 N.J. at 66-67, and the Hammond Court specifically rejected application of the "involuntary intoxication" defense to a DWI charge. Hammond, supra, 118 N.J. at 318.
In Romano, we recognized the common law defense of necessity was cognizable to the defendant's DWI charge because "the 'facts [were] so bizarre and remote from the public policy underlying the law that even a [c]ourt as committed as this one to the strict enforcement of the drunk-driving statutes can pause to make certain that no injustice has been done.'" Id. at 33 (second alteration in original) (quoting Fogarty, supra, 128 N.J. at 74 (Stein, J., dissenting)). We distinguished our holding in Romano from the holdings in Inglis, Fogarty, and Hammond, stating that "[i]n each of those cases, the defendants were partially responsible for creating the situation which gave rise to the harm to be avoided." Id. at 32.
We are satisfied that Romano is inapplicable here for the additional reason that defendant was "partially responsible for creating the situation which gave rise to the harm to be avoided." Ibid. As noted, the evidence established that defendant voluntarily ingested the Ambien on the night of September 3, 2013, after months of not taking the prescription, without consulting with his physician, with prior warning that a side effect was sleep-driving, and without taking any action to prevent his access to a motor vehicle.
Defendant also argues that the court failed to address the issue of consciousness. Whether defendant was consciously aware of his actions after voluntarily consuming the Ambien is not relevant for purposes of sustaining a DWI conviction. Hammond, supra, 118 N.J. at 315 ("[I]t is the objective state of intoxication that is crucial" to a drunk driving charge.); see Fogarty, supra, 128 N.J. at 67 ("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. Federico, 414 N.J. Super. 321, 326-27 (App. Div. 2010) ("DWI is an absolute liability offense."). We are satisfied the Law Division was not required to address defendant's consciousness because defendant's conduct imposed liability under N.J.S.A. 39:4-50 regardless of "whether [defendant] realized [he] [was] intoxicated." Hammond, supra, 118 N.J. at 315.
We also reject defendant's assertion that the Law Division erred in rejecting defendant's defense of pathological intoxication. "Pathological intoxication" is "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). Pathological intoxication, along with intoxication that is not self-induced, is within the category of involuntary intoxication under N.J.S.A. 2C:2-8. 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." Hammond, supra, 118 N.J. at 314 (alteration in original) (quoting N.J.S.A. 2C:2-8).
In Hammond, the Court held that "motor vehicle violations are not offenses under the Code of Criminal Justice, and hence the Code's provisions, including the involuntary intoxication defense, do not apply to a defendant charged with operating a motor vehicle under the influence of intoxicating liquor in violation of the Motor Vehicle Act." Id. at 307 (emphasis added). Because pathological intoxication constitutes a form of involuntary intoxication under N.J.S.A. 2C:2-8(d), we discern of no basis to depart from the Court's holding in Hammond and there is nothing in the record supporting a departure from the Court's determination here.
Moreover, were are convinced that even if pathological intoxication was an available defense to DWI, the evidence does not support a finding that defendant was pathologically intoxicated under N.J.S.A. 2C:2-8(e)(3). Defendant acknowledged, and the court found as a matter of fact, that he was aware sleep-driving was a possible side effect of taking Ambien. Defendant therefore knew that he was "susceptible" to sleep-driving as a result of taking the medication. The evidence did not support a finding that defendant clearly and convincingly established he was pathologically intoxicated under N.J.S.A. 2C:2-8(d).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION