State of New Jersey v. Michael Rowek

• Court: New Jersey Superior Court Appellate Division
• Decided: February 22, 2024
• Docket: A-2507-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 APPELLATE DIVISION DOCKET NO. A-2507-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL ROWEK,

Defendant-Appellant. ___________________________

Argued April 17, 2023 – Decided May 3, 2023 Remanded by the Supreme Court November 21, 2023 Resubmitted January 8, 2024 – Decided February 22, 2024

Before Judges Whipple, Mawla and Walcott- Henderson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 21- 0016.

Timothy J. Foley argued the cause for appellant (Foley & Foley, attorneys; Sherry L. Foley and Timothy J. Foley, on the briefs).

Robert J. Lombardo, Assistant Prosecutor, argued the cause for respondent (Robert J. Carroll, Morris County Prosecutor, attorney; Robert J. Lombardo, on the briefs).

PER CURIAM

Defendant Michael Rowek appealed from convictions for driving while

intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and

possession of a controlled dangerous substance (CDS) in a motor vehicle,

N.J.S.A. 39:4-49.1, after a trial de novo based on the municipal record. We

affirmed as to the driving charges but reversed and vacated as to the possession

charge. On November 20, 2023, the New Jersey Supreme Court granted

defendant's petition for certification and summarily remanded the matter for us

to reconsider in light of State v. Michael Olenowski, ___ N.J. ___ (2023).

Having undertaken that review, we reverse and vacate defendant's DWI

conviction.1

The salient facts are recounted in our earlier opinion, State v. Rowek, A-

2507-21 (App. Div. May 3, 2023). We only repeat what is necessary to address

the issue on remand.

On August 9, 2020, at around noon, defendant struck the left side of a

landscaper's trailer that was parked on the side of a small dead-end street in

1 The conviction for careless driving, N.J.S.A. 39:4-97 remains. A-2507-21 2 Montville Township. The impact caused defendant's SUV to swerve across the

street, onto the front lawn of a nearby house. Defendant's driver's side and front

airbags deployed, and his vehicle tipped up on two wheels. Defendant was not

visibly injured.

Police were summoned. Officer David Chieppa—who later testified at

trial as the State's sole witness—was the first responder. Officer Chieppa

testified he is not a "drug recognition expert," though he claimed to be familiar

with the signs of drug abuse. Officer Chieppa found defendant outside, on the

lawn, in the process of reaching into the SUV to retrieve items. The street was

not crowded and had little traffic; it was sunny outside. He asked defendant for

his driving credentials; defendant complied.

While defendant looked for his credentials, Officer Chieppa noted

defendant was "stumbling and swaying." As their interaction continued, Officer

Chieppa observed defendant's speech was slurred, and he appeared to have a

"sleepy" or "tired and nonchalant" demeanor that did not "fit" the circumstances.

When the officer asked what his destination was, and how he came to hit the

truck, defendant claimed he had been driving to his office in Totowa. He could

not explain why he had decided to turn down a dead-end residential street some

A-2507-21 3 distance from Totowa, or how he hit the truck. Defendant claimed to suffer from

periods where he would lose awareness of himself and "black out."

Based on the officer's limited experience, he suspected defendant was

intoxicated. Upon looking into the car, he saw numerous loose "whole and half"

pills scattered throughout the vehicle. A bag defendant was carrying also

contained numerous prescription bottles, including some labelled "Suboxone,"

which is a prescription narcotic used to treat opioid addiction. Some bottles did

not list the defendant's name. None of the pills were introduced as evidence or

analyzed. Defendant also had a powdery substance on his face and in his nostril,

and a bruise potentially from a hypodermic needle on his right arm.

Officer Chieppa suspected drug use. Defendant claimed the pills were

either prescribed to him by a doctor or that they were dietary supplements. He

claimed at various times to be taking certain medications for depression, as well

as vitamin supplements, Adderall, and a drug called "Bubrieion"—which does

not exist, but may be a mispronunciation of Buprenorphine, a pseudo-narcotic

used to treat opioid use disorder. Buprenorphine is Suboxone's main ingredient.

Defendant agreed to perform a field sobriety test. Defendant stated he

suffered from a back issue and flat feet, which affected his balance. He struggled

substantially performing the tests. He stumbled, frequently swayed, lost his

A-2507-21 4 balance, and had some difficulty complying with directions. Additionally, his

pupils were "pinpoint," which Officer Chieppa testified his experience led him

to believe defendant was intoxicated.

Officer Chieppa took defendant into custody, where he was read his rights

and consented to a number of tests, including an "alcotest" for blood alcohol,

which turned up negative (0.0%). Defendant was also given a urine test for

other substances. However, the results of this urine test were not admitted into

evidence because the expert who analyzed the results was seemingly unavailable

to testify. Defendant was charged, pled not guilty, and the matter proceeded to

trial in the municipal court.

Defendant called his own witness, a neurologist, Dr. Nabil Yazgi. Dr.

Yazgi began treating defendant in December 2020, several months after the

incident in question.

Dr. Yazgi opined defendant sought treatment to address episodes of

"blacking out." The doctor performed a number of neurological tests on

defendant, including an MRI, 2 and reviewed police reports as well as medical

records obtained from Chilton Hospital, where defendant had been admitted on

March 3, 2021. It was the doctor's opinion defendant suffered from "transient

2 Dr. Yazgi stated the MRI came back "within normal limits." A-2507-21 5 ischemic attacks" which led to "transient global amnesia" (TIA and TGA,

respectively). These are circulatory system conditions, which describe a lack of

blood flow to the brain. They are characterized by disorientation, a confused

demeanor, and short-term forgetfulness. When pressed on cross examination as

to whether drug use—like heroin, methamphetamines, and fentanyl could cause

TGA, or present substantially similar effects, Dr. Yazgi admitted they could. He

also disclosed he was aware of defendant's past use of heroin and sleeping pills.

The municipal court delivered its opinion in an oral decision, finding

defendant guilty on all three charges. Upon de novo review, the Law Division

agreed with the municipal court on substantially similar grounds, and sentenced

defendant to an eight-year loss of license, two years ignition interlock, 180 days

jail time, and costs and penalties totaling $1,390.

Defendant appealed, arguing because Officer Chieppa, was not qualified

as a drug recognition expert, and because the State failed to produce any physical

evidence defendant was actually under the influence of a prohibited substance,

the State's case must necessarily fail as a matter of law because it cannot prove—

beyond a reasonable doubt—defendant was in fact intoxicated.

We concluded that while less than overwhelming, the totality of the

circumstances adequately supported a finding there was sufficient corroborative

A-2507-21 6 evidence under State v. Bealor, 187 N.J. 574 (2006), to rely on Officer Chieppa's

lay testimony that defendant was intoxicated. Defendant appealed.

On November 15, 2023, the Supreme Court issued its decision in State v.

Michael Olenowski (Olenowski II), ___ N.J. ___, ___ (2023). In Olenowski I,

the Court adopted a Daubert-like3 standard for determining the reliability of

expert evidence in criminal and quasi-criminal cases. State v. Olenowski

(Olenowski I), 253 N.J. 133 (2023). After the standard determination, the case

was remanded to be reviewed by a Special Master to conclude whether the Drug

Recognition Expert (DRE) protocol satisfied the reliability standard of N.J.R.E.

702.4 Olenowski II then held that Daubert-based expert reliability

determinations would be reviewed de novo, and other expert admissibility issues

would be reviewed under an abuse of discretion standard. Additionally, the

Court found the record substantiated that DRE testimony satisfied the Daubert

standard but implemented four limitations and safeguards.

Though Olenowski II focused largely on DREs, the Supreme Court

reinforced Bealor's holding that testimony on intoxication due to drugs, whether

expert or lay, requires corroborating evidence to be considered. In our earlier

3 Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993). 4 N.J.R.E. 702 codified the Daubert standard. A-2507-21 7 decision on the matter, we concluded—in addition to Officer Chieppa's

observation that defendant was under the influence—the failed field sobriety

test, the powder on defendant's face, and the track mark in his arm, were

sufficient independent proofs to affirm the DWI.

In Olenowski II's discussion of Bealor the Court notes that testimony of

the fact of a driver's intoxication is admissible without expert testimony,

however it does require a sufficient aggregate of proofs to "connect the objective

facts of intoxication with the proven presence of a cause of intoxication."

Olenowski II, ___ N.J. at ___ (slip op. at 14) (quoting Bealor, 187 N.J. at 590-

91). Thus, Olenowski II reiterates that "[i]mpairment instead must be proven by

the State with independent evidence." Id. at ___ (slip op. at 98-99). In

consideration of Olenowski II and Bealor, we now conclude the evidence is not

sufficient and the DWI conviction should be reversed.

In its discussion, the Court addressed Bealor under the DWI statutory

scheme in N.J. Id. at ___ (slip op. at 8). Bealor established that lay persons,

such as Officer Chieppa, could testify that someone was intoxicated, but could

not opine as to the cause of said intoxication when the intoxication is non-

alcohol related. Bealor, 187 N.J. at 577. Though the cause of non-alcohol

intoxication is inadmissible as lay testimony, the State is not required to present

A-2507-21 8 expert testimony. Id. at 591. Essentially, the State must present evidence on a

case-by-case basis sufficient to establish beyond a reasonable doubt that the

defendant, while operating a motor vehicle, was under the influence of drugs.

Id. at 589-91.

Olenowski II reiterated that in DWI cases, "facts of intoxication must be

linked to proofs of the cause of intoxication. For instance, proofs of . . . 'slurred

and slowed speech,' . . . 'droopy eyelids,' . . . 'emotionless stare' may be linked

with physical evidence of an intoxicating drug in the car or in the driver's

control." ___ N.J. at ___ (slip op. 11-12). The Court found that the State must

prove the defendant was intoxicated, and the cause was narcotics, hallucinogens,

or other "habit-producing drugs." Id. at ___ (slip op. 12). Furthermore, in

Bealor the fact that there was a positive marijuana blood test provided the

sufficient, independent evidence to support conviction. Bealor, 187 N.J. at 590.

The lay testimony to the fact of intoxication along with the positive test were

"more than sufficient" to "connect the objective facts of intoxication with the

proven presence of a cause of intoxication." Id. at 590-91; see also Olenowski

II, ___ N.J. at ___ (slip op. 14).

Olenowski II furthered that the State needed to use independent evidence

to support its burden, which included factual observations, driver's admission,

A-2507-21 9 information or observation about recent drug use, or drugs or paraphernalia

found in the vehicle. Olenowski II, ___ N.J. at ___ (slip op. 98-99) (citing

Bealor, 187 N.J. 590-91).

Defendant argues on remand we should apply the twelve step DRE

protocol announced in Olenowski II. However, Olenowski II does not extend

those protocol or guidelines to lay witnesses, otherwise they would have noted

so, since they did discuss lay testimony. Olenowski II, ___ N.J. at ___ (slip op.

at 13). Olenowski II particularly only assesses whether the DRE protocol

satisfied the reliability standard of N.J.R.E. 702, which the Court found it did.

Id. at ___ (slip op. at 12). In the present case, Officer Chieppa was not qualified

as an expert. Therefore, we decline to use the DRE protocol and its limiting

factors to review in this matter.

The primary question is whether Officer Chieppa's observation testimony

was sufficient under Bealor. It is clear under Olenowski II, impairment must be

proven with independent evidence, which can include factual observations of

impaired behavior by the arresting officer. However, observation alone is

insufficient, without independent evidence, and the court would prefer such

evidence to be in the form of toxicology reports or other corroborating evidence

of drug use. Id. at ___ (slip op. 103-04).

A-2507-21 10 With the benefit of the guidance provided by Olenowski II, we now

conclude the evidence the court used to corroborate the DWI, was insufficient

as there was no physical evidence that defendant was under the influence to meet

the State's burden of proof beyond a reasonable doubt. The lack of confirmation

of some physical evidence means that the evidence in the record does not meet

the burden required to support the connecting inferences of an "objective fact[]

of intoxication" and a "presence of a cause of intoxication" to "conclude that

. . . defendant drove while intoxicated." Olenowski II, ___ N.J. at ___ (slip op.

99) (second alteration in original) (quoting Bealor, 187 N.J. at 590-91).

Reversed and vacated. We do not retain jurisdiction.

A-2507-21 11