NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3283-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SANTOS MORALES,
Defendant-Respondent. ________________________________
Argued September 28, 2017 – Decided October 18, 2017
Before Judges Simonelli, Haas and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 14-11-1205.
Jennifer Paszkiewicz, Assistant Prosecutor, argued the cause for appellant (Scott A. Coffina, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief).
Tamika T. McKoy argued the cause for respondent (McKoy Law Firm, LLC, attorneys; Ms. McKoy, on the brief).
PER CURIAM By leave granted, the State appeals from a March 7, 20171 Law
Division order barring the State from introducing expert testimony
concerning defendant's use of marijuana in this vehicular homicide
case. We reverse.
I.
At approximately 2:30 p.m. on June 24, 2012, defendant was
driving his car westbound on Stage Road in Bass River Township.
According to the driver of a car that was directly behind him,
defendant was driving a few miles under the speed limit and slowed
down as he approached the intersection of Stage Road and Greenish
Road. From behind defendant's car, the other driver saw a woman
driving a motorcycle eastbound on Greenish Road toward the
intersection. Defendant then drove his car through the
intersection to make a left-hand turn, directly across the path
of the oncoming motorcycle, which struck defendant's car on its
right side. The motorcyclist was thrown from her vehicle and
sustained fatal injuries. The driver of the car that was behind
defendant told the police that he saw the approaching motorcycle
and anticipated the collision because defendant turned left just
as the motorcycle entered the intersection.
1 The file stamp on the trial court's order incorrectly states that the order was issued on March 7, 2016.
2 A-3283-16T1 Defendant told the police he had consumed a twenty-two-ounce
bottle of beer and a shot of cognac at approximately 11:00 a.m.
The police charged defendant with careless driving and making an
improper turn. The police also obtained blood samples from
defendant at 4:21 p.m. on the day of the accident. The police
sent the samples to the State Police Laboratory for analysis.
The State Police subsequently forwarded the blood samples to
Dr. Richard D. Cohn, Ph.D., who worked at a private drug-testing
company, for analysis and interpretation. Dr. Cohn has over forty-
five years of experience as a forensic toxicologist and
pharmacologist. He has also been qualified as an expert witness
on the effect of marijuana ingestion on an individual's ability
to drive in hundreds of cases in over twenty-five states, including
New Jersey. Indeed, in an earlier case in the same vicinage where
this accident occurred, the trial judge in this case permitted Dr.
Cohn to testify "that the presence of . . . 15 [nanograms per
milliliter (ng/ml)] of marijuana in one's system is sufficient to
inhibit a person's ability to perform safety sensitive tasks" like
driving a car. State v. Cintron, No. A-1342-11 (App. Div. Sept.
23, 2013) (slip op. at 7).
On November 21, 2012, Dr. Cohn issued a written report stating
that the test of defendant's blood sample revealed defendant's
delta-9-THC (THC) level was 14 ng/ml and his 9-Carboxy-THC
3 A-3283-16T1 (Carboxy-THC) level was 225 ng/ml.2 Dr. Cohn's report explained
that an individual's THC level rises quickly following ingestion
by smoking marijuana, and that peak levels are attained in a few
minutes. The THC level then declines rapidly at first, and then
declines more slowly. After approximately six hours, the
individual's THC level will become undetectable. On the other
hand, Carboxy-THC levels "rise more slowly, and persist longer,
being routinely detectable for approximately [twenty-four] hours."
Dr. Cohn found that defendant's 14 ng/ml THC level in the
blood sample taken almost two hours after the accident was highly
significant. Based on his review of "decades [of] published data
in forensic toxicology," Dr. Cohn opined that a concentration of
THC in a person's blood that is over 10 ng/ml renders the person
"unfit to perform safety sensitive tasks" like driving a car.
Thus, Dr. Cohn stated that defendant's THC level of 14 ng/ml,
combined with his high Carboxy-THC level, meant that defendant had
ingested marijuana "in dosage amounts capable of producing [the
drug's] pharmacological psychoactive effects, and thus, of
2 Dr. Cohn testified that THC is the "active [and hallucinogenic] constituent" and "the psychoactive component of marijuana." Carboxy-THC is the "non-psychoactive constituent." In layperson's terms, the THC level determines how intoxicated the person is, while the Carboxy-THC level indicates when the individual may have ingested the drug.
4 A-3283-16T1 rendering [defendant] unfit to safely operate a motor vehicle on
the highway."3
On November 20, 2014, a Burlington County grand jury indicted
defendant for second-degree vehicular homicide, N.J.S.A. 2C:11-
5(a). In preparation for trial, the State asked Dr. Cohn to
prepare a second written report. In his June 26, 2015 report, Dr.
Cohn again concluded that the THC and Carboxy-THC
concentration found in [defendant's] blood, together with the chronological history regarding the time between the car-motorcycle collision and acquisition of blood, are consistent with and indicative of the recent intake of . . . MARIJUANA in dosage amounts capable of producing its adverse pharmacological effects, and thereby impairing this individual's cognitive faculties and motor skills associated with his performance of safety sensitive tasks.
In other words, the blood marijuana findings constitute an independent cause of impairment, and in the absence of other similarly or more competent causes are (a) corroborative of [defendant's] recent use of toxicologically significant amounts of Marijuana, and (b) high enough (based on the totality of circumstances) to have been causally related to the fatal motor vehicle collision.
[(Emphasis added).]
3 Dr. Cohn's testing did not reveal any "alcohols (including ethyl alcohol) or other volatile intoxicants" in defendant's blood.
5 A-3283-16T1 Defendant thereafter moved to bar Dr. Cohn's expert reports
and testimony at trial, and primarily alleged there was
insufficient evidence to demonstrate that the specimen tested by
Dr. Cohn was the same sample obtained from defendant by the police.
Defendant also complained that Dr. Cohn did not provide copies of
the published data he relied upon to form his opinion. However,
this claim was addressed when the State provided defendant and the
trial court with the supporting documents Dr. Cohn relied on
following the Rule 104 hearing.
Testifying at the Rule 104 hearing, Dr. Cohn again opined
that because defendant had 14 ng/ml THC in his system almost two
hours after the accident, he had used a "sufficient amount of
marijuana to have adversely affected his ability to perform safety
sensitive tasks, including the operation of a motor vehicle safely"
at the time of the accident. Defendant did not call an expert
witness at the hearing to rebut Dr. Cohn's findings and opinions.
After defendant's attorney conducted a short cross-
examination of Dr. Cohn, the trial judge extensively questioned
the State's expert. In response to those queries, Dr. Cohn
reiterated that his opinion was based upon his review of "many"4
4 Dr. Cohn stated that "there's a myriad of . . . published documents in the scientific literature, peer reviewed documents in the scientific literature in both journals, peer review journals
6 A-3283-16T1 published studies "address[ing] the relationship between marijuana
ingestion and driving under the influence."
The judge also questioned Dr. Cohn about the last sentence
of his report, where he summed up his conclusions. In that
sentence, Dr. Cohn wrote that "in the absence of other similarly
or more competent causes, [defendant's THC level] makes it
reasonably certain that [defendant's] controlled substance abuse
was at least casually, if not directly, related to the fatal
crash[.]" (emphasis added). As noted above, Dr. Cohn used the
word "causally" rather than the word "casually" one page earlier
in his report to explain the connection between defendant's
marijuana use and the accident. In response to the judge's
questions, Dr. Cohn testified that his use of the word "casually"
at the end of the report was a mistake, and he had not picked up
this typographical error when he proofread the report.
After considering the parties' post-hearing submissions, the
trial judge rendered a written decision granting defendant's
motion to exclude Dr. Cohn's reports and testimony at trial. The
and in actual texts that discuss the various levels of THC and [C]arboxy-THC in blood and the interpretation therein." In response to the judge's questions, Dr. Cohn confirmed that these studies were "specifically related to driving." Indeed, Dr. Cohn told the judge that "we're not in a situation here where there's an absence of documentable information concerning circulating levels of marijuana and its ability to impair motor and cognitive functions."
7 A-3283-16T1 judge first observed that the Legislature had enacted a statutory
standard providing that a defendant who drives "with a blood
alcohol concentration (BAC) of 0.08% or more by weight of alcohol"
in his or her blood is guilty of driving while intoxicated.
N.J.S.A. 39:4-50(a). However, the Legislature had not yet
established a comparable standard for determining whether a
defendant has driven under the influence of a narcotic drug like
marijuana. Thus, the judge stated that "[t]he present case falls
into the statute's undefined black hole."
The judge then cited several reasons for his determination
that Dr. Cohn's testimony was insufficient to fill the void he
perceived in the statute. Based upon his independent review of
the scientific data that Dr. Cohn marshalled in support of his
expert opinion, the judge opined that "there presently exist no
precise scientific standards for measuring THC's influence on a
person's inability to safely operate a motor vehicle." In support
of this conclusion, the judge referred to his own interpretation
of a "recent report" of the National Academy of Sciences,
Engineering, and Medicine and stated that the committee that
prepared the report "concluded that while there is an increased
risk associated with cannabis use, there are no studies correlating
its use to intoxication or driving while impaired." However, the
judge ignored the report's ultimate conclusion that "[t]here is
8 A-3283-16T1 substantial evidence of a statistical association between cannabis
use and increased risk of motor vehicle crashes[,]" which is
consistent with all of the studies Dr. Cohn considered in
formulating his expert opinion.
The judge also stated that Dr. Cohn's second report lacked
"conviction" and "scientific certainty" because he used the word
"casually" rather than "causally" in the last sentence to explain
the link between defendant's THC level and his unfitness to drive
his car at the time of the accident. The judge noted that Dr.
Cohn testified that he typed "casually" by mistake. However, the
judge rejected that testimony based upon his conclusion that
inserting the word "causally" in the sentence as Dr. Cohn intended
"destroys the entire syntax of the sentence." The judge did not
address Dr. Cohn's correct use of the word "causally" just one
page earlier in the report. This appeal followed.
II.
On appeal, the State argues that the trial judge mistakenly
exercised his discretion by excluding Dr. Cohn's expert testimony.
We agree.
We review a trial judge's decision to exclude expert testimony
for abuse of discretion. Townsend v. Pierre, 221 N.J. 36, 52
(2015). N.J.R.E. 702 governs the admission of expert testimony.
This rule states:
9 A-3283-16T1 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Under N.J.R.E. 702, expert testimony is admissible when: (1) the
intended testimony concerns matters "beyond the ken of the average
juror"; (2) the field in question is at "a state of the art" such
that the expert's testimony is sufficiently reliable; and (3) the
witness has "sufficient expertise to offer the intended
testimony." Kemp v. State, 174 N.J. 412, 424 (2002) (quoting
Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992)).
Dr. Cohn's proposed testimony concerning the effects of
defendant's THC level on his ability to safely operate an
automobile met the first prong of the N.J.R.E. 702 test because
it was obviously "beyond the ken of the average juror." Kemp,
supra, 174 N.J. at 424. The trial judge also found that "Dr.
Cohn's expertise as a toxicologist is evident[,]" thus satisfying
the third prong of the test.
However, the judge found that the second prong of the test
was not met because Dr. Cohn's proposed testimony was not
scientifically reliable. As the Supreme Court held over twenty-
five years ago in Rubanick v. Witco Chem. Corp., a theory of
causation "may be found to be sufficiently reliable [and therefore
10 A-3283-16T1 admissible under N.J.R.E. 702] if it is based on a sound,
adequately-founded scientific methodology involving data and
information of the type reasonably relied on by experts in the
scientific field." 125 N.J. 421, 449 (1991).
In determining the soundness of the proposed expert's
methodology, the Court cautioned trial judges not to "directly and
independently determine as a matter of law that a controversial
and complex scientific methodology is sound. The critical
determination is whether comparable experts accept the soundness
of the methodology, including the reasonableness of relying on
this type of underlying data and information." Id. at 451. Thus,
a trial judge should not "independently review[]" the studies
relied upon by the expert, or make his or her own determination
as to scientific reliability of those studies. Ibid. Instead,
"[t]he proper inquiry is whether comparable 'experts in the field
[would] actually rely' on that information." Id. at 452
(alteration in original) (quoting Ryan v. KDI Sylvan Pools, Inc.,
129 N.J. 276, 289 (1990)).
More recently, the Court reiterated that while trial judges
should "act as gatekeepers to the proper admission of expert
testimony, we do not expect [them] to investigate sua sponte the
extent to which the scientific community holds in esteem the
particular analytical writings or research that a proponent of
11 A-3283-16T1 testimony advances as foundational to an expert opinion." Hisenaj
v. Kuehner, 194 N.J. 6, 16 (2008) (citing Rubanick, supra, 125
N.J. at 451). Instead, the Court stated that "[i]t falls to the
parties at trial, who are positioned best to gather and analyze
the viability of an expert's proffered testimony, [and] to
highlight the strengths and shortcomings of the foundation for
that testimony so that the trial court can reach an informed
admissibility decision." Ibid.
Applying these principles, we conclude the trial judge
mistakenly applied his discretion in finding that Dr. Cohn's
proposed testimony did not meet the second prong of the N.J.R.E.
702 test. Dr. Cohn's opinion that a person who has over 10 ng/ml
of THC in their blood may not safely operate an automobile was not
based on new or novel scientific theories, methodologies, or
studies. As Dr. Cohn testified, his opinion was derived from
information contained in "decades [of] published data in forensic
toxicology" as viewed through the lens of his significant expertise
in this highly specialized field.
In addition, Dr. Cohn previously provided similar expert
testimony in hundreds of cases across the country, including New
Jersey. The defense did not provide any expert testimony of its
own to contradict Dr. Cohn's opinions.
12 A-3283-16T1 In determining that Dr. Cohn's opinion was nevertheless not
scientifically reliable under N.J.R.E. 702, the judge mistakenly
conducted his own independent search of the scientific literature
and focused on a single study which he believed contradicted Dr.
Cohn's opinion. By doing so, the judge failed to follow the
Supreme Court's admonitions in Rubanick and Hisenaj that trial
courts should leave the gathering of scientific research to the
parties. Moreover, the study the judge relied upon actually
concluded that "[t]here is substantial evidence of a statistical
association between cannabis use and increased risk of motor
vehicle crashes."
The judge's remaining criticisms of Dr. Cohn's expert report
are also unavailing. The judge correctly noted that N.J.S.A.
39:4-50 permits the State to establish a prima facie case that a
driver is driving under the influence of alcohol if the driver's
BAC is .08% or higher, but does not set a comparable standard for
cases where the driver is under the influence of marijuana.
However, this observation is of no moment because even in the
absence of a blood test, the State has always been permitted to
submit lay and expert testimony on the issue of whether a driver
was under the influence of a drug. State v. Bealor, 187 N.J. 574,
585-86 (2006). Indeed, the Court has stated that "expert testimony
13 A-3283-16T1 remains the preferred method of proof of marijuana intoxication."
Id. at 592.
Finally, Dr. Cohn's opinions were stated in terms that were
sufficiently "certain" and "definitive" to allow their admission
in evidence at trial. Dr. Cohn's first report clearly stated that
the THC levels found in defendant's blood rendered him "unfit to
safely operate a motor vehicle on the highway." In his more
detailed, second report, Dr. Cohn opined that defendant's THC
level was "high enough (based on the totality of circumstances)
to have been causally related to the fatal motor vehicle
collision." Dr. Cohn's testimony at the Rule 104 hearing was
stated with equal conviction.
The judge's contrary conclusion was based upon his finding
that Dr. Cohn intended to opine there was only a "casual"
connection between defendant's drug use and the accident, based
upon Dr. Cohn's use of the word "casually" instead of "causally"
in the last sentence of his second report. We normally defer to
a trial judge's credibility findings because trial judges have the
opportunity to see and hear the witnesses testify. State v.
Locurto, 157 N.J. 463, 470-71 (1999). However, where a judge's
finding is "so wide of the mark that a mistake must have been
made[,]" we do not apply the same deference. N.J. Div. of Youth
& Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting C.B.
14 A-3283-16T1 Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65,
69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Here, the judge made no mention of the fact that Dr. Cohn's
use of the word "casually" in the last sentence of the report was
completely inconsistent with his testimony throughout the hearing
that there was a causal connection between defendant's THC level
and the accident. He also failed to mention that Dr. Cohn had
specifically used the word "causally" just one page earlier in the
report to describe the correlation between defendant's ingestion
of marijuana and the fatal collision. Thus, we are constrained
to reject the judge's finding on this point.
In sum, the judge mistakenly barred the State from presenting
the expert testimony of Dr. Cohn at trial. We therefore reverse
the judge's decision and remand for appropriate proceedings.
Reversed and remanded. We do not retain jurisdiction.
15 A-3283-16T1