State v. Hammond

• Decision Date: 26 March 1990
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Theodore G. HAMMOND, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 306

118 N.J. 306

571 A.2d 942

STATE of New Jersey, Plaintiff-Appellant, v. Theodore G. HAMMOND, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 6, 1989.

Decided March 26, 1990.

Boris Moczula, Deputy Atty. Gen., for plaintiff-appellant (Peter N. Perretti, Jr., Atty. Gen. of New Jersey, attorney).

Charles J. Casale, Jr., Trenton, for defendant-respondent.

The opinion of the Court was delivered by

HANDLER, J.

The issue presented by this appeal is whether involuntary intoxication, as defined under the New Jersey Code of Criminal Justice, can be a defense to a drunk-driving charge under the State's Motor Vehicle Act. The Motor Vehicle Act prohibits the operation of a motor vehicle "while under the influence of intoxicating liquor, ... or ... with a blood alcohol concentration of 0.10% or more ... in the defendant's blood." N.J.S.A. 39:4-50. The New Jersey Code of Criminal Justice provides generally that intoxication can constitute an "affirmative defense" if it deprives the defendant of the "capacity either to appreciate [the] wrongfulness [of his or her conduct] or to conform his [or her] conduct to the requirements of the law." N.J.S.A. 2C:2-8. We now hold 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.

I.

The defendant, Theodore Hammond, had a small dinner party at his home on May 31, 1985. While he was cooking dinner, a friend, Joe Hovanec, made him a mixed vodka drink, which he drank at about nine o'clock. At dinner, defendant and his three friends shared a bottle of wine, of which defendant testified he drank one and a half to two glasses.

After dinner, Hammond and his friends decided to visit the new home of one of the party, Henry Spence. At Spence's house, at around midnight, defendant asked for some fruit juice. Spence testified that as a practical joke he prepared a mixture of cranberry juice and vodka, concocted in such a way as to disguise any taste of alcohol. Spence stated he learned this trick from bartenders at the restaurant where he worked. Defendant stated that he did not know Spence had put vodka in the juice. He drank two cups of this mixture at Spence's home, and another cup in the car on the way to a bar, consuming approximately ten to twelve ounces of vodka. Defendant testified that he was not "feeling well" at that point, but felt obligated to proceed to the bar since he had agreed to meet Hovanec there. Spence drove Hammond's car to the bar.

According to the defense testimony, at the bar Hovanec bought Hammond a beer which he did not drink. Since Hammond said he felt sick, and Spence had left the bar, Hovanec offered Hammond a ride home. But Hammond refused the ride. At trial, he stated he felt he "was being held together with something.... And if I could get home before I unglued, I'd be okay." Defendant also stated that "it was beginning to storm, and I just had to get home."

At 2:27 a.m. on Route 31 in Hopewell Township, Officer William Reading observed a vehicle that, he reported, was going slowly then suddenly accelerating, braking excessively, drifting between lanes, and using the right turn signal to turn left. At one point the vehicle almost hit a tree, then continued to move erratically. The officer signaled the car to pull over and stop. On exiting the car defendant stumbled, grabbing the car door for support as he fell. The police report indicates that Hammond could hardly walk, had bloodshot eyes, slurred his speech, and smelled of alcohol.

In the ensuing conversation defendant reportedly told the officer he was very sorry, that he had made a mistake, that he does not drink, and that this was a "one time shot" for him. Defendant also told the officer he had had a beer to drink, which contradicts the record, including defendant's own testimony. Breathalyzer test results were .20 at 3:20 a.m., and .21 at 3:28 a.m.

At the Municipal Court hearing, Hammond, Spence and Hovanec testified for the defense. It was stipulated that Officer Reading would have testified to the information contained in the police report. It was further stipulated that an expert witness for the defense, Dr. Zylman, would have testified "that the defendant could ... imbibe 10, 11, or 12 ounces ... (of the cranberry-vodka mixture) over a period of an hour and a half or two hours in separate drinks, without tasting the vodka portion of the drink so as to be aware that the drinks contain an alcoholic beverage."

The court found defendant guilty, giving credence to the police report, as well as defendant's statements to the officer that he had had beer, but discounting as incredulous the testimony that Spence wandered off, letting his friend Hammond drive himself home after having spiked his juice. The court stated further:

[T]here is no question that involuntary intoxication is a defense, and would have applied in this case had the court concluded factually that the defendant consumed this substance without his knowledge.

Hammond was given the statutorily minimum sentence for a violation of N.J.S.A. 39:4-50, including a $250 fine, twelve to forty-eight hours at an Intoxicated Driver Resource Center and loss of his driving privileges for one hundred eighty days. The court stayed the sentence pending appeal.

Defendant appealed his conviction to the Law Division. The court found that the record indicated beyond a reasonable doubt that defendant had operated his vehicle while intoxicated and thus was guilty of violation of N.J.S.A. 39:4-50. The court found there was "no need ... to consider [the argument] ... that the defendant was, in fact, involuntarily intoxicated." The court added, however, that it did not "endorse or accept the Municipal Court's statement ... that involuntary intoxication is a defense to the drunk driving statute."

Defendant again appealed his conviction raising the involuntary intoxication defense, among other issues that are no longer contested. The Appellate Division reversed the judgment of conviction, holding that the involuntary intoxication defense can apply to a violation of N.J.S.A. 39:4-50, and remanding the matter to the Law Division for a retrial consistent with its determination. We granted the State's petition for certification and denied defendant's cross-petition. 114 N.J. 474, 555 A.2d 601 (1989).

II.

In addressing the issue whether involuntary intoxication as defined by the Code can be applied as an affirmative defense to the motor vehicle violation of driving while intoxicated, the Court must determine initially whether a violation of the Motor Vehicle Act constitutes an "offense" within the meaning of the Code of Criminal Justice. If it does, then, as the Appellate Division explained, several provisions of the Code, including the defense of involuntary intoxication, could apply in the prosecution of the DWI offense.

The Appellate Division reasoned as follows:

[I]nvoluntary intoxication [ N.J.S.A. 2C:2-8], theoretically, can be a defense to a DWI charge [in violation of N.J.S.A. 39:4-50]. The statutory basis for such a defense is found in N.J.S.A. 2C:2-1(a). It provides that: "a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. 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." An "offense" is defined as a "crime, a disorderly persons offense or a petty disorderly persons offense ..." N.J.S.A. 2C:1-14(k). Disorderly persons offenses and petty disorderly offenses are characterized by the Code as "petty offenses." N.J.S.A. 2C:1-4(b). Motor vehicle violations in this State are considered to be "petty offenses." Macuk, 57 N.J. 1, 9 (1970); Senno, 79 N.J. 216, 223 (1979). There is no indication in N.J.S.A. 39:4-50(a) that the Legislature intended strict liability to apply simply by proof of operation. Thus, as a matter of elemental fairness, a voluntary act is minimally required to prove culpability. N.J.S.A. 2C:2-2(c)(3). [Slip op. at 10.]

Critical to the Appellate Division's logic is its assumption that a motor vehicle violation is a "petty offense," coming within the Code's definition of an "offense." N.J.S.A. 2C:1-14k. The Code definition of an "offense" in turn invokes N.J.S.A. 2C:1-5(b), which provides: "The provisions of subtitle 1 of the code are applicable to offenses defined by other statutes." These include provisions governing liability, such as N.J.S.A. 2C:2-1 (Requirement of voluntary act), and N.J.S.A. 2C:2-2 (General requirements of culpability), and, according to the Appellate Division, N.J.S.A. 2C:2-8, the so-called "involuntary intoxication" defense.

The Code itself does not actually use the Appellate Division's term, "petty offense." It describes an "offense" only as "a crime, a disorderly persons offense or a petty disorderly persons offense ..." N.J.S.A. 2C:1-14k. In characterizing the motor vehicle violation of drunk driving as a "petty offense" the Appellate Division seized terminology used in earlier decisions: State v. Macuk, 57 N.J. 1, 268 A.2d 1 (1970), and State v. Senno, 79 N.J. 216, 398 A.2d 873 (1979).

In Macuk, the Court held that "Miranda warnings are not required prior to the administration of drunkometer tests," observing "that motor vehicle violations are not 'crimes' in this state, but only petty offenses." 57 N.J. at 16, 268 A.2d 1. In Senno, the Court held that those accused of motor vehicle violations or of petty offenses are not entitled to access to pretrial intervention programs. For these purposes, "disorderly persons offenses and motor vehicle violations are considered petty...