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J.L.M.
State County Prosecutor
Office of the County Prosecutor J.L.H.
First Assistant Prosecutor
County of State F.P.
Executive Assistant
Prosecutor
CITY, STATE 00000
(555) 555-5555
C.C.
Trial Chief
S.S.
Chief of Detectives
December 2, 20xx
A.C.
Senior Assistant Prosecutor
Of Counsel
C. KEVIN GRIM
Law Intern
On the Letter Brief
LETTER IN LIEU OF BRIEF AND APPENDIX ON BEHALF OF
THE STATE OF STATE
Honorable Judge Josh J. Jones, A.C.C
Superior Court of State, Law Division
State County Justice Center, Room 000
City, ST 00000
Re: STATE OF STATE V. DAN D. DEFENDANT
Municipal Appeal Number: BMA# 000-00-00
On De Novo Review from a Final Judgment of
Conviction Entered in the Municipal Court of Town, State
County, State.
Sat Below: Honorable Jennifer J. Jewel, A.B.C.
Dear Judge Jones:
Please accept this letter brief in lieu of a more formal
brief on behalf of the State with regard to the above referenced
municipal appeal. This matter is scheduled before Your Honor on
Wednesday, November 2, 20xx at 3:30 p.m. in Room 000.

COUNTER-STATEMENT OF PROCEDURAL HISTORY
On June 23, 20xx, defendant, Dan Defendant was issued Town
Municipal Summons No. A-0000-000000 with being under the
influence of a controlled dangerous substance [“CDS”] in
violation of S.S.A. 2C:35-10B and driving while impaired or
under the influence [“DWI”], in violation of S.S.A. 39:4-50.
(Pa1 to 4).1
A first appearance took place on August 4, 20xx at which
the court advised defendant of his rights and counsel was
assigned. (Pa2).
On March 23, 20xx, defendant, represented by Donald C.
Defender, Esq., appeared in Town Municipal Court before the
Honorable Jennifer J. Judge, A.B.C. (Db4). Defendant had
submitted a pretrial brief making a motion to exclude the Drug
Recognition Expert (DRE) Opinion Testimony. (Db4). Judge Jewel
did not rule on the motion until the conclusion of the trial, at
which point, it was denied. (3T19-18 to 20-6).
On May 25, 20xx, after considering testimony from the
State’s witnesses, Officers Robert Cop, and Harold Dirt, and Mr.
Horace Cain, a forensic scientist, and defendant’s expert
witness, Dr. Ellen R. House, and the arguments of counsel, Judge
1
“1T” refers to the Municipal Court transcript of March 23, 20xx.
“2T” refers to the Municipal Court transcript of April 27, 20xx.
“3T” refers to the Municipal Court transcript of May 25, 20xx.
“Db” refers to defendant’s brief dated September 21, 20xx.
“Pa” refers to the appendix attached to the State’s brief.
2

Jewel found the State’s witnesses credible and held the State
proved beyond a reasonable doubt that defendant drove while
under the influence of drugs which were narcotic and habit-
producing. (3T11-10 to 12-1). Judge Jewel found defendant not
guilty of being under the influence of a controlled dangerous
substance, because defendant had a valid prescriptions. (3T12-3
to 8).
On the DWI charge, Judge Jewel imposed the minimum sentence
for a second-time DWI offender2
: a $500 fine, $33 in court costs,
a $50 Victims of Crime Compensation Board [“VCCB”] assessment, a
$75 Safe Neighborhoods Services Fund [“SNSF”] assessment, $200
DWI surcharge, to attend an Intoxicated Driver Resource Center
[“IDRC”] for 48 hours, in lieu of jail time, and to forfeit his
driving privileges for two years. (3T14-11 to 24). Judge Jewel
also ordered defendant to install an ignition interlock device
during the license suspension and for two years thereafter.
(3T16-16 to 17-2).
Judge Jewel granted defendant’s motion to stay the
suspension of his license for fourteen days so that he might
file an appeal. (3T17-15 to 19-10).
On June 13, 20xx, defendant filed a timely Notice of
Appeal. (Db6). The Honorable Daisy P. Delilah, A.K.Be.,
2
Contemporaneous with the filing of this brief, the State is
submitting a copy of defendant’s driving abstract to the Court
and serving same on our adversary.
3

granted defendant’s motion for a continued stay and stayed
defendant’s sentence. This appeal follows. (Db6-3 to 9).
COUNTER-STATEMENT OF FACTS
On June 23, 20xx, at approximately 9:45 p.m., Town Police
Officer Harold Dirt was called to the area of 123 North and Ave
Avenues in Township. (1T16-22 to 17-13). The woman who had
called 9-1-1 had her hazard lights activated and identified
defendant’s car to Officer Dirt who then made a right turn onto
Abraham Avenue. (1T17-12 to 22). Officer Dirt went down
Abraham Avenue, located defendant’s car, pulled behind it and
activated his overhead lights. (1T18-1 to 6).3
After Officer
Dirt stopped the car, he approached the vehicle and asked
defendant, the driver, to provide his credentials. (1T18-9 to
10).
Defendant had his wallet open and Officer Dirt was able to
clearly see defendant’s license in the fold of the wallet.
(1T18-11 to 12). Defendant fumbled around for his credentials.
(1T-18-14). At one point, defendant fell asleep as Officer Dirt
was speaking to him. (1T18-14 to 17). Officer Dirt awoke
defendant and again asked for his credentials. Defendant,
however, again fell back asleep. (1T18-19 to 21). Defendant
3
In the municipal court, the defense stipulated to defendant
operating a motor vehicle, as well as probable cause for the
stop. (1T15-19 to 20; 3T5-5 to 10).
4

was eventually able to provide his credentials. (1T18-23 to
25).4
Officer Dirt then had defendant perform three field
sobriety tests, none of which defendant properly performed.
(1T19-13 to 22).5
At this point, defendant was placed under
arrest and brought to the Town Police Department. (1T20-14 to
11).
Officer Dirt called Sergeant Pepper who notified Town
Headquarters that a Drug Recognition Expert (DRE) would be
needed. (1T21-16 to 18). At approximately 11:50 p.m., Officer
Robert Cop, of the State County Police Department, received
instructions to come to the Town Police Department to conduct a
drug influence evaluation of defendant. (1T24-22 to 25-1).
Officer Cop made several inquiries of defendant regarding
his over-all health and fitness, what he had eaten that day,
whether he had consumed any alcohol or taken any medication, as
well as a battery of tests including taking defendant’s pulse,
his blood pressure, and checking his pupils. (1T32-20 to 33-5).
Officer Cop also had defendant repeat “the full standardized
4
At trial, the defense stipulated that defendant, after being
pulled over, evidenced some signs that are traditionally
associated with indicating intoxication but explained, through
counsel and expert testimony that it was defendant’s position
that he had a seizure while driving. (1T15-22 to 25).
5
At trial, the defense stipulated to defendant not being able to
complete all three of the field sobriety tests properly and also
that defendant’s performance on the field sobriety tests gave
rise to probable cause for his arrest and his urine being taken.
(1T19-22 to 20-12).
5

field sobriety tests,” including the horizontal gaze nystagmus,
the vertical gaze nystagmus, the Romberg balance, walk-and-turn,
one-leg stand, and finger-to-nose tests. (1T33-5 to 33-13;
1T34-9 to 12; 1T35-7 to 10).6
After the questioning and tests,
Officer Cop, based on the totality of the investigation he had
conducted, concluded that defendant was under the influence of a
central nervous system depressant. (1T36-3 to 6; 1T37-12 to
22).7
Because the Town Alcotest was out of service, defendant was
transported by Officers Dirt and Pepper to the Eastwood Park
Police Department where Officer John Wayne observed Defendant
for twenty-minutes before conducting the breath test that
resulted in a blood alcohol reading of 0.0%. Defendant was
then asked to give a urine sample, which he provided. (1T20-24
to 21-7).8
6
The defense stipulated to defendant’s continued poor
performance on all of these tests. (1T33-23 to 34-1; 35-13 to
14).
7
In this appeal, the State relies solely on Officer Cop’s
testimony about defendant’s performance on the standardized
field sobriety tests, excluding the HGN and VGN tests. See State
v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000). As Judge
Jewel observed, there was no dispute as to the physical
observations Officer Cop made of defendant. (3T10-13 to 18).
We further note that the DWI statute does not use the term
“central nervous system depressant,” and do not rely on the
Officer’s testimony in this regard to establish defendant’s
guilty of DWI.
8
At trial, the defense stipulated to a urine sample being
collected from defendant.
6

Mr. Horace Cain, a Forensic Scientist from the State Police
Office of Forensic Sciences, conducted a toxicology analysis of
defendant’s urine which revealed the presence of Citalopram
(brand name: Celexa), an anti-depressant, Lamotrigine (brand
name: Lamictal), an anti-seizure medication, and Quetiapine
(brand name: Seroquel), an anti-psychotic medication. (1T8-12
to 10-15; S-1).9
At trial, Mr. Cain testified that two of these
drugs had hallucinogenic effects and all had habit-producing
qualities. (1T10-18 to 12-20). Mr. Cain testified that
Citalopram (Celexa) was a habit producing drug because “your
body would go through withdrawal symptoms … you could have lack
of sleep. These could be dizziness, could be headaches. There
could be tired, nausea, things of that sort.” (T11-1 to 7).
Mr. Cain also opined that Lamotrigine was habit forming in that
if one were to abruptly stop taking it, he would experience
drowsiness, headaches, nausea. (T11-10 to 8). Mr. Cain’s
opinion was based on “literature” regarding these drugs and the
Physician’s Desk Reference. (T12-18 to 19). The State
stipulated to defendant having a valid prescription of the drugs
found in his system. (2T3-9 to 25).
Dr. Ellen R. House, a psychiatrist, testified for defense.
(1T51-100). Dr. House, however, at no time physically examined
9
Defendant is correct that Mr. Cain did not testify that
Quetiapine was a narcotic. (Db20). Judge Jewel was mistaken in
stating that Mr. Cain had given such testimony. (3T4-12 to 19).
7

defendant, nor did she even know who prescribed the drugs to
defendant. (1T74-12 to 75-11; 1T83-18 to 21). Dr. House only
based her opinion on her training, experience and a review of
defendant’s medical records. (1T74-23 to 75-21). Dr. House
opined that the medications identified in defendant’s urine
would cause a “minor withdrawal” if one were to stop taking them
abruptly. (1T77-13 to 78-6). Specifically, Dr. House stated,
on cross-examination, that a person who was to immediately stop
taking any of these drugs would feel “a little uneasy for a few
days …” and experience withdrawal symptoms such as “dizziness,
uneasiness and headache.” (1T79-13 to 14). Dr. House testified
that the drugs were not in fact hallucinogenic, narcotic, and
were only minimally habit-forming. (1T68-22 to 69-4). Dr.
House further indicated that there would be withdrawal symptoms
to some of the drugs found in defendant’s system, should he stop
taking them (i.e. Celexa). (1T77-8 to 81-1). Dr. House also
stated that it was her opinion that defendant suffered from a
seizure disorder and that he had seizures in the past. She based
her opinion on a letter from defendant to his attorney and
medical records from Mountain Hospital, where defendant went
following a purported seizure. (1T61-19 to 25; 1T97-2 to 100-
10). Finally, Dr. House disputed the validity of the blood
pressure reading taken by Officer Cop. (T70-10 to 72-9).
8

After listening to the testimony, Judge Jewel found Mr.
Cain and Officer Cop more credible and persuasive than Dr. House
and determined the drugs to be “narcotic and habit-producing.”10
Based on this evidence, he found defendant guilty of DWI.
(3T10-6 to 12-11).
STANDARD OF REVIEW
The function of the Superior Court on an appeal from the
Municipal Court is to make independent findings of fact and
legal conclusions on the evidentiary record made below, giving
due regard to the opportunity of the municipal judge to assess
the credibility of the witnesses. State v. Johnson, 42 N.J.
146, 157 (1964); State v. States, 44 N.J. 285, 293 (1965); State
v. Godshalk, 381 N.J. Super. 326, 328 (Law Div. 2005). In
Johnson, the New Jersey Supreme Court reasoned that the trial
court is in the best position to see and hear the witnesses and
get an overall “feel” of the case. Id. at 161.
The New Jersey Supreme Court has reinforced Johnson,
unanimously holding that “[a]ppellate courts should defer to the
trial Court’s credibility findings that are often influenced by
matter such as observation of the character and demeanor of
witnesses and common human experience that are not transmitted
by the record.” State v. Locurto, 157 N.J. 463, 474 (1999).
LEGAL ARGUMENT
10
See footnote 9, supra.
9

POINT I11
DEFENDANT IS GUILTY, DE NOVO, OF DRIVING WHILE INTOXICATED
BEYOND A REASONABLE DOUBT.
Defendant argues that the State has failed to establish his
guilt of DWI beyond a reasonable doubt. Specifically, he argues
that the State provided inadequate factual testimony and
evidence that defendant was intoxicated. The State submits that
defendant’s arguments are without merit.
Pursuant to N.J.S.A. 39:4-50, a person is guilty of driving
while intoxicated if they operate a motor vehicle while under
the influence of any intoxicating substance. The State must
prove a defendant’s guilt beyond reasonable doubt. State v.
Johnson, 42 N.J. 146, 156 (1964).
The New Jersey Supreme Court has specified that “under the
influence” can be defined as either (1) a substantial
deterioration or diminution of the mental faculties or physical
capabilities of a person whether it be due to intoxicating
liquor, narcotic, hallucinogenic or habit producing drugs; or
(2) a condition which so affects the judgment or control of a
motor vehicle operator as to make it improper for him to drive
on the highway. State v. Bealor, 187 N.J. 574, 589-90 (2006).
Very significantly, N.J.S.A. 39:4-50(a), the driving while
intoxicated statute, “does not require that the particular
11
Point I responds to the arguments in Points I, II, and III of
defendant’s brief.
10

narcotic [hallucinogen or habit-producing drug] be identified.”
State v. Tamburro, 68 N.J. 414, 421 (1975). “The statute also
does not define the quantum of narcotics, hallucinogens or
habit-producing drugs required in order to violate its
prohibition. Instead, as with alcohol intoxication, the issue
is simple: was the defendant “under the influence” of a
narcotic, hallucinogen or habit-producing drug while he operated
a motor vehicle.” Robert Ramsey, New Jersey Drunk Driving Law.
p. 275 (2007).
Typically, judges consider a wide variety of factors when
determining whether the State has proven beyond a reasonable
doubt that a defendant was operating a motor vehicle while
intoxicated. See e.g., Bealor, supra at 590-91 (sustaining
conviction based on defendant’s erratic and dangerous driving,
slurred speech, bloodshot and glassy eyes, pale and flushed
face, his fumbling for his credentials, smell of marijuana,
sagging knees, and blank stare on his face); State v. Cleverley,
348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining conviction
on defendant’s driving without headlights on, smell of alcohol
on defendant’s breath, slurred speech, combative demeanor,
difficulty standing, and inability to perform the field sobriety
tests); State v. Oliveri, 336 N.J. Super. 244, 251-252 (App.
Div. 2001) (sustaining conviction on defendant’s watery eyes,
slurred speech, inability to follow commands, defendant’s
11

admission that he had consumed alcohol, staggering while
walking, and failure to complete field sobriety tests).
In the instant case, there is sufficient evidence that
defendant was driving while intoxicated based on defendant’s
poor driving (as it was enough to have a citizen observer call
the police), defendant’s behavior after being pulled over
(specifically, falling asleep as a police officer was
questioning him), Officers Cop and Dirt’s observations of
defendant’s demeanor, defendant’s poor performance on the two
independently administered sets of field sobriety tests (one set
by Officer Dirt, the other by Officer Cop), and the results of
defendant’s urine test that according to forensic scientist
Cain’s testimony, identified in defendant’s system three
prescription drugs, two of which also had hallucinogenic effects
and all of which were habit forming.
Defendant disputes the credibility of the State’s
witnesses, even though he stipulated to the State’s witnesses’
credentials as experts in their respective fields. Very
significantly, however, after listening to all of the witnesses,
Judge Jewel found the testimony of Mr. Cain of the State Lab to
be credible. He made a similar finding with respect to the
testimony of Officer Cop, the drug recognition expert, and
Officer Dirt, the arresting officer. Based on all of the
State’s witnesses’ testimony, the Judge found the State to have
12

sufficiently proved beyond a reasonable doubt that defendant was
DWI. (3T10-11 to 15).
Conversely, Judge Jewel found the defense’s psychiatrist
expert witness, Dr. House, to be unpersuasive “with regard to
her attempt to minimize the purpose of the drugs that were
apparently validly prescribed to [defendant].” (3T11-1 to 5).
Dr. House made light of the habit-producing nature of these
drugs and testified that none of them were hallucinogenic,
contradicting Mr. Cain’s testimony that two of the drugs were
hallucinogenic. However, Dr. House’s testimony was found by
Judge Jewel to be unconvincing.
Dr. House never made a single formal request to examine
defendant and was not his treating physician. The State submits
that without actually examining defendant, Dr. House’s testimony
should not be credited. Dr. House also admitted that
“anything’s possible when taking medication” when answering if
“it was possible that the three substances that were found in
his system impaired his ability to control [his] vehicle.”
(1T87-24).
This court should defer to the credibility determinations
of the lower court. See State v. Locurto, 157 N.J. 463, 474
(1999) (holding that reviewing courts “should defer to trial
courts’ credibility findings that are often influenced by
matters such as observations of the character and demeanor of
13

witnesses and common human experience that are not transmitted
by the record.”) (citations omitted); Johnson, 42 N.J. at 161
(holding that the Law Division reviewing a municipal appeal de
novo “should give deference to those findings of the trial judge
which are substantially influenced by his opportunity to hear
and see the witnesses and to have the ‘feel’ of the case, which
a reviewing court cannot enjoy.”). See id.
Defendant further argues that Mr. Cain never identified
which of the three drugs had hallucinogenic effects, but N.J.S.A.
39:4-50(a) does not require such identification. State v.
Tamburro, 68 N.J. at 421. It is sufficient that a qualified
expert witness (which defense, himself, stipulated Mr. Cain was)
testified as Mr. Cain did. The ultimate decision is left for
the finder of fact. As Judge Jewel stated, the State can prove
its case through the use of an expert pursuant to State v.
Tamburro, supra, and State v. Bealor, supra, a burden which he
concluded the State met in this case. (3T10-5 to 12-7).
Defendant’s explanation that he had a minor seizure and
that he was on certain medication to prevent such a seizure does
not undermine Officers Dirt’s and Cop’s well-substantiated
conclusions based on their observations of defendant that he was
intoxicated and unable to operate a motor vehicle safely because
of his poor performance on the field sobriety tests as well as
his behavior in general. Nor does such an explanation undermine
14

Mr. Cain’s testimony. Lastly, such an explanation fails to
account for how poorly defendant performed on each and every
field sobriety test. It bears emphasis that defendant failed on
two separate sets of field sobriety exercises administered at
two different times. These psychophysical tests are meant to
determine if a person is capable of driving safely.
To conclude, the State does not have to prove precisely
what habit producing or hallucinogenic drug defendant was under
the influence of at the time he drove on June 23, 20xx. State
v. Tamburro, supra. The testimony from the State’s witnesses
established that the drugs found in defendant’s system were
habit forming and that two had hallucinogenic effects. This was
ample evidence, coupled with defendant’s falling asleep, his
poor performance on the field sobriety tests and his erratic
driving reported by a citizen informant, for Judge Jewel to
conclude that the State met its burden beyond a reasonable doubt.
CONCLUSION
Based on the foregoing, the State respectfully requests
that this court find defendant guilty, de novo, of DWI, contrary
to N.J.S.A. 39:4-50, and impose the sentence as below.
Respectfully submitted,
15

J. L. M.
State County Prosecutor
Attorney for the Plaintiff –
Respondent
By:_________________________
A.C.
Senior Assistant Prosecutor
Of Counsel
C. KEVIN GRIM
Law Intern
On the Letter Brief
cc: Donald C. Defender, Esq.
16

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