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DWI Conviction Entered in Face of Reasonable Doubt Is Reversed

DWI Conviction Entered in Face of Reasonable Doubt Is Reversed

Charles Toutant

New Jersey Law Journal

February 24, 2011




An Essex County judge who shifted the burden of proof to the defendant in a drunken-driving case and convicted her despite finding reasonable doubt was reversed Thursday by a state appeals court.

The Appellate Division rejected the state’s request for a limited remand, on the theory that Superior Court Judge Robert Gardner merely spoke imprecisely. “The fact-finder found a reasonable doubt yet convicted defendant nonetheless. If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt,” the appeals court said in State v. Driscoll, A-5842-08.

Patricia Driscoll was pulled over after a Fairfield police officer saw her driving very slowly on Route 46. She also struck a curb and ran a red light. Driscoll failed field sobriety tests, could not recite the alphabet beginning with the letter “K,” seemed disoriented and staggered while walking.

A breath test yielded a reading of zero alcohol in her blood, but a urine test revealed the presence of codeine and butalbital, a barbiturate.

Convicted in municipal court, Driscoll appealed to the Law Division. There, the state contended that she was guilty because she was under the influence of a narcotic. She was taking a drug called Fioricet, which contained codeine and butalbital, to treat chronic headaches, and Paxil, which enhanced the effects of the codeine and butalbital.

The defense presented testimony from Driscoll’s treating neurologist, Nabil Yagzi, who said her erratic driving on the night of her arrest was the result of Lyme disease, fatigue and a condition called presyncope, which causes dizziness, disorientation, loss of balance and mild cognitive dysfunction.

Yagzi testified that the Fioricet, which he prescribed, would not affect Driscoll’s driving because her brain had adapted to the medication regimen through long-term use.

Gardner, in deciding to let Yagzi testify, said he would rule whether Yagzi “produced a reasonable doubt or not with regard to the allegations alleged against the defendant.” But after hearing Yagzi’s testimony, Gardner said the defense “has the burden of proof with regard to raising the defense in this matter.”

In his oral opinion on June 16, 2009, finding Driscoll guilty, Gardner said he did not find Yagzi’s testimony credible. He said Driscoll’s actions on the night of her arrest were consistent with symptoms of fatigue and headaches as well as drug or alcohol intoxication.

“As a reasonable doubt exists as to the etiology of the observed symptoms, the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered in this case,” Gardner said.

On appeal, Driscoll maintained that Gardner committed plain error by imposing a burden of reasonable doubt on her and convicting her after concluding reasonable doubt existed. The state, on the other hand, argued that the trial judge did not intend to impose the burden of proof on the defendant, but was confusing in his verbiage.

But Judges Edith Payne and Ellen Koblitz refused to discount the trial judge’s findings of reasonable doubt.

“Findings are not formulaic phrases lacking serious import. When the trial court finds a reasonable doubt, we accord great weight to that finding. We do not accept that a finding of reasonable doubt is merely a poor word choice or result of some confusion in the court’s mind,” the panel said.

The panel said Driscoll “had a prescription for a medication that explained the presence of drugs in her urine. This evidence could have easily raised a reasonable doubt in the fact-finder’s mind.”

The state has not decided whether try to seek certification from the Supreme Court, says Assistant Essex County Prosecutor Maria Guerrero, who argued the appeal.

“My reading of the transcript is that the judge was not trying to shift the burden of proof to the defendant. The court did not agree,” Guerrero says.

The state’s contention that Gardner misspoke when he imposed a burden of proof on Driscoll fell flat because he made the same statement three times on the record, says defense lawyer Scott Kobil of Latham & Watkins in Newark, who took the case as a pro bono assignment.

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