offense for purposes of double jeopardy analysis, and a
conviction for one does not necessarily bar a subsequent
conviction for the other. However, if in the death by auto
prosecution, the State relies solely on intoxication as
evidence of recklessness, double jeopardy would bar a
subsequent prosecution for driving while intoxicated.
Thus, the Supreme Court directed that in cases where
drunk driving and death by auto arise out of the same
incident, the appropriate procedure is to have both
charges proceed simultaneously before the same Superior
Court judge. The judge will preside as a Superior Court
judge over the trial of the death by auto charge, and as a
municipal court juSdge with respect to the drunk driving
case.
State v. Snellbaker, 272 N.J. Super. 29 (App. Div.
1994), concluded that the trial court should not render
its findings on non-indictable charges when the jury
hangs on related indictable charges pending the
completion of the “continuing jeopardy.” Because of
defendant’s legitimate concern that the judge may hear
additional evidence at the second trial of the indictable
which will result in defendant’s conviction of the non-
indictable on the basis of evidence not presented at the
first trial, defendant shall be given the option after the
hung jury is “discharged” of (1) having the judge enter a
mistrial of the non-indictable complaints with
defendant’s consent and retry them with the indictables,
or (2) reserve decision on the non-indictables until
disposition of the indictables (to be tried before another
judge if defendant elects) and to render his findings after
the jury ultimately renders its verdict or the indictable
proceedings are otherwise culminated.
State v. Cuneo, 275 N.J. Super. 12 (App. Div. 1994),
held that where a defendant charged with DWI and other
motor vehicle offenses submits to a trial in municipal
court on the sole issue of operation of the motor vehicle,
an adjudication of nonoperation is tantamount to a
judgment of acquittal and the State is prevented by the
doctrine of double jeopardy from appealing the
determination and retrying the defendant. While the
State attempted to characterize the municipal
proceeding as a probable cause hearing, the Appellate
Division stated that it is the substance of the hearing and
not the label which controls. Since the purpose of the
hearing was to determine if the defendant drove the
vehicle, the proceeding concerned an element of the
offense which the State failed to establish. Therefore,
jeopardy attached and the defendant cannot be retried for
any of the offenses charged in which operation of the
vehicle is an element.
In State v. Mara, 253 N.J. Super. 204 (App. Div.
1992), intoxication was the sole basis for the DWI, but
not for the charge of aggravated assault. The aggravated
assault charge arose from a hit and run accident and did
not merge into the DWI charge, but defendant’s
recklessness could not be considered as an aggravating
factor to the aggravated assault charge because it was an
element.V. DRUGS (See also, CONTROLLED DANGER-
OUS SUBSTANCES, this Digest)
State v. Tamburro, 68 N.J. 414 (1975), held that to
support a conviction under N.J.S.A. 39:4-50, for
operating a motor vehicle under the influence of narcotic
drugs, it is sufficient if, from a person’s conduct, physical
and mental condition and symptoms displayed, a
qualified expert can determine that the person was
“under the influence” of a narcotic, including a drug that
produces a narcotic effect, without the necessity of that
particular drug being identified. Thus, defendant who
participated in a methadone maintenance program and
admittedly had taken his daily dose, and who exhibited
unmistakable symptoms of being under the influence of
a narcotic to the extent that it materially affected his
physical and mental faculties and made it unsafe for him
to operate a motor vehicle on a highway, was guilty of
violating N.J.S.A. 39:4-50. Accord, State v. Morris, 262
N.J. Super. 413, 420 (App. Div. 1993).According to State v. DiCarlo, 67 N.J. 321 (1975),
the controlled dangerous substance statute is not in para
materia with the statute providing for the penalties for
operating a vehicle while under the influence, and the
definition of “narcotic drug” in the controlled dangerous
substance statute is not of controlling weight in
interpreting the same phrase appearing in Title 39.
Testimony presented at trial was ample to establish that
methaqualone, found in defendant’s urine, is a narcotic
drug under the DWI statute.State v. Anderson, 210 N.J. Super. 669 (Law Div.
1986), held that inclusion of marijuana in N.J.S.A. 39:4-
49, prohibiting operation of a motor vehicle with certain
drugs in one’s possession or in the motor vehicle, had a
rational basis in that it served the regulatory purposes of
dissuading the possession and use of drugs while
operating motor vehicles.