In addition to alcohol, a person can be arrested under N.J.S.A. 39:4-50(a) for operating a motor vehicle while under the influence of narcotic, hallucinogenic, or habit producing drug. This type of intoxication should generally be supported by expert opinion, however this requirement is currently relaxed while on appeal in the New Jersey court system. The term “under the influence” has been generally defined to mean “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 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”. The same indicators typically initiate a drug DUI stop as an alcohol related stop. Police repeatedly cite a driver’s failure to maintain lane, failure to properly use headlights, and unusually slow speed or other erratic driving behavior as indicative of intoxicated driving. Police officer’s begin to suspect that a driver is under the influence of drugs when the driver exhibits physical symptoms such as red, glassy eyes, droopy eyelids, disrupted fine-motor skills, etc. These physical symptoms can be caused by a myriad of other conditions or legal medications; talk to one of our attorneys about your relevant medical history today. Although the odor of marijuana is very often cited as well, an officer’s ability to properly identify this odor can be called into question by a qualified attorney. Carefully examining the probable cause reported by the police officer leading up to arrest is one of the many ways that the attorneys at the Law Offices of Jonathan Marshall can mitigate or eliminate the negative consequences associated with a DUI conviction in New Jersey.
Blood or Urine Testing. Whether intoxicating drugs are taken alone, or when alcohol has been ingested in concert with other intoxicating drugs, a breathalyzer test may provide a blood alcohol content (BAC) reading significantly below the limit of 0.08%. If the driver appears visibly intoxicated (fumbles for documents, glassy eyes, slurred speech, etc.) despite this result, a blood or urine chemical test is likely to be administered if the driver consents. When blood is taken, police are required to follow a very specific procedure. The withdrawal site must be cleaned with a non-alcoholic swab. The 10 ml containers must contain anticoagulant and preservative in addition to the blood. Once the sample is properly labeled, it must be promptly refrigerated and sent to the lab. If any of the procedure is not properly followed, the results from the test can be suppressed. A qualified attorney from the Law Offices of Jonathan Marshall can scrutinize the police reports to ensure that proper procedure was followed during the collection and transportation of the sample. The collection of a urine sample (at least 50 ml) must be witnessed before it is labeled and refrigerated. In the event that the driver was injured in the course of an accident and police have reasonable suspicion that the driver was under the influence of intoxicating liquor, hallucinogens, narcotics, or other habit producing drugs, police may obtain results of blood testing done for medical purposes by hospital personnel. The Dyal case allows the investigating police to obtain a copy of the alcohol or drug-related blood tests from the hospital by getting a subpoena duces tecum from a judge.
Standardized Testing & DUI. When determining whether a driver was operating a motor vehicle while under the influence of some form of drugs, the court can use two modes of proof, either by providing expert testimony or simply going forward with all available physical evidence along with scientific test results. Under the Bealor decision, expert testimony for marijuana intoxication can be provided by a police officer based on the knowledge, skills, experience and training he has acquired in his profession. The Sorrentino case, still pending on appeal, expanded this decision to allow common police officers to provide expert testimony as to intoxication on drugs in general (not limited to marijuana). However since Sorrentino is on appeal, a Drug Recognition Expert’s testimony is required for determining intoxication of drugs other than marijuana. It is important to note that a conviction is not contingent upon identification of the intoxicating substances. For example, the prosecutor need not prove that the driver was intoxicated due to cocaine use as opposed to methamphetamine use. At the time of the traffic stop, a police officer will administer the same Standardized Field Sobriety Tests used for suspected alcohol intoxication. If the results of these tests give the officer probable cause to arrest the driver under N.J.S.A. 39:4-50(a), a more specialized examination will likely be given at the police station. Drug Recognition Experts (DREs) are specially trained officers qualified to recognize intoxication on drugs other than alcohol. Most Drug DUI cases are strengthened with either DRE testimony or urine test results. Chemical tests can identify substances present in the body, but cannot quantify the amount. Qualified Drug DUI attorneys can call into question the validity of the results from both Standardized Field Sobriety Tests and chemical tests derived from a urine or blood sample.
Prescription Drugs. It is NOT an accepted defense to a DUI to claim that the substance was obtained and taken pursuant to a valid prescription. Many medications (pain killers, sleep medication, etc.) include a warning against driving or operating heavy machinery. If a user of this type of medication operates a motor vehicle while in a physical or mental state deemed to be “intoxicated” due to the use of said medication, he or she can be charged with driving under the influence under N.J.S.A 39:4-50(a). It is a common misconception that a proper prescription for legal medication (as opposed to illicit drugs) is a valid defense to DUI charges. Our attorneys have been successful in defending clients by calling into question the DRE report and presenting evidence of an adverse reaction to the drugs.
Penalties. Unlike alcohol related drunk driving charges, a drug-related DUI does not have a possible three (3) month loss of license, but carries a mandatory period of license suspension between seven (7) months and one (1) year. Most other penalties for a drug-related DUI are no different from an alcohol DWI, including expensive surcharges, fines, and possible jail time. One interesting grey-area in sentencing surrounds the use of Ignition Interlock devices. Those devices, used to analyze breath samples for BAC are theoretically applicable to DUI sentences despite being seemingly extraneous because they do not screen for drugs other than alcohol. Our attorneys argue vehemently to avoid the imposition of an interlock device for a drug DUI sentence.