Bill Pending in New Jersey Assembly Would Establish Per Se Standard for DWI Involving Marijuana

According to recent media reports, the number of convictions for driving while intoxicated (DWI) in New Jersey is decreasing, at least with regard to cases involving alcohol. The decline reportedly might be due to an increase in DWI cases involving marijuana and other controlled substances. New Jersey law provides no per se standard for impairment by marijuana or other drugs that is comparable to the standard for alcohol. A bill currently pending in the New Jersey Assembly, A2776, would establish a per se standard for marijuana in DWI cases. This bill, if enacted, would probably present both benefits and drawbacks for New Jersey DWI defendants.

New Jersey law creates a presumption of impairment if a defendant’s blood alcohol content (BAC) is at least 0.08 percent. This is often known as DWI per se. Since no similar standard exists for marijuana and other drugs, prosecutors must rely on testimony from police officers who have received training as “drug recognition experts” (DREs). Typically, a DRE-certified officer observes a defendant during or shortly after their arrest, and then forms an opinion of which substance(s) they took. The use of DRE testimony in court presents problems for defendants, given the wide gulf that often exists between the questionable scientific basis of their training and the weight that courts often give to police officers’ testimony.

Tests for marijuana look for specific compounds in the blood. Delta 9-tetrahydrocannabinol (THC) is the active component of marijuana, but it can dissipate in the bloodstream within a few hours. As the body metabolizes THC, it produces a form of carboxylic acid known as delta 9-carboxy-THC (THC-COOH) as a metabolite. The presence of THC-COOH can determine if someone has recently used marijuana, but it is a less accurate method of establishing actual impairment.

Some states have already established per se standards for other drugs besides alcohol. This means that, if a defendant’s blood contains traces of a particular substance at or above a particular amount, they are presumed to be impaired within the meaning of their state’s DWI statute. Pennsylvania has established per se standards for several controlled substances, including marijuana, cocaine, and opiates. It sets a very low minimum amount for marijuana, one nanogram of THC or THC-COOH per milliliter of blood.

The New Jersey bill, A2776, would amend the DWI statute to include a per se standard for marijuana impairment. The statement accompanying the bill notes that police and prosecutors must currently rely on observations of a defendant and expert testimony, usually from a DRE. The bill would establish a per se amount of two nanograms per milliliter “within two hours of operating a motor vehicle.” The bill is currently still awaiting a committee assignment.

While A2776 might have the benefit of reducing prosecutors’ reliance on the questionable testimony of DREs, it could also have a negative impact on DWI suspects. THC and THC-COOH can only be measured with blood or urine tests, but obtaining a blood or urine sample requires consent or a warrant under most circumstances. Both the U.S. and New Jersey Supreme Courts have ruled that the dissipation of alcohol in the body is not, by itself, an “exigent circumstance” justifying a warrantless blood draw. By creating a two-hour time window, A2776 might be creating a new “exigent circumstance” for police.

DWI lawyer Evan Levow advocates for people facing DWI charges in New Jersey municipal courts. He can help you understand your rights and guide you through the court process. To schedule a free and confidential consultation with a member of our experienced and knowledgeable team, contact us today at (877) 593-1717 or online.

More Blog Posts:

Few Consistent Legal Standards Exist for DWI Cases Involving Marijuana, New Jersey DWI Attorney Blog, October 15, 2017

Police Cannot Search Vehicle Solely Because It Came from a State Where Marijuana Use is Legal, New Jersey DWI Attorney Blog, September 4, 2016

New Jersey, Other States Review Standards for “Drugged Driving” as Medical Marijuana Laws Take Effect, New Jersey DWI Attorney Blog, March 13, 2016


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