The Fourth Amendment’s prohibition on unreasonable searches and seizures applies in all New Jersey driving while intoxicated (DWI) investigations and prosecutions. Defendants can raise Fourth Amendment challenges to numerous aspects of a DWI prosecution, such as a lack of reasonable suspicion before stopping their vehicle, or a lack of probable cause to initiate a DWI investigation. In cases in which police suspect an intoxicating substance other than alcohol, they may make use of a Drug Recognition Evaluator (DRE), who has received training in identifying signs of impairment by various drugs. A lawsuit filed last year challenges the use of DREs on Fourth Amendment grounds. While the case is pending in another state, it could affect future New Jersey DWI cases.
A private organization, the International Association of Chiefs of Police (IACP), operates the system for training and certifying DREs in cooperation with the National Highway Traffic Safety Administration (NHTSA). New Jersey has more than 400 police officers participating in the program. DREs use a 12-step process to assess whether a DWI suspect is under the influence of drugs. The IACP claims that this process is supported by scientific research, although this is subject to dispute. Part of the process, for example, involves field sobriety tests that are not part of the standard battery of tests approved by the NHTSA. A variety of medical conditions, physical impairments, and other factors could influence an individual’s performance on the various tests administered by a DRE as part of the 12-step process. A DRE’s expertise, for evidentiary purposes in court, usually does not extend beyond their specific training as a DRE.
The lawsuit mentioned above, Ebner v. Cobb County, involves three plaintiffs who, according to their complaint, were arrested, subjected to forced blood draws, and held for several hours “simply because a police officer had a hunch, based on deeply flawed drug-recognition training, that they might have been smoking marijuana.” None of them were under the influence of marijuana at the time of their arrests, they claim, and toxicology tests reportedly showed no traces of marijuana or its metabolites. They were all charged with DWI, but all charges were eventually dropped.