“Drugged Driving” Cases in New Jersey Could Be Causing an Increase in DWI Dismissals Statewide

The New Jersey statute defining the offense of driving while intoxicated (DWI) allows the state to prove impairment by substances other than alcohol. At the same time, it makes it generally easier for the state to prove impairment by alcohol, partially due to the wider availability of technologies for measuring alcohol in a person’s system. The New Jersey Legislature has written the law to allow a presumption of impairment based on chemical testing for alcohol, but not other substances. A report from last year by NJ.com indicates that the rate of DWI dismissals throughout the state has increased over the past decade. It suggests that an increase in prosecutions for driving under the influence of drugs, or “drugged driving,” could be a factor. It is difficult, if not impossible, to find any single cause for a statistic like this, but it is worth noting that drugged driving is potentially more difficult for prosecutors to prove.

State law defines DWI in two ways. First, a person commits an offense if they drive “while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” This requires the state to prove that a defendant was impaired, or “under the influence,” through a variety of means, such as eyewitness testimony and testimony from officers trained to identify the effects of various drugs. The second type of DWI is often known as DWI per se. It only requires proof that a person drove while their blood alcohol content (BAC) was at or above 0.08 percent. State law requires anyone suspected of DWI to submit breath samples for chemical testing to determine BAC. Refusal to submit a breath sample is a separate motor vehicle offense with penalties that are almost as serious as the penalties for DWI.

Prosecutors routinely call the arresting officer or officers to testify at DWI trials. Where alcohol is allegedly involved, an officer may testify about their observations of a defendant. This may involve the odor of alcohol, or physical signs of intoxication like bloodshot or glassy eyes, slurred speech, and difficulty with balance. An officer who conducted field sobriety tests (FSTs) can offer testimony about a defendant’s performance. Even in the absence of BAC evidence, the state can offer evidence in an attempt to prove intoxication.

Poor performance on FSTs does not necessarily prove intoxication, however, as a person could have an injury or other condition that affects their ability to, for example, stand on one foot for a sustained period of time. Police may make use of drug recognition evaluators (DREs), who receive training in various signs of impairment by various drugs. The reliability of DRE testimony is the subject of ongoing dispute in the courts.

Chemical testing for drugs is only possible with blood or urine samples, not breath. These tests vary greatly in the extent to which they can discern how much of a given drug was in a person’s system at a given time, such as while they were driving. Because New Jersey’s implied consent law only applies to breath testing, police must obtain a warrant or a suspect’s consent to collect blood or urine samples.

If you have been charged with alleged DWI in a New Jersey municipal court, DWI attorney Evan Levow can defend you against the state’s allegations and help you understand your legal rights. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our experienced and skilled team.