New Jersey’s laws dealing with the offense of driving while intoxicated (DWI) say a great deal about impairment by alcohol, but far less about impairment by other substances. The statute makes it a motor vehicle offense to drive “while under the influence” of alcohol, with blood alcohol concentration (BAC) of 0.08 percent, or while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” This last category is ill-defined, especially when compared to the vast body of law dealing with alcohol. New Jersey courts may accept testimony regarding impairment by drugs even in the absence of evidence of any specific drug in a sufficient amount to cause impairment. Understanding how New Jersey law deals with “drugged driving” is critical to mounting a defense.
State law identifies two types of DWI involving alcohol. Operating a vehicle while “under the influence of alcohol” constitutes DWI, but requires the state to prove the existence of alcohol’s “influence” over a defendant. If a defendant had BAC of 0.08 percent or more, state law presumes that they were under the influence. This is known as DWI per se. Courts have developed an extensive set of rules surrounding DWI allegedly caused by alcohol, especially when breath testing is involved.
We were part of a landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, which established procedures and requirements for the admissibility of BAC evidence obtained from breath testing. It addressed the breath-testing device used by law enforcement around the state, known as the Alcotest. The state supreme court has reiterated the importance of the procedures set forth in Chun. In a 2015 decision, for example, it stated that any finding of guilt in a DWI per se case “is subject to proof of the Alcotest’s reliability.”
No comparable standard of proof exists for intoxication by substances other than alcohol. Some states have established “legal limits” for marijuana and other drugs, measurable by testing a blood or urine sample. New Jersey is not among those states. There is no DWI per se for marijuana or any other drug that can cause impairment of one’s driving ability.
While prosecutors do not have to prove that a drug was present in a person’s blood in any specific amount in a DWI case, courts have added some safeguards for defendants. The New Jersey Supreme Court held decades ago that opinion testimony from laypersons — meaning people with no specialized training or expertise — was admissible to establish intoxication by alcohol, finding that the effects of alcohol are familiar to the general public. This can occur even without any BAC evidence.
In 2006, the court ruled on the question of whether prosecutors could use lay opinion testimony to establish intoxication by drugs. It held that lay opinion is not sufficient by itself, because people are not as familiar with the effects of various drugs. It allowed courts to consider this kind of testimony, but required additional testimony to support a guilty verdict.
DWI lawyer Evan Levow represents people who have been charged with alleged DWI or DUID (Driving Under the Influence of Drugs) in New Jersey municipal courts. He can advise you of your rights, help you understand your options, and prepare the best possible defense for your particular case. Please contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our team.