New Jersey Might Legalize Recreational Cannabis; Here’s How That Could Affect DWI Enforcement

The legal status of cannabis, including marijuana and related products, is undergoing major changes throughout the country. More than half of all U.S. states, including New Jersey, allow the possession and use of marijuana to some extent for medical purposes under a doctor’s supervision. A handful of states have enacted laws decriminalizing the possession of small amounts for recreational use. This may involve the substitution of civil penalties for criminal ones, or the removal of all legal penalties. A bill pending in the New Jersey Legislature, the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA) would remove all criminal penalties for the purchase and possession of up to one ounce of cannabis. Several provisions of the bill directly address investigations and prosecutions under New Jersey’s driving while intoxicated (DWI) law.

The New Jersey DWI statute defines the offense, in part, as driving “while under the influence of intoxicating liquor, narcotic,…or habit-producing drug.” For alcohol, the statute establishes a blood alcohol concentration (BAC) of 0.08 percent as the per se standard of impairment. State law also requires DWI suspects to submit a breath sample for BAC testing. New Jersey has no per se standard for marijuana impairment in DWI cases. Prosecutors must instead rely on circumstantial evidence and testimony from police officers trained as “drug recognition experts.” A bill introduced in February 2018, A2776, would establish a per se standard of two nanograms per milliliter, based on blood tests, but it is still awaiting a committee assignment.

Legislators first introduced NJCREAMA in the Senate in June 2018 as S2703. The Senate Budget and Appropriations Committee reported favorably on an amended version of the bill on November 26, 2018. A companion bill, A4497, was introduced in the Assembly and received a favorable report from the Assembly Appropriations Committee on the same day. This means that both committees recommend passage of the bill. In addition to legalizing small amounts of marijuana for medical use, the bill would create a new Cannabis Regulatory Commission (CRC) “to regulate personal use and medical cannabis.” It also provides for the expungement of records in certain prior marijuana cases.

Several sections of NJCREAMA directly pertain to DWI cases:
– Section 8(e)(1)(b) states that the CRC’s annual report to the Legislature must include the number of traffic stops that involve “driving under the influence of cannabis or marijuana, or suspicion thereof,” along with demographic data about the suspects.
– Section 66 states that, with one major exception, the mere odor of marijuana, or the mere suspicion of marijuana possession in an amount allowed under this law, does not “constitute reasonable articulable suspicion of a crime.” The one exception is in the investigation of suspected DWI.
– Section 67 amends the statute that defines penalties for refusal to submit to breath testing, adding “cannabis items” to the list of substances that may cause impairment for DWI purposes.

DWI attorney Evan Levow represents people charged with alleged DWI in New Jersey municipal courts. He can guide you through the court process, prepare the best possible defense for your case, and advocate for your rights both in and out of court. Please contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our experienced and knowledgeable team.

More Blog Posts:

Bill Pending in New Jersey Assembly Would Establish Per Se Standard for DWI Involving Marijuana, New Jersey DWI Attorney Blog, November 14, 2018

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