New Jersey, Other States Review Standards for “Drugged Driving” as Medical Marijuana Laws Take Effect

Legal prohibitions against marijuana are falling aside all across the country, as a majority of U.S. states now permit at least limited use of the drug for medical purposes. New Jersey has enacted a medical marijuana statute that allows use with a prescription and under a doctor’s supervision. A handful of states have legalized marijuana entirely, while other states, like New York, have decriminalized its use. This means that, while recreational marijuana use is still against the law in New York, it is no longer considered a criminal offense. Driving under the influence of drugs (DUID) has always been a concern for law enforcement alongside driving while intoxicated (DWI). Widespread legalization of marijuana for various uses has led to renewed attention to the issue, as well as attempts to amend existing laws in New Jersey and elsewhere.

Marijuana remains a Schedule I controlled substance under New Jersey law, but the Compassionate Use Medical Marijuana Act made the cultivation, sale, possession, and use of marijuana legal for specific purposes, under strict medical guidelines. Under current New Jersey law, the offense of DWI includes driving while under the influence of a “narcotic, hallucinogenic or habit-producing drug.” The statute does not specify an amount of any particular drug that must be present in a person’s body at the time they were driving, with the well-known exception of alcohol. A person with a blood alcohol concentration (BAC) of 0.08 percent is presumed to be legally impaired. This is known as a “per se standard.” Some states do identify a per se standard for particular drugs, such as Pennsylvania’s requirement of one nanogram of THC, the active component of marijuana, per milliliter of blood.

At least 11 states have adopted “zero tolerance” DUID policies, meaning that any amount of an illegal controlled substance in a person’s system meets the per se standard for impairment. Since different drugs remain in a person’s bloodstream for different periods of time, most states use tests that detect the presence of the drug or byproducts created as the body metabolizes the drug, known as metabolites. New Jersey’s DWI statute makes no specific mention of either a per se standard or a zero tolerance policy.

A 1975 decision by the New Jersey Supreme Court, State v. Tamburro, held that the state’s DWI statute does not require the identification of any particular drug, as long as “a qualified expert can determine that [the defendant] is ‘under the influence’ of a narcotic,” based on their “conduct, physical and mental condition and the symptoms displayed.” In 2006, the court held in State v. Bealor that a police officer’s observations of features like “slurred and slow speech,” “bloodshot and glassy eyes,” and “droopy eyelids” were sufficient evidence of DUID when coupled with observations like “the smell of burnt marijuana on defendant.”

Despite case law stating that prosecutors have no obligation to establish that a defendant has actually taken any particular drug, or in any specific amount, New Jersey legislators have, at times, sought to establish a “per se standard” for DUID. One such effort, Assembly Bill 701, was introduced in the New Jersey Assembly in January 2014. It would have set a zero tolerance policy, but it never advanced beyond a committee referral.

If you are facing DWI charges in New Jersey, an experienced and knowledgeable DWI attorney can help you understand your rights, guide you through the court system, and prepare a vigorous defense for your case. To schedule a free and confidential consultation to discuss your DWI case with a member of our team, contact Levow DWI Law, P.C. today online or at (877) 593-1717.

More Blog Posts:

New Jersey Court Finds that “Marijuana Smell” Can Still Provide Probable Cause, Despite State’s Medical Marijuana Law, New Jersey DWI Attorney Blog, October 27, 2015

Medical Marijuana Patient Acquitted of DWI, New Jersey DWI Attorney Blog, October 5, 2015

Federal Agency Calls for Further Lowering of the Legal BAC Limit in DWI Cases, New Jersey DWI Attorney Blog, December 29, 2015

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