Possible Legalization of Marijuana in New Jersey Raises Questions About Evidence in DUID Cases

New Jersey has developed an extensive body of law addressing the investigation and prosecution of suspected driving while intoxicated (DWI), at least when the substance in question is alcohol. Testing the amount of alcohol present in a person’s system, known as blood alcohol concentration (BAC), is a highly imperfect process, which is prone to constant errors. Despite its many flaws, it is still a better system than anything available for determining whether a driver was impaired by other drugs. Currently, New Jersey prosecutors pursuing alleged driving under the influence of drugs (DUID) must rely on (1) chemical tests with no specific threshold amount to determine impairment, and (2) the testimony of police officers purportedly trained to identify outward signs of intoxication by various drugs. As legislators continue to consider the New Jersey Cannabis Regulatory and Expungement Aid Modernization Act (NJCREAMA), questions will continue to abound about how to enforce DUID laws involving marijuana, and how to defend people charged with that alleged offense. If you have been charged with a DWI, it is important that you speak with a New Jersey DWI attorney as soon as possible.

In cases involving alcohol, New Jersey’s “legal limit” of 0.08 percent BAC creates a presumption of impairment. This is often known as per se DWI. New Jersey law has no specific threshold amount for marijuana or any other drug in DUID cases. Police can seek a warrant to test samples of blood or urine, but that only indicates whether or not a suspect had a particular drug in their system at the time the sample was taken. Prosecutors usually must produce other evidence to establish impairment. This often involves testimony by police officers who receive specialized training as “drug recognition experts” (DREs).

In cases involving alleged marijuana impairment, chemical testing evidence and DRE testimony may conflict with one another. Marijuana can show up in blood or urine tests long after its effects have worn off. Several recent New Jersey cases have relied on chemical tests allegedly showing the presence of marijuana in a driver’s system, despite testimony from eyewitnesses, including police officers, who did not notice any signs of impairment.

The National Highway Traffic Safety Administration (NHTSA) has published several reports in recent years about the risks of driving under the influence of marijuana, and addressing the possibility of chemical test results that conflict with eyewitness and DRE evidence. A report issued in February 2015 found no consensus among studies of the risk posed by marijuana and driving. It noted that studies that relied on blood test results often had lower risk estimates than studies that relied on self-reporting by drivers. It also noted that marijuana can remain detectable in blood tests “for a period of days or weeks after ingestion.” One possible conclusion is that a positive marijuana test, by itself, is not proof of impairment.

Another NHTSA report, published in July 2017, also addressed the problem of chemical test results suggesting greater impairment than actually existed. The report found that “[t]oxicologists are not able to provide expert testimony that a specific amount of THC…is definitively associated with being impaired by marijuana.” It therefore recommended that police and prosecutors focus on evidence like DRE testimony, at least until lawmakers can find an “impairment standard” for marijuana.

If you are facing charges in a municipal court for driving under the influence of drugs (DUID), New Jersey DWI attorney Evan Levow is available to answer your questions and address your concerns. Please contact us at (877) 593-1717 or online today to schedule a free and confidential consultation to see how we can help you.

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