New Jersey Court Reviews State Law Regarding Use of Drug Recognition Evaluators in DWI Cases

The law of driving while intoxicated (DWI) in New Jersey gives the state multiple ways to establish that a defendant was impaired by alcohol or another drug. Blood alcohol content (BAC) is not required for prosecutors to obtain a conviction. Prosecutors can also offer testimony from an arresting officer describing a defendant’s performance on field sobriety tests, their behavior and demeanor, and other observations. Some police departments make use of drug recognition evaluators (DREs), officers with specialized training in identifying the effects of drugs other than alcohol.

The New Jersey Appellate Division considered a defendant’s challenge to DRE testimony in late 2015 in an unpublished decision, State v. Vazquez.  The court misinterpreted New Jersey case law and found  that New Jersey courts have recognized them as qualified experts.  That is incorrect.  The court relied on a 2006 New Jersey Supreme Court decision, State v. Bealor, which held that DRE testimony was admissible in a marijuana case, because the court thought that marijuana intoxication is so easy to spot, and accepted the DRE’s testimony that Mr. Bealor was under the influence of marijuana.  Bealor was wrongly decided, and it is now being used to support a proposition that is incorrect.

Prosecutors can use the New Jersey DWI statute to charge someone with driving under the influence of drugs (DUID), which requires proof that they were driving “while under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” Breath, blood, and urine tests are at least somewhat effective at ascertaining the amount of alcohol in a person’s system, and the way the human body typically metabolizes alcohol allows reasonable estimates, based on a person’s BAC, of how recently they were drinking. Other drugs are not as easily testable, which means that prosecutors must rely on other types of evidence to prove impairment. This is where some departments have started using DREs.

A DRE receives training in how to recognize the effects of various drugs in order to determine whether a person is legally impaired, usually after an arrest for suspected DWI or DUID. The International Association of Chiefs of Police oversees training and certification. DREs use a 12-step process that begins with a review of BAC results, if any, and an interview of the arresting officer. The DRE then conducts an examination of the arrestee, which includes checking their pulse, examining their eye movements (similar to a field sobriety test), conducting tests of physical coordination, taking their blood pressure, and checking their pulse again. It also includes a “muscle tone” examination, based on the theory that “certain categories of drugs may cause the muscles to become rigid,” while others may make them “very loose and flaccid.”  This 12 step process has not been validated or held to be scientifically reliable in New Jersey.  Because the Vazquez opinion is unpublished, it carries no precidential weight.

The defendant in the Vazquez case challenged the admissibility of the DRE’s testimony at trial, questioning its scientific reliability. The municipal court overruled the defendant’s objections, citing  Bealor, which allowed a police officer to testify as an expert on “marijuana intoxication.” The court stated that Bealor had established the reliability of DRE testimony.  That statement by the court is wrong.

The DRE testified that he believed the defendant was impaired by drugs, even though the only drug found in a urine test was diphenhydramine, the active ingredient in the allergy medicine Benadryl. The judge ruled that the DRE’s testimony, combined with test results showing the presence of a drug, was sufficient to establish DUID. It cited two New Jersey Supreme Court cases from 1975, State v. DiCarlo and State v. Tamburro, in finding that the state did not have to identify a specific drug. The Appellate Division affirmed these findings.

If you are facing charges of alleged DWI in New Jersey, an experienced and knowledgeable DWI lawyer can help you understand your rights, guide you through the legal process, and defend you in court. We have dedicated 100% of our practice at Levow DWI Law, P.C. to advocating for defendants in New Jersey charged with DWI, and we are available 24/7 to assist you. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation.

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

Five Factors Courts May Consider in Determining Whether a Driver Was Impaired in a New Jersey DWI Case, New Jersey DWI Attorney Blog, September 17, 2015

How Does the State Prove “Intoxication” in New Jersey DWI Cases Involving Drugs Instead of Alcohol? New Jersey DWI Attorney Blog, August 26, 2014