Few Consistent Legal Standards Exist for DWI Cases Involving Marijuana

The legal standards in New Jersey for proving impairment by alcohol in cases of alleged driving while intoxicated (DWI) are fairly well established. Prosecutors can offer evidence of a defendant’s alleged blood alcohol content (BAC), or they can introduce eyewitness and expert testimony. The DWI statute does not only apply to alcohol, however. It also makes it an offense to drive while “under the influence of…[a] narcotic, hallucinogenic or habit-producing drug.” New Jersey has no equivalent to the BAC limit of 0.08 percent for drugs. A handful of states have established “legal limits” for certain drugs, but no consistent standards exist. Furthermore, breath testing cannot establish the amount of any particular drug in a person’s system, meaning that the state must rely on blood and urine testing. As legal marijuana becomes more prevalent in various parts of the country, these inconsistencies are likely to become clearer.

Under New Jersey law, a driver commits a DWI offense if they operate a vehicle with a BAC of at least 0.08 percent. This is sometimes known as DWI per se, since the state can meet its burden of proof based solely on BAC evidence and evidence that the defendant actually was driving or imminently intended to drive. Prosecutors can also establish guilt without BAC evidence—or occasionally with test results showing a BAC of less than 0.08 percent—through testimony and other evidence. This often includes testimony from police officers who observed a defendant’s demeanor and appearance, particularly if the defendant was driving erratically, had slurred speech, or otherwise displayed outward signs of intoxication by alcohol.

The DWI statute does not mention any specific drug other than alcohol, but courts have interpreted it to mean both illegal drugs and legal drugs that can affect a person’s ability to drive or operate machinery. They have held that eyewitness and expert testimony is sufficient to prove impairment by drugs. In 1975, the New Jersey Supreme Court held in State v. Tamburro that the state must offer evidence that a defendant’s “conduct, physical and mental condition and the symptoms displayed” are consistent with the effects of a narcotic. If the state meets this burden, the court held, it does not have to identify any specific narcotic. The court held in 2006’s State v. Bealor that, unlike in cases involving alcohol intoxication, lay testimony alone is not sufficient to establish impairment by marijuana or other drugs. Police officers with proper training, according to the court, may offer expert testimony.

Some states have enacted laws or regulations setting specific limits for certain drugs. With regard to marijuana, a few have reportedly set a legal limit of five nanograms of THC per milliliter of blood. Pennsylvania sets the limit at one nanogram. Other states have “zero tolerance” laws, meaning that having any amount of various drugs in one’s system could lead to DWI charges. Testing for BAC is already fraught with problems, ranging from proper calibration and maintenance of Alcotest devices to proper handling of blood and urine samples. Testing for other substances presents a whole new range of potential challenges.

Defending against alleged DWI charges in a New Jersey municipal court requires thorough planning and careful preparation. DWI lawyer Evan Levow can guide you through the court process and help you understand your legal rights. Contact us today online or at (877) 593-1717 to schedule a free and confidential consultation with a member of our team.

More Blog Posts:

Police Cannot Search Vehicle Solely Because It Came from a State Where Marijuana Use is Legal, New Jersey DWI Attorney Blog, September 4, 2016

New Jersey, Other States Review Standards for “Drugged Driving” as Medical Marijuana Laws Take Effect, New Jersey DWI Attorney Blog, March 13, 2016

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