Marijuana DUI Lawyer in New Jersey

Aggressive Criminal Defense Lawyer Fights to Protect Clients Charged With Marijuana DUIs in Middlesex County, Mercer County, Union County, Ocean County, and Burlington County, NJ

The short answer is yes; police can charge you for driving while high or under the influence of marijuana.  Like DUI charges resulting from alcohol intoxication, a drug based DWI arrest for violation of NJSA 39:4-50 must be predicated on a finding of probable cause. Like all criminal or quasi-criminal charges, it must be ultimately proven beyond a reasonable doubt, which is a very high legal standard. 

Initial Arrest and Investigation 

The typical fact pattern of a marijuana DUI arrest in NJ starts with police observation of a traffic or motor vehicle moving violation.  New Jersey’s motor vehicle code can be found in title 39 of the NJ Statutes Annotated.   A police officer may say he or she saw your vehicle swerving, speeding, improper use of a cell phone, or any other traffic violation.  This observation would give reasonable suspicion of a violation of law, which would normally justify the stop of the vehicle.  

Police officers are trained to detect the smell/odor of both raw and burnt marijuana. After pulling your car over, the appearance of intoxication such as slurred speech, disorientation, bloodshot, and/or watery eyes may give rise to a reasonable suspicion that you are under the influence of either drugs or alcohol.  Police will then usually administer the same standard field sobriety tests used for alcohol intoxication regardless of whether the suspicion is based on alcohol or drugs like marijuana.  This usually consists of the horizontal gaze nystagmus (HGN) test, the walk-and-turn, and the one-leg stand. Poor performance or observation of nystagmus on these tests can form the basis for probable cause to arrest. 

Regardless of whether the officer’s initial suspicion was based on, police will usually conduct breath testing using the Alcotest device even when drug intoxication is suspected.  A reading above the legal limit of .08% BAC will usually end the officer’s inquiry, but when the reading is below that, or especially when it is a .00 BAC, the officer may seek to have a drug recognition examination conducted. 

Drug Recognition Examination 

A very select few number of police officers in New Jersey are specially trained and certified as Drug Recognition Experts (DRE).  The program was first initiated in New Jersey in 1991.  The standard DRE program was developed by the Los Angeles Police Department in the 1970s.  The DRE program is administered by the New Jersey State Police in conjunction with the International Association of the Chiefs of Police. 

The training program itself consists of three phases of training followed by a final examination. The first phase of the program features 16 hours of preliminary training and the DRE candidate officer must pass a written test at the end of this phase. The second portion of the DRE training includes 56 hours of classroom training, followed by an additional test. The final and most difficult part of the training requires 40-60 hours of actual hands-on field certifications, which are conducted on volunteer subjects.  DRE officers are trained to identify several different classifications of drugs and the effects of those substances, including cannabis or marijuana. DRE officers must complete 8 hours of additional continued training in order to be recertified every two years. Certain other requirements must also be met for the officer to remain in good standing as a drug recognition expert. 

The DRE exam itself consists of a 12-step protocol that must be strictly followed.  The first part is the administration of breath testing to rule out alcohol intoxication. The examination then involves an interview of the subject and a preliminary medical examination.  This is followed by the administration of sobriety tests including the basic three described above and several specialized tests developed to test for the intoxication of specific drugs. The test concludes with the collection of a sample of blood or urine.  The sample will then be sent to a New Jersey State Police laboratory for a toxicology examination. 

It is important to keep in mind that police do not need a positive DRE examination in order for you to be convicted of a marijuana DWI.  This is in part pursuant to the New Jersey Supreme Court’s decision in State v. Bealor.  The prosecution instead must simply prove that you are under the influence of a drug or alcohol rendering it unsafe for you to operate the vehicle. Cannabis or marijuana has been routinely found by the NJ courts to theoretically and practically cause such intoxication. 

Potential Defenses

Many of the same defenses available for a traditional alcohol based DWI can be raised to a DUI based on marijuana or drug intoxication.  These include lack of reasonable suspicion to stop the vehicle and detain for sobriety testing, lack of probable cause to arrest, and failure to prove actual operation of the vehicle depending on the facts of the case.  The credentials of the DRE officer can be challenged as well as the manner in which the DRE examination was conducted and evaluated.  

In cases involving a laboratory report from a urine or blood sample, the laboratory can be challenged based on a variety of technical and legal grounds.  There may be additional questions raised if the state cannot establish a proper chain of custody for the handling of the sample.  The lab technician or chemist who actually conducted the analysis of the sample can be cross-examined or challenged. In cases involving blood samples, the circumstances surrounding the draw of the sample can be challenged as well.  It is important to note that a blood or urine sample in a typical marijuana or drug DWI will not have a quantitative analysis performed, but will instead simply return as positive or negative.  This can inhibit the ability of the state to prove that the sample has much relevance to whether the individual was under the influence of alcohol while operating the motor vehicle. 

What if the Marijuana was Legal or Medical?

Marijuana intoxication can be caused by the ingestion of all forms of cannabis, including both leaf, bud, or other traditional vegetation, hashish, oil, or edible cannabis product by eating, smoking, or vaping the substance. The active ingredient in marijuana that causes intoxication is delta-9 tetrahydrocannabinol.  Marijuana is illegal on the federal level and indeed classified as a schedule I controlled substance. This means that the federal government considers marijuana in much the same vein as cocaine or heroin, and officially states that marijuana has no medicinal value.  

While marijuana has been legalized in several U.S. states, as of the writing of this article it remains illegal in NJ with the exception of possession in conjunction with NJ’s medical marijuana law or  “CUMMA”.  Nevertheless, even if/when marijuana is legalized in NJ, this will not in any way prevent the police charging a DWI based on marijuana intoxication as with similar legal, but controlled substances such as Xanax, in addition to drugs that remain illegal such as heroin or fentanyl.  Similarly, having permission to possess medical marijuana does not prevent you from being charged with DUI in the same way that an individual with a prescription for alprazolam or opiate pain killer can also be found guilty of DUI despite having a prescription for that drug.