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The statute for a violation of Driving While Under the Influence does not require identifying the amount of narcotic, hallucinogen or habit-producing drug required in order to establish a violation.  A police officer’s observations of the fact of intoxication is admissible.  The police officer’s opinion about cause of intoxication other than from alcohol consumption is not admissible.  This is because there is a general awareness of the signs and symptoms of alcohol intoxication which is not the same as a drug impairment.


An obvious sign is the odor of alcohol.  The officer then will proceed to perform certain field tests for further evidence for his reason to take in a driver for an Alcotest.  Once the Alcotest is done, the readings are recognized by the Courts and are admissible proof of intoxication.


There is no such awareness for habit-producing drugs, narcotics or hallucinogenic drugs.  The common sequence of events is that the police officer observes some driving violation and stops the driver.  The officer will then investigate and, if appropriate, make observations to determine the fact of intoxication or being under the influence of a drug.

In the encounter, the officer may observe the odor of marijuana or what appears like marijuana or drug paraphernalia in the vehicle.  If so, the driver can be charged with Possession of a Controlled Dangerous Substance and Possession of Paraphernalia.  These are criminal, not a motor vehicle, offenses.

A companion offence of Driving While Under the Influence of a Narcotic, Hallucinogen or Habit-Producing Drug is another offense which can be charged for the same incident.  Another offense can be Possession of Drugs in a Motor Vehicle.

If the driver’s behavior shows some impairment from something other than alcohol, a urine or blood sample will be taken.  This can be erratic driving, slurred speech, swaying or disorientation.  There must be independent scientific evidence of a narcotic in the system at the time of the arrest.

If there are blood and urine tests, the urine can be collected at the police station.  A warrant should be obtained by the police to obtain samples.  Blood tests are done at a hospital.  The samples are sent to the State Lab for analysis revealing drugs.  The officer cannot testify to this as it is not common knowledge.  These test results must be certified to by the lab technician and due to the testimonial nature of these test results, the Defendant has the right to have the technician who performed the tests come into Court to testify.  It may be necessary for the defense to have an expert such as a toxicologist review the record to be sure that the proceedings and results are correct and valid.

The question is, was the driver’s mental and physical faculties so affected because of taking a controlled dangerous substance that he could not make proper judgments in operating a motor vehicle and that he was a danger to himself and others.

If the test reveals a substance which is prescribed by a doctor, but is a narcotic, hallucinogenic or habit-producing drug, the fact that it is prescribed is not a basis for dismissal.  Sometimes these drugs will have a warning not to drive.  The issue is whether the person was capable of driving safely.


In this case, the driver does not have to be impaired.  The heavy penalties and defense strategies in these cases require an attorney’s representation.  For example, a conviction for possession of drugs in a motor vehicle results in a two year loss of license.  A first time conviction involving driving while under the influence of drugs will result in a seven to twelve month loss of license.  A charge of possession of under 50 grams of marijuana is a disorderly persons offense and may be amenable to a Conditional Discharge if there has been no prior conviction.  This is not the same as Conditional Dismissal.  There are some diversionary programs for first offender drug offenses.

The motor vehicle offense of Driving While Intoxicated or Possession of Drugs in a Motor Vehicle cannot be resolved with a Conditional Discharge.

There are many different kinds of arrests which occur with driving and alcohol or drugs.  The State of New Jersey has particularly harsh penalties.  There is no temporary license to get to work or school.  In many cases, the Court must order an ignition interlock device for the vehicle which is driven by the violator.  This may be a family car and considerable expense and inconvenience occurs.

Helfand & Associates handles all municipal court defense and Drive While Intoxicated and Refusal charges.  We are experienced defense counsel.  When needed, we utilize toxicology and consultant experts who are recognized by the Courts in order to get our clients the best defenses.

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