New Jersey DWI Attorney John Menzel

How Do Police Determine An Arrest For Prescription Drug DWI?


If you get a breath test and it comes out as a 0.00% that is when they shift gears and go to this drug recognition evaluation technique. People do not realize that they are not required to participate in that evaluation. In fact, I advise my clients to never agree to such an evaluation, because all it is designed to do is give police something they can talk about that may sound impressive to a judge or a jury and enable them into convicting the defendant. The technique itself is nothing more than window dressing for a best guess based on what the defendant has admitted to them. But, if people would remember, their fundamental constitutional rights to, one- remain silent , two- consult with an attorney, the DRE technique would probably fail, because like I said, as Norman Schwarzkopf once said of Saddam Hussein’s battle strategy, DRE is nothing more than “Bovine Scatology”.

How Does The Implied Consent Law Come Into Play In A Prescription Medication DWI Case?

In New Jersey, implied consent applies only to the obligation to provide a breath sample. If you decline to provide a breath sample, that is a traffic offense that can have very significant consequences. Sometimes a breath test refusal is punished even more heavily than the DUI would be. But, when it comes to drug DWIs, it is always a good idea to provide the breath sample, because it is going to give exculpatory evidence of a reading less than the legal limit. Most of these drug DUI cases come in with a breath test result of a 0.00%, so that is very good evidence.

The next trick is if the person can remember and act upon their fundamental constitutional rights. What is going to happen is they will end up getting acquitted because they gave the sample and lived up to their obligation under the implied consent laws to provide that breath sample. Implied consent does not apply to either giving a blood or a urine sample. One part of this drug recognition evaluation technique requires that the person submit a urine sample. Again, I advise my clients that there is no legal obligation under the implied consent laws to do so and therefore, you should not voluntarily give a urine sample.

They would not normally ask for a blood sample so in a DRE evaluation, they would normally ask for a urine sample, but again, our implied consent law does not cover urine samples in New Jersey. It only applies to breath.

What Are The Most Common Prescription Drugs Leading To DWI Charges In New Jersey?

Cops focus on opioids, things like OxyContin, Vicodin and things like that. There are some painkillers that are very commonly prescribed. Sometimes there are drugs that they just do not understand what they are and they actually are quite harmless. The most problematic drugs we see are drugs like Ambien, another sleep aid that can, as a side effect, cause people to engage in what we call sleep driving. In other words, people who go out and engage in bizarre behaviors, those behaviors may include drinking and driving a car, frequently getting into an accident and people can appear as if they are conscious and know what is going on, but in reality, just have no idea that they are even doing these things.

They think they are home sleeping until they wake up in a jail cell or get up in the morning and see a bunch of traffic tickets on the kitchen table. The reason those cases are problematic, is because in New Jersey, DWI is not classified as crime, there is no bad mental state required, what we call in the law a mens rea. The bad act, again the actus Reus, which is the driving under the influence would exist, but because a DWI is not a crime, we do not care about whether a person meant to do it or not. The question becomes how do we deal with that? In other words, somebody is taking their medication more often than not as prescribed and they engage in conduct which they are completely unaware of.

Another term we use to describe that is automatism. The way we deal with that focuses on the element of operation in a DUI case. In other words, the operation is not just driving a car or being in a position of control over the vehicle, but having intent to move it. What we argue and sometimes succeed with is the idea that although the person may have driven a car or be in a position of control over the vehicle, they have no intent, because they are automatons by virtue of the side effect of the drugs they have been taking.

To make that case to a judge, you have to have a pretty good previously existing medical history and testimony that the drugs were taken as they were meant to be taken. If the person were to simply take those drugs to experiment, kind of like the drug abuser might, that is not going to be a defense. That is the most problematic situation we face. In fact the person is driving or operating a vehicle while under the influence of a drug. It is not a question of whether they meant to do it or not, but whether they had the actual intent to operate, to put the vehicle in motion.

For more information on Determining A Prescription Drug DWI, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 394-1394 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (888) dwi-1-dwi

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