New Jersey DWI Attorney John Menzel

How Will The Police Prosecute Someone For Taking A Prescribed Dosage?


At various stages, in a criminal proceeding, there are different standards of proof that come to bear. For example, one of the lowest standards of proof is reasonable suspicion. In order to make a motor vehicle stop in the first place, all the officer need is a reasonable suspicion that some traffic offense or equipment violation has occurred. It is not even the case of where they have to prove it at trial. As long as there is enough information to establish a reasonable belief that those offenses may have occurred, an officer is justified in making the stop. In order to make an arrest, an officer needs to meet the next highest level of proof which is probable cause.

When we are testing the probable cause from an arrest, what we are really saying is based on information available to the officer at the time, was he justified in taking the person into custody for the purpose of continuing his investigation? In the case of alcohol and drugs, that further investigation would include a breath test and then there is a drug recognition evaluation that we talked about before. Again, the only thing a person is required to submit to is a breath sample; they are not required to participate in the drug recognition evaluation or provide a blood sample or even give a urine sample. But again, people do it because they are ignorant of their rights.

The next level of proof we deal with and probably the most common one is something called a preponderance of the evidence. That is more likely than not, do certain facts exist and that is the level of proof that is generally applied in most civil cases when one person sues another and someone is hurt in a traffic accident or malpractice accident. The next highest level of proof is called clear and convincing evidence. That is the level that is applied to the admission of a drug, blood and breath test and that sort of thing. This is a very high standard of proof that has been defined in New Jersey as proof that is so clear direct and weighty as to cause the finder of fact to make a conclusion about the subject at issue without hesitation. A very high standard of proof.

Then of course the highest standard of proof, which is the one that exists at the end of the criminal trial and that is proof beyond a reasonable doubt. A person can be charged on very little proof. It goes all the way back at the reasonable suspicion and probable cause end of the spectrum. But in order to be convicted, in order to get the evidence over which they have complete control, they have to meet that clear and convincing evidence standard just to get the evidence before the court. Even then, after the court looks at everything, the trier of fact, the jury or the judge has to decide beyond a reasonable doubt, whether those facts established a person’s guilt. That is how people get charged, but not necessarily convicted. But, it is safe to say that in most of these driving under the influence of drug cases, more often than not, if the case is taken to trial, the defendant has a good chance of winning.

What Is An Appropriate Time To Inform The Police About Your Prescribed Medication?

Never. If police are asking you that question, it is because they are targeting you whether they let you know it or not. You have an absolute right to remain silent, so as a target, if a police officer asks you any questions at all, people think it is a choice between lying and telling the truth. They forget this third choice and that choice is to not answer any questions. “Have you taken any medication?” The most appropriate answer you can give is, “Officer, I don’t want to answer that question”, or, “Officer, I have nothing to say about that”. The cop is going to think you guilty as sin and he is going to also throw off a lot of negative body language.

You are going to see the eyebrows go up, you see the muscles tense, maybe the speech gets a little quicker, goes up a pitch, and the reason that is happening is because you are doing two things to this cop. Number one, you are violating their expectation. They are cops. They think they are entitled to deference to a large degree. They are clothed with the authority of the state. They asks questions, expect an answers and when you do not answer that question, you are violating that expectation. The second thing you are doing is you are frustrating their purpose because they are not asking you these questions because they are looking to help you out; they are trying to gather enough information to maybe justify arresting you and maybe even getting enough information to get you convicted. The best advice I can give anybody is when police officers ask you questions, do not answer them.

By the way, that applies to balance test as well. I understand that the law requires the person to do basically five things. If you are driving a car and you get the signal to pull over, you pull over, or if you are involved in an accident, just stay at the accident scene and that is the first thing you do. The second thing is if the officer asks you for driving credentials, you give them to the officer and you probably should have them in a convenient place and have them available even before an officer asks for them. The third thing the law requires you to do, is that if you are in your car and you are ordered to get out of that car, you get out of the car. The fourth thing the law requires you to do, is if you get arrested, you have to submit peacefully to the arrest.

Finally, the fifth thing the law requires you to do is that if you are asked to submit to a breath sample, you give them a breath sample test. That is the only test the law requires you to do. The law does not require you to follow a pen or finger with your eyes, to stand on one foot, to stand heel-to-toe or walk heel-to-toe, to recite the alphabet or count backwards, to touch your finger to your nose, to bend over the waist, to have your pulse or your blood pressure taken or to have your eyes examined. The law does not require any of those things. Indeed, my advice to people is do not do them when police are the ones doing it, because they are not there to help you; they are doing it to build the case against you and you do not have any obligation whatsoever to help them build that case.

For more information on Prosecuting A Prescribed 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.

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