Can Police Request Standardized Field Sobriety Tests In A Marijuana DWI Case?
Officers will still ask drivers to perform so-called standardized field sobriety testing [“SFST”]–i.e., horizontal gaze nystagmus eye test and walk-and-turn and one-leg-stand balancing tests. Officers will still nitpick these tests and identify “clues” and use them to justify a DWI arrest. The tests are not validated according to the National Highway Traffic and Safety Administration [“NHTSA”] to determine marijuana intoxication, but traditionally courts have been indulgent of officers who are investigating potential violations of the law. I really don’t expect there to be much of a change in that area.
However, drivers are not required to perform SFST. A driver, or someone suspected of driving, is required to do five things in New Jersey: (1) If the driver receives the signal to pull over, the driver must pull over, or if the driver is involved in an accident, the driver must stay at the scene. (2) A driver is required to provide driving credentials when a police officer asks for them. (3) If the officer orders the driver to get out of their car, the driver must get out. (4) If the officer determines to arrest the driver, the driver must submit peacefully to the arrest. (5) If the officer asks the driver to submit breath samples, the driver must submit those samples. A person has no obligation to provide a blood sample or a urine sample unless the police obtain a warrant.
A person has no obligation to do field sobriety tests. Often, prosecutors will use a refusal to do field sobriety testing to argue that the court should infer that the person refused because they knew they were under the influence. If you refuse the field sobriety testing, it’s usually a good idea to do so while expressing a belief in your right to do so–e.g., “On the advice of my attorney, I’m not doing any balance tests.” That makes the more likely inference an exercise of your rights as opposed to some knowledge of guilt.
What Other Methods Do Police Use to Determine Whether or Not a Driver Is Impaired by Marijuana in New Jersey?
Talking is the big enemy of most people. They say too much. For example, I had a fellow who was pulled over for a rather innocuous traffic offense and asked to submit to field sobriety testing. He admitted to doing a few “dabs” (hash oil) a couple of hours earlier. He could not do the balance tests to save his life, and as he pinwheeled through the one leg stand, he said, “I must still be feeling it.” That statement was enough to get him convicted of DWI as a result of consuming marijuana. So, police officers do pursue some other very traditional means such as (1) constant questioning of the suspect to get the suspect to say something incriminating and (2) asking the suspect to perform balance tests.
Can I Refuse a Request for a Blood Draw or Chemical Test in a Marijuana DWI Investigation? What Are the Consequences of a Refusal?
That depends. Officers are entitled to ask for breath samples without a warrant, even if alcohol is not the suspected intoxicating agent, on the theory that breath testing will rule out alcohol intoxication. Absent some debilitating injury in an accident, officers will typically not request a blood sample but, instead, ask for a urine sample. Whether the request is for blood or urine, you have no legal obligation to provide that sample unless the officer applies to a judge for a search warrant. If the officer does obtain a search warrant, you must submit the blood or urine sample or face prosecution for the offense of obstructing the administration of justice. The driver should never consent to providing a blood or urine sample and make the officer get the warrant.
Does the Chemical Testing for Marijuana in NJ DWI Cases Show the Actual Level of Impairment?
Most testing of biological samples for marijuana are qualitative tests–i.e., they merely show the presence of the substance or it’s metabolites. No quantification is done in New Jersey DWI cases, so there is no way to determine how many nanograms of a drug or its metabolites are in a person’s system. Typically, lab results will only show the presence of inert marijuana metabolites such as THC-COOH, carboxy cannabinol, which has no direct relationship to impairment by cannabis.
While prosecutors love laboratory testing of biological samples, from the defense perspective (assuming the defense attorney knows what he or she is doing) the chemist can be the best witness for the defense. I recently had a case where the prosecutor called the chemist. She was very experienced and, atypically, had some training in pharmacology. On cross-examination, I asked, “Is this test merely qualitative?” and “Is it true that the substance detected has not impairing effect?” She agreed. These answers were a revelation to the judge, who actually engaged in his own cross-examination, and the chemist confirmed that the substances detected in the sample had no impairing effect.
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