What Is the Current Marijuana DWI Law in New Jersey?

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It’s a whole new world.

Pursuant to a referendum that was overwhelmingly accepted by the electorate in November, possession of marijuana is legal as of January 1, 2021. Legislation passed in late March established new legal limits. Certain police behavior has been criminalized.

Right now, possession of more than six ounces of marijuana including adulterants and dilutants is a fourth degree crime, meaning that one could theoretically be subjected to an 18-month jail term. Less than six ounces of marijuana or 17 grams of hashish is legal. Possession of up to one ounce of psilocybin or “magic mushrooms” (as some of my friends like to call them) is now a disorderly person’s offense instead of a third degree crime. Under the Criminal Code, being under the influence of a controlled dangerous substance, even if prescribed, is still a disorderly persons offense unless you are under the influence of marijuana or hashish. It is also no longer an offense to transfer, possess, or take delivery of more than one ounce of marijuana or five grams of cannabis resin.

These new legal limits are intended to reduce or prevent pretextual stops and arrests and to protect commercial interests associated with legalization.

How Will the Legalization of Marijuana in New Jersey Affect the Number of DWI Arrests?

The legislation has declared that the odor of marijuana or alcohol is no longer a factor that can support reasonable suspicion to stop or search anyone except in a school or jail. The legislature has made it a third-degree crime for a law enforcement officer to rely solely on such odors, thereby subjecting the officer to potential criminal liability. But an officer can still rely on other observations to support an arrest. For DWI, officers typically rely on observations like erratic driving or an equipment violation to justify a motor vehicle stop. They will describe bloodshot watery eyes, slow fumbling hands, and slurred speech to support the reasonable suspicion necessary to order a driver out of the car. Once out of the car, officers use so-called “standardized field sobriety testing” or “SFST”–tasks like standing and walking heel-to-toe or standing on one leg–to establish probable cause for a DWI arrest. Thus, to avoid potential criminal liability, the officer can easily justify a DWI arrest without regard to odor.

While decriminalizing marijuana possession and neutralizing the odor of marijuana and alcohol as a reasonable bases on which to stop or as probable cause to search someone, the new marijuana laws may lead to an increase in DWI arrests. All an officer needs to justify a DWI arrest is probable cause–a little bit more than reasonable suspicion–to believe that further investigation for DWI is warranted.

Will Law Enforcement Undergo Additional Training to Investigate Marijuana DWIs?

The new law does provide for additional training, apparently endorsing the use of a technique called a drug influence evaluation [“DIE”] by an officer specially trained as a so-called “drug recognition expert” [“DRE”]. That’s what the statute calls them. But there’s an irony. The DIE protocol and DRE opinion based on that protocol is being actively litigated in New Jersey in a case called State vs Olenowski in which I represent the New Jersey State Bar Association as a friend of the court. In that case, the N.J. Supreme Court appointed a special master to take testimony and consider evidence as to whether the DIE protocol and DRE opinion are scientific reliability. From the evidence seen so far, it’s doubtful the Court will come to that conclusion. This would call into doubt the legislative policy supporting the DIE evaluation protocol and DRE training.

Officers will also need additional training generally to avoid using odor or possession alone as a basis for stops and searches. That training is for their own protection, because if they use odor and/or possession as the sole basis on which to make a stop or arrest, the officer will subject himself or herself to being charged with a crime.

What Is the Protocol Followed to Determine Whether Someone Is Driving Under the Influence of a Substance Other than Alcohol?

The usual principles of DWI investigation still apply. Officers will still note any odors of alcohol or marijuana and scan for any such intoxicating substances in plain view. They will also engage in more questioning of the driver to develop the reasonable suspicion or probable cause that the driver is under the influence. Keep in mind that DWI is an offense distinct and separate from mere possession of marijuana and alcohol. If the officer develops reasonable suspicion that the driver may be under the influence without consideration of odors, the officer would still have the right to ask that driver to step out of the car and do field sobriety testing. Most drivers will give in to these requests. An interesting question is going arise if a driver declines to do field sobriety testing. Will the officer have probable cause? Will the officer be willing to risk being charged with a crime? We’ll have to see how that turns out.

If an Officer Just Smells Marijuana or Sees a Joint, Can that Officer Begin a DWI Investigation in New Jersey?

No. The odor or possession alone is no longer enough under current statutes. Officers will need something more.

For more information on Current Marijuana DWI Law in New Jersey, a free 20 minute consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.