HOW WOULD A PROSECUTOR GO ABOUT TRYING TO PROVE MY MARIJUANA DWI CHARGE

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Proving a driver is intoxicated with marijuana has become a little bit more difficult these days with the recent passage of amendments to our criminal statutes. However, prosecutor will usually try to prove it along the same lines as an alcohol DWI. According to these recent statutory amendments, police may not consider the odor of marijuana by itself as reasonable suspicion on which to continue their investigation. They need additional factors. So, police will note things like slurred speech, bloodshot eyes, fumbling hands while producing driving credentials, and admissions to consumption. Police will also consider the reason they pulled the driver over in the first place–i.e., how the driver drove. Odor will also come into play but not as a solitary factor. With such information, police will attempt (and likely succeed) to develop the reasonable suspicion needed to get the driver out of their car. Once the driver is out, police are free to do field sobriety tests just like they would do with an alcohol DWI.

How Reliable Are Chemical Tests Used by Law Enforcement in A DWI Investigation?

In every DWI investigation, there will be a breath test for alcohol. The Supreme Court of New Jersey considers breath tests reliable, provided the prosecution can lay a foundation showing that the equipment is working properly, the operator of the equipment is certified to do so, and the operator followed appropriate procedures in taking the breath samples. If the breath test result is at or above the legal limit of 0.08, police will conduct an ordinary DWI investigation. If the reading is a below that level, police will transition to a drugged driving investigation by way of a protocol called a Drug Influence Evaluation [“DIE”] which involves a police officer with special training called a DRE. To prosecutors, “DRE” stands Drug Recognition Expert. To defense attorneys, “DRE” stands for Drug Recognition Evaluator.

The DIE is a 12-part protocol carried out in 12 steps. One step requires the submission of a toxicological sample, usually urine. In unusual cases, police will get a blood sample. The State Police lab checks the samples using technologies called gas chromatography [“GC”] and mass spectroscopy [“MS”]. GC and MS are very reliable, provided the prosecution lays a proper foundation. The way the prosecution uses GS/MS is to do a qualitative rather than quantitative analysis. In other words, the tests detect the presence of a substance or metabolite but do not tell how much is there. Marijuana is interesting. Tests rarely detect THC, the psychoactive chemical in marijuana, directly. Instead, the test looks for something called THC COOH (carboxy-THC), a non-impairing byproduct of marijuana metabolization. Often, in such cases, the chemist can become the best defense witness in a marijuana intoxication case. The chemist will tell the judge, “Yes the test is positive for a non-impairing substance.”

What Happens if the Driver Refuses to Take the DWI Test for Marijuana?

There is no real consequence to refusing the urine or blood sample unless police get a warrant. The driver must submit breath samples; that’s required by law. If the person does not submit a breath sample, police will charge that person with breath test refusal. This generally ends the DWI investigation without a DRE investigation. Breath test refusal punishments for first offenders are more severe than those for DWI. Therefore, a driver should not refuse a breath test, particularly if they haven’t been drinking. They should always refuse to submit a urine or blood sample unless police obtain a warrant from a judge; you have no legal obligation to provide urine or blood samples without the warrant. The state only wants these samples to hurt you in court.

Do Police Have to Offer a Chemical Test During a DWI Investigation?

Police are required to advise you of your right to obtain an independent test of your blood, breath, or urine by reading a document called the N.J. Attorney General Standard Statement for Persons Arrested for Driving while Under the Influence. If breath samples yield low results, the arresting officer will refer the arrestee to the DRE. DRE protocol requires a request for a toxicological sample, almost always urine. Police are not required to provide the means by which to obtain that independent sample. It’s going to be up to the individual. If the individual can get the independent sample, blood is preferable.

Unfortunately, there is no legal mechanism to compel a doctor or a hospital to take that independent sample. I have had clients who created such a ruckus, they were threatened with arrest for disorderly conduct by the hospital. I remember one client in particular who accepted the consequence, got his blood test, and won his DWI case. Unfortunately, very few people get an independent test, and in those few instances when we have an independent test, half the time it helps, and half the time it does not.