I often represent clients who are charged with driving under the influence of drugs (which is known as driving while intoxicated (DWI)) throughout New Jersey. Driving under the influence of drugs is governed by the driving while intoxicated statute, N.J.S.A. 39:4-50, which provides in pertinent part:
For a first offense:
(ii) if the person’s blood alcohol concentration is 0.10% or higher, or the person operates a motor vehicle while under the influence of narcotic, hallucinogenic or habit-producing drug, or the person permits another person who is under the influence of narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control, or permits another person with a blood alcohol concentration of 0.10% or more to operate a motor vehicle, to a fine of not less than $300 nor more than $500 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers established under subsection (f) of this section and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year;
With regard to proving a drug DWI in New Jersey, the proofs are obviously very different from an alcohol case. In an alcohol DWI case, the State uses the Alcotest 7110 breath testing device to prove that the driver was operating a motor vehicle while under the influence of alcohol. With a drug DWI case, the State uses a Drug Recognition Expert (known as a “DRE”) who is a law enforcement officer trained to detect whether or not the driver is under the influence of drugs. This DRE performs a series of tests on the driver at the police station and makes a determination as to whether or not the driver is under the influence of drugs. The DRE also generates a detailed report as to the findings of the testing. Moreover, the State often takes a urine sample of the driver to test for drugs in the defendant’s system. However, the urine analysis on its own is not necessarily conclusive because, for example, marijuana stays in the defendant’s system for approximately thirty (30) days after use, and, therefore, does not conclusively establish that the driver was under the influence of drugs at the time of operation of the vehicle. On the other hand, the combination of a DRE evaluation and a positive urine test may be enough to convict the driver of driving under the influence of drugs.
Remember, a DRE is basically just a law enforcement officer who has taken a class as to detecting whether or not the driver is under the influence of drugs. A DRE is not a doctor and his or her testimony and report is subject to attack by cross-examination in court. Further, a drug DWI is essentially the same as an alcohol DWI on your record as they are governed by the same statute. Thus, if you have a prior alcohol DWI offense on your record and you are charged with a drug DWI within the next ten (10) years, you are facing penalties for a second offense DWI in New Jersey which includes a two (2) year license suspension and up to ninety (90) days in jail.