Can You Be Given A DUI If You Are Driving High?
Driving while Intoxicated (“DWI”) is defined in N.J.S.A. 39:4-50., this includes driving while under the influence of drugs. The difference between legal prescribed drugs and non-prescribed or illegal drugs can be significant in that a prescribed drug could be argued to have a therapeutic dose such that the substance may show up in your system and being under the influence so long as it does not affect your ability to operate a motor vehicle would be arguably acceptable. When it comes to illegal drugs and this covers prescription drugs without a prescription than there is no medical argument that the drug in a defendants system was a therapeutic dose as it was not prescribed by a doctor. If you are driving with a controlled substance in your system you could be charged with Driving Under The Influence Of Drugs.Whether a driver is impaired is determined on a case-by-case basis and at the discretion of the prosecution. The police in the prosecution of CDS, controlled dangerous substance, or illegal drug cases will generally use a DRE, Drug Recognition Expert, which is a police officer with specific training designed with the purpose of determining the type of drug a person may be under the influence of while driving.Unfortunately, unlike an alcohol DWI where there is a minimum BAC to provide a baseline for levels of intoxication, a blood testing standard has not been established in New Jersey for drugs in an individual’s system. This means that there is no fixed amount of drugs within the blood system that determines a minimum level. This makes it far more subjective when it comes to the state proving intoxication by drugs.The problem of the lack of standards is even more problematic when a urine test is used. Urine tests only show the presence of a waste material excreted from a prior use of a drug but do not provide any quantitative measure of the level or amount of the drug. Marijuana is probably the best example to prove the absurdity of the use of urine testing in the prosecution of a DWI. The nature of marijuana is such that it remains in your system for up to a month after ingestion. Often the police officer or DRE (DRUG RECOGNITION EXPERT) will ask for a urine sample to prove or validate their opinion as to what is in an individual’s system. However, taking a urine test really only confirms that the person has ingested marijuana sometime in the previous month before, yet prosecutors will use this test result at trial to prove marijuana was confirmed to be in the individuals system. The prosecution will use urine test to try to prove that the officer was correct and that the individual was under the influence at the time of the arrest. Drugs classified on the following schedules qualify as “narcotic, hallucinogenic or habit-producing.”
Can you be charged with refusal if you don’t give a urine or blood sample?
If a police officer suspects a driver of driving while intoxicated, they will likely request additional information to further investigate whether reasonable suspicion exists to warrant an arrest. Anyone who drives on the roads of New Jersey have given the police implied consent to test for alcohol if a driver is suspected of drunk driving. The implied consent was given at the time a person gets a driver’s license. These means if you have been stopped for driving under the influence you MUST provide the police with a breath sample in order to determine your blood alcohol concentration. Failure to do so will result with a driver being charged with refusal. This means that testing for an alcoholic substance is virtually automatic and any refusal is meant with harsh penalties. However, implied consent law does not require that an individual suspected of controlled substances submit to a chemical test, which could include a blood or urine sample, in order to screen for the presence of drugs in their body. You can voluntarily provide these samples to the police by no means is it necessary. The police cannot force you to give a blood or urine sample. There are no additional penalties if you do not provide samples. However, legislation is pending that may make this a penalty similar to alcohol so keep your eyes posted for that.
Defenses to Driving Under The Influence Of Drugs
If you are stopped for a possible DWI but the substance in your system is not alcohol, but rather a controlled substance, there are many defenses an experienced DWI and DRE trained lawyer can present. The defenses include issues regarding the DRE evaluation, issues whether the state obtained consent to draw blood or urine, whether the state obtained or was required to obtain blood or urine with a warrant. if a warrant was issued whether the warrant was valid, if blood or urine results were obtained are the results of blood or urine reliable, has the state provided all graphs, charts, notes and chain of custody documents required to track the blood or urine from blood or urine draw to the lab, qualifications and training of the lab and the lab technicians and scientists and the list goes on and on. The state has a much more difficult time making a credible case since it is very difficult to prove that the substance caused any impairment. However, there is often the issue of what the defendant told the officer and what did the officer find in the vehicle. The facts of the case will drive the defense in many instances. However, only an experienced and trained DWI attorney in your corner provide you a fighting chance to avoid a conviction for DWI.
If you are facing a driving under the influence of a Controlled Dangerous Substance it may be time to discuss your case with the attorneys of Villani & DeLuca, P.C. Call 732-800-7740 today for a FREE consultation.