Marijuana and Drugged Driving

In New Jersey it is illegal to possess marijuana for recreational purposes and it is illegal to drive a motor vehicle while under the influence of marijuana. There are numerous charges that a driver may face when possessing marijuana and DWI. Those charges can be the following disorderly persons and traffic offenses:

  • 2C:35-10. Possession, use or being under the influence, or failure to make lawful disposition;
  • 2C:36-2. Use or possession with intent to use, disorderly persons offense;
  • 39:4-49.1. Drug possession by motor vehicle operator;
  • 39:4-50 Driving While Intoxicated.

Disorderly persons offenses in New Jersey for possession of marijuana and drug paraphernalia have a maximum term of 6 months in jail. For possessing marijuana in a motor vehicle, the driver faces a fine and two years of license suspension. A conviction for DWI will result in an additional license suspension, potential jail-time, fines, surcharges, and the requirement that the driver attend the Intoxicated Driver Resource Center. As one can see, these are serious offenses with serious consequences.

Nonetheless, marijuana possession and DWI-marijuana charges can be successfully challenged. Often, the DWI-marijuana case will be initiated when a police officer notices a minor motor vehicle violation. At the beginning of the investigation, the officer will claim that he or she smells the odor of burnt or raw marijuana in the vehicle. The officer may notice so-called indicia of marijuana use by the driver, such as bloodshot eyes, lethargic behavior, and the smell of burnt marijuana on the breath.

Once the officer suspects marijuana use, the officer will generally call for back-up and then conduct field sobriety tests. Following the field tests, there will be an arrest and search of the motor vehicle and driver. A “drug recognition expert” (DRE) may be called to the police station to conduct an evaluation. Finally, the police will demand a urine sample from the driver for testing.

The following areas must be rigorously explored and challenged in these cases:

  1. The presence of probable cause for the motor vehicle stop;
  2. The presence of reasonable suspicion to initiate field sobriety testing;
  3. The failure of standardized field sobriety testing to have any scientific validity for determining marijuana intoxication;
  4. The failure of the police to properly administer and evaluate field sobriety testing;
  5. The presence of probable cause to justify an arrest;
  6. An illegal search of the driver or motor vehicle for the presence of marijuana and drug paraphernalia;
  7. The lack of scientific validity of the drug recognition evaluation;
  8. The DRE’s failure to properly administer and interpret the drug recognition evaluation;
  9. The lack of constitutional authority to take urine samples from the driver;
  10. The proper chain of custody for the urine sample; and
  11. The accurate testing of the urine sample by the state laboratory.

A DWI and drug possession defense lawyer must explore all of these areas, at a minimum, in order to properly defend a driver accused of these offenses.