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Drunk Driving (DWI/DUI) & Municipal Court Articles

• NEW JERSEY'S DRUNK DRIVING (DWI/DUI) STATUTE AND THE ISSUE OF OPERATION
• Drunk Driving in New Jersey: The Articuable Suspicion and Probable Cause Standards
• The Expert Witness Myth in a Drunk Driving (DWI/DUI) Case where the Intoxicant is a Drug
• Baby Boozers: The Consequences of Underage Drinking in New Jersey (3 of 3)
• Baby Boozers: The Consequences of Underage Drinking in New Jersey (1 of 3)

The Expert Witness Myth in a Drunk Driving (DWI/DUI) Case where the Intoxicant is a Drug

New Jersey's driving-while-intoxicated statute prohibits not only the operation of a motor vehicle while under the influence of intoxicating liquor, but also operation when the driver is under the influence of a narcotic, hallucinogenic or habit forming drug.

For decades, defense attorneys in New Jersey have successfully curtailed the testimony of an arresting or investigating police officer who was prepared to testify that symptoms of intoxication shown by an arrestee were grounded upon the use of a controlled dangerous substance (i.e. marijuana, cocaine, amphetamines, etc.), as opposed to alcohol. The intellectual core for objections to this type of testimony was based on a realization that while a police officer could as a layman, testify that a person appeared to be under the influence of alcohol because the symptoms of that condition have become "common knowledge" to the average person, that same general awareness is not yet evident when it comes to the symptoms of drug use.

Thus, if a person is arrested for driving while intoxicated, where the breathalyzer indicated a low blood alcohol level, yet symptoms of intoxication were present, the government would be required to produce an expert witness to establish that the intoxication was caused by a narcotic, hallucinogenic or habit-forming drug.

In the last few years, this principle of evidence, like many others in this area of the law, has been diluted by an opinion in a New Jersey Supreme Court case involving intoxication induced by marijuana use . Factually, the case was one where the defendant was visibly intoxicated, smelled of marijuana and had in his pocket a smoking pipe with residue that was later determined to be marijuana by appropriate scientific analysis. In addition, an analysis of the defendant's urine established the presence of marijuana in his system.

Although the defendant was convicted at the municipal court level, that conviction was reversed on appeal because, in the words of the appellate court, "marijuana intoxication . . . is not a matter of common knowledge such that an inference of intoxication may be drawn solely from a lay witness testimony respecting defendant's behavior." Continuing, the appellate court said that the conviction had to be reversed because the government did "not present any evidence linking defendant's driving or post-arrest conduct with marijuana intoxication."

The appellate court's decision was reversed by the Supreme Court, however, and the defendant's conviction reinstated. Although that court reaffirmed the rule that only an expert could testify that a subject's symptoms of intoxication resulted from drug use, it concluded that the facts of the case, subject of the appeal, warranted a conviction because of the presence of the marijuana pipe, the smell of marijuana on the defendant's person and the post-arrest blood test to establish the presence of marijuana in defendant's blood.

Moreover, and perhaps more importantly, the court departed from its well-established policy to narrowly limit its decision to the issues framed by the appellate process and concluded that, in view of their training police officers were capable of being qualified as experts on the issue of marijuana intoxication.

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