I. BIOLOGICAL EXAMS SUCH AS URINE AND BLOOD TESTS REMAIN SIGNIFICANT TYPES OF EVIDENCE IN SUSTAINING DWI CONVICTIONS, ESPECIALLY IN THE ABSENCE OF TESTIMONY FROM A DRUG RECOGNITION EXPERT.

The State of New Jersey allows the use of urine and blood tests to establish that a defendant was driving while under the influence of alcohol and drugs. N.J. Stat. Ann. § 39:4-50 (West 2010). New Jersey Law requires all drivers to consent to submitting urine and blood samples upon an officer’s request. N.J. Stat. Ann. § 39:4-50.2(a) (West 2010). Furthermore, urine and blood tests require laboratory analysis, which renders the technique inadequate as an immediate means of alcohol and drug detection. State v. Di Carlo, 338 A.2d 809, 810 (N.J. 1975).

Urine and blood tests are most frequently used in DWI drug cases, where drug intoxication is not readily detectable. While DWI alcohol violations are defined in quantum, in DWI drug cases, the State bears the burden of proving that a drug take was the proximate cause of the defendant’s “impaired behavior”. State v. Franchetta, 925 A.2d 745, 748 (N.J. Super. 2007).

Proving drug intake may be established by a positive test for the presence of drug metabolites in the defendant’s urine or blood sample. When such evidence is coupled with observations and evidence of a defendant’s conduct, the State will likely sustain a DWI drug conviction. Such testimony includes the observations of a defendant’s “lethargic behavior”, “slurry speech” and “watery eyes”. State v. Reiter, 2007 N.J. Super. Unpub. Lexis 2613, *2 (N.J. Super. 2007).

Furthermore, pharmacological activity of the metabolite in the urine or blood sample is irrelevant in sustaining conviction; the State must only prove that the drug intake was the proximate cause of the defendant’s impairment. Franchetta at 745.

In Reiter, the arresting officer was a Drug Recognition Expert (hereafter, “DRE”). Such experts are extensively trained in drug recognition and the testimony of a DRE bears considerable weight that may alone sustain a per se DWI drug conviction. State v. Bealor, 902 A.2d 226, 235 (N.J. 2006). The Reiter court convicted the defendant by favoring the testimony of a DRE over the results of a urine sample, which tested negative for recent (3-4 days) intake of Fiorinal, a prescription drug whose overdose may cause impairing behavior. Reiter at *3.

In Bealor however, a DWI drug conviction was sustained on grounds of (1) urine test that tested positive for marijuana metabolites (2) the lay-person (non-DRE) observations of the arresting officer and (3) the physical evidence of a smoke pipe and marijuana found in the defendant’s car. Reiter and Bealor provide contrasting limits of the court’s use of urine and blood samples, in convicting defendants in DWI cases. While the court explicitly expresses its preference for the use of DRE testimony, urine and blood samples remain highly applicable, particularly in the absence of expert testimony. Bealor at 237.