NJ DUI Law - New Jersey DWI Drug Law Tiers

I. SUSTAINING A DWI DRUG CONVICTION MAY BE MORE DIFFICULT FOR THE STATE BECAUSE CONVICTION REQUIRES PROOF OF INTOXICATION WITHOUT QUANTUM, UNLIKE IN DWI ALCOHOL CONVICTIONS.

The State of New Jersey enacted the DWI statute to prohibit driving under the influence of either drugs or alcohol. N.J. Stat. Ann. § 39:4-50(a) (West 2010). While blood alcohol concentration (hereafter, “BAC”) levels are determined quickly and accurately, drug levels in the human system are not so easily detectable. Consequently, the DWI Statute fails to establish a quantitative threshold in determining whether a defendant is driving under the influence of drugs. N.J. Stat. Ann. § 39:4-50(a)(1)(ii) (West 2010).

Such drugs pertain to a wide array of legal and illegal substances classified as narcotics, hallucinogenic or habit-forming drugs. Id. These substances comprise ingredients found in chemicals ranging from the highly regulated such as heroine, to the widespread and accessible such as school glue. N.J. Stat. Ann. § 39:4-50(a)(3) (West 2010). More consequently, driving under the influence of blockbuster prescription drugs such as Xanax may be grounds for a DWI conviction. State v. Reiter, 2007 N.J. Super. Unpub. Lexis 2613, *2 (N.J. Super. 2007).

When a defendant is charged with DWI, the State bears the burden of proving beyond a reasonable doubt that the defendant violated the DWI drug statute by operating a vehicle while under-the-influence of drugs. State v. Bealor, 902 A.2d 226, 227 (N.J. 2006). Courts have held that under-the-influence constitutes a substantial deterioration of mental facilities or physical capabilities, rendering as inappropriate the operation of a motor vehicle. Id. at 235.

Furthermore the court must decide whether the defendant’s physical coordination and mental faculties is so effected by a drug so as to render the defendant dangerous to himself and to others. Id.

II. COURTS HAVE HELD THAT THE TESTIMONY OF A CERTIFIED DRUG RECOGNITION EXPERT IS REQUIRED TO SUSTAIN A PER SE CONVICTION.

The State is not required to identify the intake of a particular drugs in order to sustain a DWI conviction, rather a qualified observation of its effects may suffice. State v. Tamburro, 346 A.2d 401 (N.J. 1975). The type of drug taken is irrelevant; the primary issue in DWI drug cases is the effects of the drug and whether it impaired the defendant from safely operating a motor vehicle.

Nearly any competent individual may testify as to the effects of a drug on an individual, however such testimony when coupled with other evidence would only constitute a non-per se conviction, at best. On the other hand, sustaining a per se conviction requires the State to demonstrate expert testimony by trained professionals whose opinions have been held by the court to have greater weight in determining whether a DWI conviction is sustainable. Bealor at 233.

A qualified drug recognition expert (hereafter, “DRE”) will provide the State considerable grounds to sustain a per se conviction in a DWI drug case. Id. The court has suggested that the testimony of a DRE may, but not necessarily, alone suffice to sustain a per se DWI drug conviction. Bealor at 235. Whether this testimony alone suffices to sustain conviction is determined by a measure of the counter-evidence weighing against a conviction.

In Bealor however, the defendant was convicted for the non-per se violation of driving while under the influence of marijuana. Bealor at 232. While the conviction was based on the arresting officer’s non-expert opinion and additional evidence recovered from the defendant’s vehicle, the Bealor court added that a per se violation would require the testimony of a Drug Recognition Expert. Bealor at 237.

A DRE is trained to identify a drug-influenced individual by implementing a twelve-step process that culminates in determining whether an individual was operating a vehicle under the influence of a drug1. The court held that a defendant’s conduct and displayed symptoms are sufficient to lead a DRE to opine as to whether the defendant is under the influence of a drug. The testimony of a qualified DRE is admissible and often sufficient to sustain a per se DWI drug conviction. Bealor at 236. Furthermore, the testimony of a DRE is generally the most effective means of sustaining conviction in a DWI drug case. Bealorat 236; Reiter at *2.

In Reiter, the testimony of a qualified DRE was admitted to sustain conviction of a woman who was driving while impaired due to the combinatory intake of prescription drugs Xanax, Fiorinal and Ambien. Id.

III. COURTS HAVE HELD THAT COMPETENT LAY OBSERVATIONS ARE ADMISSIBLE BUT ALONE INSUFFICIENT TO SUSTAIN CONVICTION.

While laypersons opinions are sufficient to sustain a DWI alcohol conviction, a DWI drug conviction cannot be based solely on lay opinion. Bealor at 231. The Court held that general awareness as to the signs and symptoms of drug intoxication are not available as they are in alcohol intoxication. Id. at 234. Therefore, while the competent observations of laypersons may be admissible evidence, it is not sufficient to sustain conviction. Id.

When the testimony of a DRE is unavailable, the arresting officer’s lay opinion must be coupled with additional evidence to establish beyond a reasonable doubt that the defendant was in fact driving while intoxicated by drugs. State v. Smith, 276 A.2d 369, 374 (N.J. 1971).

In Bealor, the arresting officer was not a DRE however his lay opinion was coupled with additional and independent proofs that were sufficient to sustain a DWI conviction. The additional pieces of evidence included a glass pipe seized from the defendant and the defendant’s urine test. Bealor at 229.

IV. PENALTIES IMPOSED FOR DWI DRUG CONVICTIONS ARE PARALLEL TO 0.10% TIER DWI ALCOHOL CONVICTIONS.

DWI drug violations share the same penalties as DWI alcohol convictions in the 0.10% tier. N.J. Stat. Ann. § 39:4-50(a)(1)(ii) (West 2010). First-time violators are subject to a $300-$500 fine and a license suspension ranging from a minimum of seven months but no greater than twelve months. Id. Second time offenders are subject to a $500-$1,000 fine and required to perform community service for 30-days.

N.J. Stat. Ann. § 39:4-50(a)(2) (West 2010). Furthermore, second-time violators will be sentenced to imprisonment for at least forty-eight hours but no greater than three months. Id. Additionally, violators will be suspended of driving privileges for two years and will be required to install an ignition interlock device upon reinstatement of driving privileges. Id.; N.J. Stat. Ann. § 39:4-50.17(b) (West 2010).

Third time offenders are subject to a $1,000 fine and will serve and imprisonment term of six months. N.J. Stat. Ann. § 39:4-50(a)(3) (West 2010). At the court’s discretion, up to three months of the imprisonment sentence may be served in an alcohol rehab program approved by the Intoxicated Drivers Resource Center. Id. Furthermore, third-time offenders will be suspended of driving privileges for ten years and reinstatement will be on the condition of installing an ignition interlock device.

Furthermore, as in DWI alcohol convictions, enhanced penalties are imposed upon drivers who violate DWI statutes in school zones. N.J. Stat. Ann. § 39:4-50(g)(1) (West 2010). School zones include property owned or leased by school boards and any area 1,000 feet thereof. School zones also include designated school crossings or areas populated by juveniles. N.J. Stat. Ann. § 39:4-50(g)(2) (West 2010).

First-time offenders in school zones are subject to fines of at least $500 but no greater than $800 and imprisonment terms of no greater than 60 days. N.J. Stat. Ann. § 39:4-50(g)(3) (West 2010). Additionally, license privileges will be revoked for no less than one year and greater than two years. Id.

Second-time offenders in school zones are subject to fines of at least $1,000 but no greater than $2,000, two months of community service and imprisonment terms of at least four days but no greater than six months – three months of which may be served by community service at the court’s discretion. Id. Additionally, license privileges will be revoked for a period of four years. Id.

Third-time offenders in school zones are subject to fines of $2,000, two months of community service and imprisoned for six months – three months of which may be served by an alcohol rehabilitation program at the court’s discretion. Id. Additionally, license privileges will be revoked for a period of twenty years to commence upon the completion of any prison sentence imposed on the violator. Id.

The State bears no burden in proving that juveniles were actually present at the time of the violation or that the driver was aware that his violation occurred in a school zone. Id.

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