Drugged Driving

While we await the return of DUI checkpoints to the Jersey Shore, the Law Office of Frederick P. Sisto is happy to provide tips to help you avoid a wrongful DUI conviction. 

With the legalization of recreational marijuana in NJ, there will likely be an increase in charges for driving under the influence of marijuana. While there is not yet a machine like the Alcotest for law enforcement to use to prove marijuana intoxication, there are so-called “drug recognition experts” (DREs) who are used in drugged-driving cases.

The reliability of the (junk) science employed by DREs is at issue with a hearing that is pending before the New Jersey Supreme Court in the Morris County case of State v. MIchael Olenowski. The principal issue is whether the “expert” testimony of a certified DRE is scientifically reliable and admissible under our Rules of Evidence.

If you are suspected of drugged driving, the most important thing that you can do to protect yourself is to politely refuse to make any statements concerning the ingestion of drugs. While there are 12 components of a DRE evaluation, the “expert opinion” is most often based on the defendant’s admission to drug ingestion. The best course of action is to politely refuse to answer any questions aside from those pertaining to basic pedigree information like your name, date of birth, and address. It is also best to politely refuse to consent to a blood or urine sample unless there is a court order to provide one. 

While you are at it, you should politely refuse to perform any roadside testing and the DRE evaluation. The DRE evaluation includes: taking your pulse, eye exams, psychological tests, a muscle tone examination, and related questioning. 

Note that you are required to submit to breath testing on the Alcotest machine or you will be charged with refusal to submit to breath tests in addition to DUI. It is best to provide breath samples unless it is a first offense DUI and you are substantially certain that your blood alcohol concentration (BAC) is .15 or above. 

If you are charged with drugged driving, it is important to hire a qualified criminal defense attorney as soon as possible. Aside from DREs tailoring their “expert” opinions to be consistent with defendants’ admissions to drug ingestion, they also tailor their opinions to be consistent with the results of blood and urine tests. An experienced DUI attorney will know how best to obtain the DREs report before the blood or urine test results are produced by the lab. Then, an “expert” opinion that is inconsistent with the lab results can be used to raise reasonable doubt. If the DRE has the lab results before s/he produces their written report, s/he can tailor their opinion to make their evaluation seem scientifically reliable.

Stay tuned for additional tips and remember that the best DUI defense is a designated driver. Have a good week-end!