With the recent legislative enactments legalizing the use, possession, and sale of marijuana, many of our clients have asked how these laws will impact DWI defense in New Jersey. Obviously, it’s always hard to predict the future, especially when it involves what our courts will do. There are though, a few things we can be sure about.
Firstly, it seems certain there will be more DWI violations going forward with more drivers using marijuana. While the new laws decriminalize use, possession, and sale of small quantities of marijuana, they have no similar effect on current DWI laws. Those laws continue to make it a violation to operate a motor vehicle under the influence of essentially any substance that will “substantially diminish” or make “unsafe”, the driver’s ability to operate their motor vehicle. This makes sense. Nobody should operate a motor vehicle if it creates a danger to themselves or other people.
So, if it’s illegal to operate a motor vehicle under the influence of marijuana, how will police enforce, and prosecutors prosecute this violation? Under present case law, officers can testify as to a driver’s conduct observed by the officer. The officer can then relate how these observations suggest a driver to be under the influence of MJ based upon training they have received and their own life experience. Obviously, a driver’s admissions of recent use and the apparent odor of marijuana can assist in proving use of the substance.
State v. Olenowski, now before the New Jersey Supreme Court, will have a great impact on how the State might be able to prove intoxication from marijuana and other substances, going forward. In Olenowski, the court will decide whether “drug recognition evaluation,” can be used to establish non-alcohol intoxication in a DWI case. Drug recognition evaluation involves a combination of tests and observations, which are supposed to demonstrate whether a driver is under the influence of marijuana or other substances.
Defense attorneys have challenged the scientific reliability of these procedures, claiming that resulting opinions of intoxication are simply not reliable to the extent they can be considered when determining someone’s guilt in a DWI case. Our law requires that courts must be convinced that test results offered to establish the condition of a driver, be scientifically reliable. Simply stated, the court cannot convict based upon test results, until the court is convinced that the test accurately identifies marijuana or other type of intoxication. The court’s opinion in should be coming within the next few months.