Interviewer: Do you see many DUI cases due to drugs versus alcohol? Is a drug DUI harder to defend?
Ron Mondello: That depends. There are many fact based scenarios that could make one harder or easier to defend. For example, let’s assume you had ingested some type of sleeping pill but ran out to the store to quickly pick up something to eat and bring back home. Let’s also assume the effects of the sleeping pill began to start. Your vehicle crossed over the double yellow line several times because you are getting extremely tired from the sleeping pill. You are eventually pulled over by a police officer. Here is where the facts become very important.
Let’s assume the police officer who pulled you over is not a DRE (drug recognition expert) and the police officer does not request that you give a urine sample. The police officer merely conducts field sobriety tests, brings you down to the station to administer the breathalyzer and issues you a summons for DUI. This case will be much harder for the state to prove and hence much easier for the defense attorney to defend against.
Let’s assume the police officer is a DRE. The drug recognition expert will take your blood pressure and record other clinical signs that you were under the influence of some intoxicating drug. Let’s also assume that you do provide a urine sample and the lab certificate confirms that there is evidence of the sleeping pill’s compound in your system. This case will be much easier for the state to prove and much more difficult for your criminal defense attorney to defend against.
So we go back to the general answer that it depends and is based on the facts of your individual case. This is why it is extremely important for you to discuss your case with competent legal counsel.
Interviewer: Are there laws in your state that address drivers with a BAC below .08% or drivers who have drugs in their system but aren’t intoxicated while driving?
Ron Mondello: Earlier, I discussed the two-pronged approach that the State of New Jersey uses in order to convict you of a New Jersey DWI. The first prong is the per se violation. This simply means that an individual who was operating a motor vehicle in New Jersey with a blood alcohol concentration of .08% or higher is “per se” or “automatically” considered to be intoxicated. The second prong is a violation based on observations. Recall that the arresting police officer will administer numerous field sobriety tests for two reasons.
The first reason is to determine whether he has probable cause to take you down to the station to administer the breathalyzer. The second reason is to utilize those tests through his testimony at trial in order to convince the judge that you were intoxicated based on his observations of you performing those field sobriety tests. Therefore, you could be found guilty of driving while intoxicated based on your performance of the field sobriety tests. A blood alcohol concentration reading would not be required.
This is why I have advised many of my clients to be sure to take the breathalyzer especially if they truly only consume two or three drinks. If the blood alcohol concentration level is less than a .08%, the probability is very high that your DWI will be dismissed. Why? Well, we just said that a blood alcohol concentration of .08% is per se, automatically, or upon its face indicia that you are indeed intoxicated. A reading less than .08% is indicia that you are not intoxicated.
We did go into some detail about a New Jersey DUI that is driving under the influence of some intoxicating drug. There is such a wide variety of drugs that can result in some form of deleterious effects on oneself. There is also a very large combination of drugs that by themselves would not result in deleterious effects or intoxicating effects but when mixed with other similar drugs can result in deleterious effects or intoxicating effects. The subject is complex. Anyone charged with a DUI or DWI must consult competent counsel.