New Marijuana Search Case, State v. Mendel

Marijuana arrest

In a new case decide earlier this month, the New Jersey Appellate Division ruled that a police officer did nothing wrong after sticking his head inside of an open car window while speaking to the driver, even if this allowed him to discover evidence of marijuana usage inside. In doing so, he did not violate the 4th Amendment rules regarding search and seizures. Typically, a police officer would need reasonable suspicion that a crime is being committed before he can conduct a search. However, the police officer in this case only put his head in the window because he could not hear the driver over the noise of traffic.

This is important because evidence obtained in a search could lead to charges for driving under the influence of marijuana or other drugs – if a police officer observes drugs or signs of drug use in a vehicle, the officer might believe that the driver is intoxicated while driving. With the laws in New Jersey changing to make it easier to obtain legal marijuana in the future, this is an extremely important development, as the number of drivers who may be driving in possession of marijuana is expected to go up, and this could lead to police bring DUI charges against drivers more easily.

State v. Stephen Mendel

In State v. Stephen Mendel, a police officer pulled a vehicle over after observing it drive by with dark tinted windows. The police officer came up on the passenger side of the vehicle to talk with the driver. The officer asked the driver to produce his driver’s license and inquired about his driving record. During the conversation, the police officer leaned his head into the open passenger side window in order to hear better. While speaking to defendant, he smelled the odor of marijuana coming from inside the vehicle.

The defendant-driver argued that police officer’s actions should be considered a warrantless search, and the search was unreasonable, which would mean that the evidence was inadmissible and had to be thrown out of the case. The New Jersey Appellate Division decided that a driver does have a legitimate expectation of privacy on the interior of his vehicle. However, even if this is considered a search, the 4th Amendment only protects from unreasonable search and seizures. Because the officer’s act of putting his head inside the vehicle to hear better was still reasonable, the evidence could be admitted as part of the case.

The driver was charged with the disorderly persons offense of marijuana possession, N.J.S.A. 2C:35-10(a)(4), and improper safety glass, N.J.S.A. 39:3-75.

State v. Bealor

Although the driver in State v. Stephen Mendel was not charged with DUI or DWI, it is possible that these same circumstances could lead to more drivers being charged with driving under the influence of marijuana in the future. In State v. Bealor, a case from 2006, the New Jersey Supreme Court determined that the government can use circumstantial evidence to determine that a driver is operating a vehicle while intoxicated due to marijuana. Proofs in the Bealor case included the smell of burnt marijuana on defendant. Therefore, based on these two cases, police officers may be more likely to bring charges for DUI in the future, if the Courts are more willing to consider these kinds of searches as reasonable.

How an Attorney Can Help

If you or someone you know is charged with DUI or DWI as the result of drugs or alcohol, the circumstances surrounding the arrest and charges will be very important. A good attorney will analyze every aspect of the facts in your case in order to determine if the police officers acted legally and responsibly in bringing the charges against you. If an officer does violate the 4th Amendment and commits an unreasonable search and seizure, or otherwise investigates you in a way that is not allowed by the law, any evidence obtained could be excluded from the case. For instance, observations that lead to a charge for drunk driving or driving under the influence could be deemed inadmissible. This could lead to the charges against you being thrown out or dismissed completely.

New Jersey DUI Attorney Edward M. Janzekovich Will Fight to Protect Your Rights

If you or someone you know has been arrested, charged, or convicted for driving under the influence of alcohol or drugs, you need a good lawyer to review the case. An experienced attorney will be able to review the facts and decide if any of your rights have been violated or if you’re entitled to a dismissal. A good lawyer can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Aaron Carter’s Arrest and Driving Under the Influence of THC and Other Forms of Marijuana

On July 17, singer Aaron Carter, 29, was arrested in Habersham County, Georgia on suspicion of driving under the influence of drugs and possession of marijuana. He was arrested at approximately 9pm in the rural county north of Atlanta. According to Habersham County Captain Floyd Canup, Carter is currently facing several charges including DUI, possession of less than 1 ounce of marijuana and possession of drug related objects. Carter was in a vehicle with his photographer girlfriend, Madison Parker. She was also arrested and charged with obstruction and two drug-related charges.

Interestingly, authorities did not find Carter with green or leafy marijuana. Carter has tweeted that he holds a medical license for medical marijuana. Georgia’s medical marijuana program only provides for low-concentration THC oil and official statements have responded that Georgia law does not allow for the type of marijuana found during the arrest. It is unclear from reports what other form of marijuana Carter had – whether it was marijuana edibles, high concentration THC oil, a THC inhaler, or some other product.

New Jersey and Medical Marijuana

If Carter had been found driving while intoxicated due to marijuana in New Jersey, he still could have been charged under New Jersey’s laws. New Jersey, like Georgia, has a medical marijuana program. Earlier this year, the number of enrollees in the program surpassed 10,000 active members for the first time.

Importantly, New Jersey law does not allow any driver to drive while intoxicated, regardless of whether or not he or she is intoxicated due to a legally prescribed or obtained medication. This means that it may not be a defense that a driver is part of the medical marijuana program if it can be shown that the driver was intoxicated and the driver’s impairment was such that he or she posed a danger to him or herself or others on the road.

Furthermore, unlike some other states, New Jersey’s medical marijuana law does not allow persons with an out-of-state medical marijuana license to possess marijuana in the state without also having a New Jersey medical marijuana license.

DUI/DWI and Marijuana or THC in Other Forms

Similarly, New Jersey does not allow a driver to drive while high due to marijuana regardless of the form the marijuana takes – including “pot brownies” or vapor pens or any other form of THC that can be ingested or absorbed by. Indeed, THC (tetrahydrocannabinol), the chemical compound in marijuana, comes in many forms now than it ever has before. Gummy bears, soda, flowers (buds), dabs, concentrates, vapor pens, salves, just to name a few.

Although driving under the influence of marijuana was traditionally due to driver’s smoking marijuana before or while getting behind the wheel, Aaron Carter’s arrest mirrors a common arrest scenario that is happening across the United States every day. More and more commonly, the basis for the intoxication is use of marijuana in non-smoked form. An officer will not be able to provide grounds for the arrest based on smelling burnt or raw marijuana inside of a vehicle. Instead, the officer will need to determine whether or not a driver is intoxicated based on other observable reasons, and will require a legal reason to pull the driver over in the first place that does not include smelling marijuana.

Because the field of driving under the influence of marijuana is constantly changing, it is more important than ever to contact an experienced DUI/DWI lawyer if you or anyone you know is ever arrested or charged with driving while high. A good attorney will be able to take the time to sit down with you and review your case, explain what consequences you are facing, and determine any possible defenses you may have, particular in light of laws that can change at any time.

New Jersey DUI/DWI Attorney Edward M. Janzekovich Can Help Those Charged with Driving While High

A charge for operating a motor vehicle while under the influence of drugs or alcohol can result in serious and complicated penalties that affect you and your loved ones. If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, including marijuana, it is extremely important to contact an experienced DUI/DWI attorney who can explain what rights you have. A good lawyer can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the State of New Jersey.

New Jersey Drunk Driving Attorney Discusses DUI Appeals and What Your Options Are If Convicted

A shot of liquor and keys on a table

If you are arrested and charged with driving under the influence of alcohol or drugs, we always recommend that you consult an attorney as soon as possible. An attorney can review your case, tell you what penalties you may be facing, negotiate to help get you a better deal, or potentially fight your case and get the charges against you dismissed completely.

But what if you have already been convicted? At that point in time, it may feel like your case is over and you just need to deal with the consequences, including fines, jail time, and loss of driving privileges. However, if you have already been convicted, an experienced DUI lawyer may still be able to help. Your case may not be over, after all, and you may still be able to have your sentence changed or the charges against you dismissed if the municipal court committed a miscarriage of justice – meaning it did something wrong or against the rules.

Appellate Courts in New Jersey

In New Jersey, you have the right to appeal any case, including a DUI conviction, within 20 days of your case ending. If your case went to trial in a municipal court, where many DUI/DWI cases are heard, then you will be appealing your case to one of the State Superior Courts – almost every county has its own Superior Court.

If your case was originally heard in the Superior Court of New Jersey, or if the Superior Court rules against you on your first appeal from municipal court, then you have a further right to appeal your case to the New Jersey Appellate Division.

When Can a Lawyer File an Appeal in Your Case?

There are many reasons why a DUI attorney may be able to appeal your case. For example, there may have been legal errors during the municipal trial, or the procedural requirements required for a legally sufficient guilty plea may not have been met. You may have also entered a conditional guilty plea, which allows you to plead guilty while still reserving your right to appeal adverse rulings on certain pre-trial motions. Additionally, your speedy trial rights or Miranda rights may have been violated or the sentence imposed upon you might even be illegal.

Finally, it is your right to insist that you did not commit the crime of driving under the influence of drugs or alcohol and a municipal appeal allows a new trial on the record before a new judge. An experienced DUI/DWI attorney can argue that the evidence below simply should not firmly convince the Law Division judge of the defendant’s guilt as a matter of law.

How Does a Lawyer File an Appeal on Your Behalf?

Filing a judicial appeal can be a complicated matter. For that reason, it is especially important to consult with an attorney who is experienced in representing clients who have been charged or convicted with driving under the influence of drugs or alcohol. An experienced lawyer will know how to file an appeal within the time limit, and know how to extend the time limit under certain circumstances. An experienced lawyer will also be able to write and file the necessary briefs, notices of appeal, and court costs on your behalf within the required time limits. Finally, a knowledgeable attorney may be able to postpone any sentences that have been entered against you while the appeal is pending, such a jail sentence or loss of license, and then argue the appeal before the panel of judges when your case is scheduled for oral argument.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can Help if You Have Been Charged or Convicted with a DUI

If you or someone you know is charged for any crime relating to driving under the influence of alcohol or drugs, it is extremely important to contact an experienced DUI/DWI attorney who will explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer will also argue on your behalf and may be able to have the charges dropped entirely. Having an experienced drunk driving lawyer can make all the difference. To speak with an experienced New Jersey DWI/DUI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Potential New “Breathalyzer” That Can Detect Marijuana Use While Driving

Man driving and smoking joint

Stanford University recently announced that they have successfully developed a device to measure the amount of marijuana in a person’s body. Unlike a traditional breathalyzer, which can measure the amount of alcohol in your breath to determine your blood alcohol content (BAC), the new device called a “potalyzer” can measure the amount of tetrahydrocannabinol (THC) in your saliva. Although this is not yet being used by law enforcement in New Jersey, it is extremely important because it means that police may soon have a scientific way of testing to see if you have been driving under the influence of drugs like marijuana simply and quickly. The timeline for implementing this or another similar test may move very quickly, because it is possible that lawmakers will consider legalizing small quantities of marijuana for medicinal or even recreational use in the future.

Developed by Dr. Shan Wang of Stanford University and his team, the potalyzer uses magnetic biosensors to detect THC molecules in saliva. Reports indicate that the new tool is accurate enough to detect as little as 0 to 50 nanograms of THC per milliliter of spit. This is big news, especially for states where marijuana use has been legalized. While those states continue to have DUI/DWI laws outlawing driving while impaired (this includes via marijuana use), up until now, law enforcement have had difficulty prosecuting such a crime, because they could not prove when or how much marijuana someone has consumed. Unlike alcohol, THC (marijuana’s main psychoactive component) remains in one’s blood much longer than alcohol, meaning you could still test positive for marijuana use even if the marijuana is no longer affecting your ability to drive.

For states like New Jersey, where marijuana laws are much stricter, the new potalyzer could actually increase the likelihood that marijuana will be legalized for additional uses, because the inability to enforce marijuana DUI laws will be less of an issue. Now, by being able to measure THC levels, not just its presence, science can begin to correlate certain levels with driver impairment and then create impairment standards. This is essentially like BAC laws that exist for alcohol, but based on the amount of marijuana in a person’s saliva.

Like the breathalyzer, the potalyzer may also prove popular because it does not require taking a blood sample or involve other extremely invasive measures. The test involves mixing some of a driver’s saliva with antibodies that bind to the THC molecules and act as markers. The sample is then spread on a test strip that’s been pre-coated in THC and loaded into a handheld measuring device, to determine how much unbound THC remains. By doing this, the system can accurately estimate how much THC was present in the driver’s saliva, and the results can be displayed quickly.

Interestingly, researchers suggest that this new technology can also reportedly be applied to almost any small molecule including morphine, heroin, methamphetamine or any number of controlled dangerous substances. Because many drugs are used by smoking or inhaling, this new technology could lead to a number of quick, saliva-based drug tests in the future that will affect how driving under the influence of drugs (DUID) laws are enforced.

The Need for an Experienced DWI / DUI Attorney

Obviously, before this test is implemented anywhere, further research will be needed to see how a driver’s tolerance impacts his or her ability to handle different amounts of THC to determine specific legal limits. With this new device, however, it will likely come sooner rather than later. Regardless of whether or when this device is implemented, New Jersey law still holds that if you have used a substance that would change your normal physical coordination or mental abilities to the point that you can be considered a danger to yourself or others on the road, then you may be charged with DUID. The consequences of driving under the influence of drugs are very serious and can include fines, loss of driving privileges, or even jail time.

Because DUID laws are always changing, a DUI attorney will be able to take the time, sit down with you and review your case, and explain what consequences you are facing in your specific situation. If you go to court, an experienced lawyer can help argue on your behalf to get you the best result possible.

New Jersey DUID Attorney Edward M. Janzekovich Can Explain and Fight for Your Rights

Because defending against charges of driving under the influence of drugs can be very complicated, it is important to get an experienced DUI/DWI attorney in any situation where you or someone you know is charged. If you are charged with driving under the influence of drugs or alcohol in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.

Driving Under the Influence of Drugs, Including Cocaine, Heroin, Meth, and Other Substances in New Jersey

A police officer holds the breath test machine for a suspect to blow into with a police car in the background.

Under New Jersey law, N.J.S.A. 39:4–50(a), you cannot drive a motor vehicle if you are “under the influence… of a narcotic, hallucinogenic or habit-producing drug.” New Jersey courts have since expanded this law to include any substance that has produced a narcotic effect – and the law does not even require that the specific drug be identified. If you have used a substance that would change your normal physical coordination or mental abilities to the point that you can be considered a danger to yourself or others on the road, then you may be charged with driving under the influence of drugs, also known as DUID.

If you go to trial for a DUI/DWI charge, the State must prove beyond a reasonable doubt that you were operating a vehicle under the influence of some drug or mind altering substance. When it comes to alcohol, the standard breathalyzer test and field sobriety tests used to demonstrate that a person was driving drunk are well known. When it comes to DUID for drugs like cocaine, however, a case can be somewhat more complicated. The State may require expert testimony to establish that there were drugs in your system and that these drugs actually made you unable to safely operate your vehicle. For that reason, it is especially important to consult an experienced DWI/DUI lawyer, who will be able to identify if the State’s investigation into your charges was proper and who may be able to have your charges either dismissed or downgraded by discrediting this evidence.

How Does the State Prove Narcotic Use?

In a prosecution for driving while under the influence of drugs, the State will use observations and testimony to establish that a person was using drugs at the time he or she was arrested, as well as to show that the person was intoxicated. For instance, if a police officer suspects a driver of being under the influence of narcotics, the first thing he or she will probably do is request that the driver undergo a blood or urine test. This evidence would then be admitted at trial through admission of the person who performed the analysis or an independent reviewer. Barring exigent circumstances, New Jersey law does not require that a driver undergo a blood or urine test. The driver does have the right to refuse to participate in testing. To obtain a blood or urine sample, the police MUST either (1) gain the drivers voluntary informed consent (meaning the driver has the right to refuse) or (2) the police obtain a search warrant to force a driver to give blood or urine for testing (if a warrant is issued, you must comply).

The State will also need to present evidence that the driver showed signs of intoxication. This is because a defendant can argue that any traces of narcotics in his blood or urine were left over from some other time and did not impair his or her ability to drive. Such evidence can be observed from speaking to a driver and by asking a driver to perform a field sobriety test – things like walking in a straight line, standing on one foot, or using your eyes to follow a light. Again, the State may need to present this evidence through an expert, such as a police officer with sufficient training to identify narcotic influence. In the recent case of State v. Beyer, the New Jersey Appellate Division affirmed the DUID laws and procedures, when it held that a driver could be convicted of driving under the influence of cocaine based on the fact that the driver was found asleep at the wheel of a car with its engine running, the driver admitted to using cocaine earlier, urinalysis showed the presence of cocaine, and the driver showed signs of falling, swaying, and staggering during the field sobriety test.

Because defending against charges of driving under the influence of drugs can be very complicated, it is important to get an experienced DUI/DWI attorney in any situation where you or someone you know is charged. An experienced DWI/DUI attorney will be able to help present the best defense possible or have the charges against you dropped completely.

New Jersey DUID Attorney Edward M. Janzekovich Can help if You Are Charged with Driving Under the Influence of Drugs, Including Molly, Ecstasy, Marijuana, or Other Illegal Substances

A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the State of New Jersey.

New Jersey DWI Lawyer Discusses When You Can Get a New Trial in Your Drunk Driving Case

Man Being Pulled Over by the Police

The criminal justice system in New Jersey and in the United States is used to decide when defendants are guilty or innocent of crimes that they are charged with, but guilt and innocence is not the only thing the court is concerned with. Society wins not only when the guilty are convicted but when criminal trials are fair. For that reason, if you or someone you know is found guilty of driving under the influence of alcohol of drugs, you may be entitled to a new trial if your attorney can show that the case brought against you was improper or unfair.

In Brady v. Maryland, the United States Supreme Court held that when a prosecutor withholds exculpatory evidence, which is evidence that could possibly be used to show that a defendant was not guilty or could be used to lessen a defendant’s sentence, the court may be required to take corrective measures. The New Jersey Supreme and Appellate Courts have applied Brady for the benefit of New Jersey defendants charged with DWI / DUI in numerous cases, most recently citing the rule in State v. Stein.

In Stein, the New Jersey Supreme Court actually noted that New Jersey law is even more expansive because New Jersey Court Rule 7:7-7 requires more discovery be provided to the defendant than in Brady. Under the rule, state prosecutors must release all evidence or information that is relevant to a legitimate defense. In order to establish a Brady violation in drunk driving cases, the defendant must prove the following three facts:

  • The prosecution failed to provide evidence to the defense in violation of Rule 7:7-7;
  • The evidence would have been something that is good for or benefits the defendant;
  • The evidence is material, meaning the defendant can show that there is a good chance the defendant could have used the evidence to change the result of the trial or of a plea agreement.

Exculpatory evidence may include more than just things that directly relate to the case, it can also include evidence that has to do with the credibility of a witness, meaning evidence that makes a witness more or less believable. A failure by the State to provide exculpatory evidence to the defense can be considered a denial of due process and entitle a defendant to a new trial.

If a defendant requests a new trial based on a Brady violation, the court does not look at just one piece of evidence to determine if that would have affected the trial. Instead, the court will look at all of the evidence that was suppressed, and the court will decide if the decision to plead guilty or the results of the trial would have been different if the defendant had the chance to present the evidence.

When it comes to drunk driving charges, a Brady violation usually has to do with evidence that may affect a defendant’s blood alcohol level or may be used to exclude the blood alcohol test results. For example, if the state fails to provide evidence that the breathalyzer machine used on the defendant was improperly maintained or was likely to produce inaccurate readings, this can result in a new trial. Similarly, suppressed video evidence may form the basis of a Brady violation.

Importantly, in New Jersey, you lose this right if you forget to ask for the evidence or fail to object when you do not receive that evidence. For instance, in Stein, the Court held that the defendant may have been entitled to the names of certain witnesses that were used against him, but he forgot to object and lost his chance to request a new trial based on the government’s failure. For that reason, it is important to get an experienced drunk driving attorney in any situation where you or someone you know is charged with DUI / DWI. An experienced DUI attorney will know what evidence to ask for from the state and will be best suited to present the best defense possible or have the charges against you dropped completely.

New Jersey Drunk Driving Attorney Edward M. Janzekovich Can help if You Deserve a New Trial in a DUI or DWI Case

A DUI or DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI / DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the State of New Jersey.

New Study Finds Tests Used by States to Determine if a Driver is Impaired by Marijuana Use Have No Scientific Basis

Man driving and smoking joint

Around the country, many states are passing laws legalizing, or decriminalizing the use of marijuana for medicinal and non-medicinal purposes. In New Jersey, marijuana remains a Schedule I controlled substance, but the New Jersey Compassionate Use Medical Marijuana Act made the cultivation, sale, possession, and use of marijuana legal for specific purposes, under strict medical guidelines. Under New Jersey law, you can be charged with DUI / DWI for being under the influence of a marijuana while operating a motor vehicle. However, the statute does not specify a specific amount of the drug that must be present in someone’s body at the time they were driving, with the well-known exception of alcohol – a person with a blood alcohol concentration (BAC) of 0.08 percent is presumed to be legally impaired, which is known as a “per se standard.”

In recent months, some states have designated a per se standard for THC, the active component of marijuana. For example, Pennsylvania now has a per se standard of one nanogram of THC per milliliter of blood. To date, six states employ tests to determine if someone is driving impaired by marijuana use. Those include Colorado, Montana, Nevada, Ohio, Pennsylvania and Washington. New Jersey law currently does not yet provide for a specific threshold for THC. Importantly, however, a recent study by the nation’s largest automobile club found that the tests employed have no true scientific basis.

The study commissioned by American Automobile Association (AAA)’s safety foundation said it is not possible to set a blood-test threshold for THC, which is the chemical in marijuana that makes people high, that can reliably determine impairment. Yet the laws in five of the six states automatically presume a driver guilty if that person tests higher than the limit and not guilty if it’s lower. As a result, the foundation said that drivers who are unsafe may be going free while others may be wrongly convicted. As a result of the study, the foundation is advocating that the per se standard laws be replaced by ones that rely on trained police officers to determine if a driver is impaired, backed up by a test for the presence of THC, rather than a specific threshold. Officers are trained to screen for indications of impairment due to drug use, such as pupil dilation, tongue color, slurred speech, and body behavior.

Determining whether someone is impaired by marijuana, as opposed to having simply used the drug at some point, is more complex than the reliable blood alcohol tests that have been developed for alcohol impairment. There is currently no science indicating that drivers become impaired when a specific amount of THC is noted in their blood. Rather, much depends upon the individual. Drivers with relatively high levels of THC in their systems may not be impaired, especially if they are regular users, while others with relatively low levels may be unsafe behind the wheel.

In New Jersey, the ambiguous nature of the law means that it is important to obtain an experienced DUI attorney in any situation where you or someone you know is charged with driving under the influence of marijuana. There is understandably a strong desire by both lawmakers and the public to create legal limits for marijuana impairment in the same manner [as] we do alcohol,” but the reality is that the laws regarding marijuana remain flawed and an experienced DUI attorney will be best suited to present the best defense possible or have the charges against you dropped completely.

New Jersey DUI Attorney Edward M. Janzekovich Can Help Drivers Charged with Driving Under the Influence of Marijuana

A DUI or DWI charge for operating a motor vehicle under the influence of marijuana is a new and complex of area of the law. Such a charge can have severe penalties and it is important to understand those penalties and how to best defend against them. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, knowing what your rights are can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today.

We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

Defendants Facing DWI Charges Are Not Entitled to Trial by Jury

Woman being pulled over by police

If you are charged with a crime, do you always have the right to a trial by jury? When it comes to drunk driving cases in New Jersey, the answer is “no.” On May 12, 2016, the New Jersey Supreme Court found in State v. Denelsbeck that defendants facing their third or subsequent drunk driving conviction are not entitled to a jury trial, and are subject to a mandatory six months in jail.

The reason is because New Jersey does not consider DWI a “crime.” Instead, the law treats it as a traffic violation, meaning that the punishments are not serious enough. Courts in New Jersey have long found that defendants are not entitled to a trial by jury on “petty” offenses but are only entitled to them when consequences are more severe.

How “Serious” are the Consequences?

In reaching its decision, the New Jersey Supreme Court found that the punishments for repeat DWI offenders are not “sufficiently serious” to trigger the constitutional right to a jury trial. However, the Court admitted that the law does require a lot of fines, fees, and penalties, including mandatory jail time, for repeat DUI offenders, and the amount of punishment has increased over time.

Specifically, under the current laws, if you have already been convicted of two prior DWI’s and you are charged with drunk driving again, you face up to 180 days of jail time, thousands of dollars in fines, forced enrollment in an alcohol inpatient rehabilitation program, and a ten-year loss of your driver’s license.

If convicted, you would also be required to install an ignition interlock device on your vehicle during the period of suspension and AFTER you get your license back. After your driving privileges are returned, the device must remain on the vehicle for six months to one year on a first offense or one to three years on a subsequent offence. An ignition interlock device works with your vehicle’s ignition system, requiring you to provide a breath sample before your car will start. If alcohol is detected, your vehicle will not start until a passing sample has been provided. If you are convicted for drunk driving even once, you could be required to install an ignition interlock on your vehicle at your own expense – and costs for an ignition interlock device are estimated at $90-150 to install and about $70-90 per month for monitoring and calibration./p>

However, the Supreme Court Warns Punishment Cannot Be Any Harsher

In deciding Denelsbeck, the Supreme Court warned that if any additional DUI penalties are added by the state legislature, the Supreme Court would change its mind and decide that defendants charged with driving under the influence of drugs or alcohol would have the right to have their cases heard by a jury of their peers. The Court said our New Jersey lawmakers have “reached the outer limit in subjecting third and subsequent DWI offenders to confinement without a jury trial.” They noted that facing a mandatory term of six months’ confinement for a third or subsequent drunk driving conviction is the constitutional maximum – meaning 180 days of jail time is the maximum punishment allowed before a defendant has the legal right to a jury trial. The Court specifically stated that the offense is currently teetering between being a petty offense and a serious crime because of this punishment.

Jury Trials, and the Alternative – Bench Trials

The Denelsbeck case was decided 5-1. Justice Barry Albin disagreed with the rest of the Supreme Court and wrote in his dissent that New Jersey is “far out of the mainstream” as to its position on Trial by Jury in DUI cases. He pointed out that 40 states give DWI defendants a jury trial on their first offense. The New Jersey State Bar Association and the New Jersey chapter of the American Civil Liberties Union helped to argue that New Jersey should join the other 40 states in trying DWI cases in front of juries, while County prosecutors and the state Attorney General’s Office argued that universal jury trials for DUI offenders would overburden the court system.

In the meantime, because jury trials are not a right, if you are charged with drunk driving, you may be required to present your case in what is called a bench trial. In a bench trial, your entire case is heard and decided by a judge without the help of a jury. Having an attorney to represent you in a bench trial is especially important, because the judge will get to decide both issues of law and evidence as well as make the ultimate decision in the case regarding whether you are guilty or innocent.

New Jersey DWI/ DUI Lawyer Edward M. Janzekovich Will Fight for Your Rights if You Are Charged

Defending against a DUI charge is complicated. If you are charged with drunk driving or driving under the influence in New Jersey, knowing what your rights are can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients in Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.

New Jersey DUI – DWI Lawyer – Driving Under the Influence of Marijuana

It is illegal to drive while high on marijuana (weed, pot, etc.) in New Jersey.  Although New Jersey does not have a specific law that addresses driving under the influence of marijuana, the same law that prohibits drunk driving (N.J.S.A. 39:4-50, titled “Driving While Intoxicated”) applies to drugged driving offenses as well.  This law prohibits driving under the influence of any intoxicating substance, including narcotics, hallucinogens or even some over the counter medications.

How Do the Authorities Prove a Person is Under the Influence of Marijuana?

When a person is pulled over on suspicion of drunk driving, they are given a breathalyzer test to determine their blood alcohol content.  So how does a police officer know whether a driver is under the influence of marijuana?  Usually, a driver will be asked to take a blood or urine test.  However, a positive drug test only indicates that there is marijuana in a person’s system at the time of the traffic stop—and marijuana can stay in a person’s system weeks after using it.  Therefore, if you are arrested for drugged driving, additional evidence is generally relied upon to prove the DUI in court.

If you go to trial for your DUI charge, the State must prove beyond a reasonable doubt that you were operating a vehicle under the influence of marijuana.  This requires some expert testimony to establish that the drugs found in your system were not just residual, but actually rendered you impaired and unable to safely operate a motor vehicle.

In drugged driving cases, the general rule is that the accused must have been tested at the time of their arrest by a specially trained police officer referred to as a Drug Recognition Expert (“DRE”).  However, for marijuana cases, the prosecutor can establish intoxication through testimony of any police officer who has been trained in field sobriety and who has experience in identifying marijuana intoxication.  In such cases, an officer will testify that there was objective evidence that a driver’s physical or mental capabilities were impaired by the drug.  This testimony can be the State’s Achilles heel.  An experienced DWI lawyer may be able to have your charges either dismissed or downgraded by discrediting this testimony.

No Implied Consent for Blood or Urine Testing

In New Jersey, as a condition of receiving your driver’s license, you have agreed to take a breath test to determine the content of alcohol in your system if you are pulled over on suspicion of drunk driving.  This is known as “implied consent.”  If you refuse to take the test, you are subject to punishment including a loss of driving privileges.  But this law does not extend to drivers who are suspected of being under the influence of marijuana or other substances.  If you are pulled over and the police suspect that you are high on marijuana or some other substance, there are no penalties or sanctions if you refuse to submit to a blood or urine test.  Chemical testing for marijuana or any other substance is only performed on a voluntary basis or if a warrant has been issued by a judge.  First, the investigating officer would ask you for your consent to provide a urine or blood sample.  If you refuse, then the officer can attempt to obtain a warrant from a judge, based upon probable cause.  If a warrant is issued, then you have to comply.  It is amazing just how many people, knowing full well they have a substance in their system, agree to voluntarily submit to a blood or urine test.  Most people just don’t know they can say no.

Penalties for Driving Under the Influence of Marijuana

Penalty for a conviction will vary depending on whether you have ever been convicted of drugged driving in the past.

  • For a first conviction, drivers face a fine of between $300 and $500, up to 30 days in jail, and between seven months and one-year license suspension.
  • For a second conviction, drivers face a fine of between $500 and $1,000, 30 days community service, 2 to 90 days in jail, and a two-year license suspension.
  • For a third (or subsequent) conviction, drivers face fines up to $1,000, 180 days in jail, and a ten-year license suspension.

If you have been charged with drugged driving, you may also face additional penalties for related charges such as possession of a controlled dangerous substance.

What About Medical Marijuana?

Although New Jersey allows certain individuals to use medical marijuana, just like any other legally prescribed medication, it is still a crime to drive if one’s ability to safely drive a car is impaired by the drug.

Edward M. Janzekovich Defends People Charged with Marijuana DWI/DUI

If you were arrested for driving while impaired by marijuana, we can help.  Trusted New Jersey DWI lawyer Edward M. Janzekovich is available to answer your questions and discuss your best defense.  Call us today at 732-257-1137 or contact us online today.  We serve clients throughout New Jersey, including Ocean County, Monmouth County, Mercer County, Middlesex County, Union County and Somerset County.