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Charged with a Marijuana DUI in New Jersey? Here’s What You Need to Know

January 17, 2023 | Posted In Criminal Law, Drunk Driving

Although New Jersey recently decriminalized recreational marijuana use, driving under the influence of marijuana still is – and always will be – against the law. While driving under the influence (DUI) is classified as a traffic offense rather than a crime in New Jersey, the consequences of a DUI conviction are severe, and getting arrested for a marijuana DUI can impact all aspects of your life.

If you are facing a marijuana DUI charge in New Jersey, here are five important facts you need to know:

1. Marijuana DUIs Carry Steep Penalties in New Jersey

In New Jersey, marijuana DUIs and alcohol-related DUIs are prosecuted under the same statute, and this means that they are subject to the same penalties. As a result, if this is your first time being charged with DUI, you are facing penalties including:

  • Fines and surcharges
  • Loss of driving privileges
  • Up to 30 days in jail
  • Other administrative penalties

If you are being prosecuted as a repeat offender, the penalties you face are even more significant. For example, a second-time DUI charge can carry a jail sentence of up to 90 days, and a third-time DUI charge can result in a 180-day jail term.

2. There is No BAC Test for Marijuana Intoxication

In alcohol DUI cases, the defendant’s blood alcohol concentration (BAC) is often a key piece of evidence in the prosecution’s case. While prosecutors cannot use your BAC to secure a conviction in a marijuana DUI case, they can prove your guilt in other ways. But, as we discuss below, many of the types of evidence used in marijuana DUI cases are unreliable, and defendants will often have several defenses available.

If the police suspect that you have been driving under the influence of marijuana, you will most likely be subjected to an evaluation by a Drug Evaluation Expert (DRE). This is a police officer who has special training in identifying drug impairment. The DRE will perform an assessment, and if he or she determines that you have been driving while high, prosecutors can use this assessment in court, although your lawyer can argue that the DRE’s assessment is inaccurate or unreliable in your defense.

The DRE may also ask you to provide a urine or blood sample. While breath tests cannot tell the police if a suspect is under the influence of marijuana, urine and blood tests can.

But urine and blood tests also have their own limitations. As a result, it will be possible to defend against a “failed” urine or blood test in many cases as well. For example, due to the slow metabolic rate of THC, traces of THC can remain in a person’s urine for weeks. Clearly, if the last time you used marijuana was several weeks ago, you were no longer under the influence when you got pulled over. Similarly, from improper blood draw techniques to improper storage and faulty analysis, there are a variety of issues that can prevent a blood sample from serving as reliable evidence in court.

3. The Prosecution Won’t Go Easy On You  

Even though recreational marijuana use is now legal in New Jersey, you cannot expect the prosecution to go easy on you. Driving under the influence of marijuana puts other people in danger, making prosecuting marijuana DUI cases a top law enforcement priority. 

But, while you should not expect prosecutors to go easy on you, you also should not assume that they will be able to prove your guilt in court. There are numerous potential defenses to marijuana DUI charges, and if you assume that you will be found guilty, you could end up facing the consequences of a conviction unnecessarily.

4. Marijuana DUIs are Not Eligible for Expungement

If you are convicted of driving under the influence, your marijuana DUI charge will not be eligible for expungement. This is because a marijuana DUI is a traffic offense and not a criminal charge.

5. There are Several Potential Defenses to a New Jersey Marijuana DUI

There are several potential defenses to marijuana DUI charges under New Jersey law, from lack of evidence to violations of your constitutional rights. To find out what defenses you can use to fight your marijuana DUI charge, you should speak with a lawyer as soon as possible.  

Some examples of defenses a lawyer may be able to use to fight your New Jersey marijuana DUI charge include:

Unlawful Traffic Stop or Arrest – If the police stopped you without reasonable suspicion, then all of the evidence secured during your traffic stop may be ruled inadmissible in court under the Fourth Amendment. Likewise, if the police arrested you without probable cause, this could render the prosecution’s evidence against you inadmissible as well.

  • Inaccurate DRE Assessment – While DREs are supposed to be experts in assessing marijuana impairment, some are better at their jobs than others. Additionally, all DREs make mistakes, and there is no definitive way to determine if someone is under the influence of marijuana simply by performing a qualitative assessment on the side of the road or at the police station.
  • Unreliable Urine or Blood Test Results – If your urine or blood test results are unreliable for any reason, then they cannot prove your guilt beyond a reasonable doubt. An experienced defense lawyer will be able to examine all possible grounds to challenge the admissibility of your urine or blood test in court.
  • Inadequate Evidence of Guilt – Given the limitations on DRE assessments and urine and blood tests, prosecutors will often need to present multiple forms of evidence in marijuana DUI cases. If prosecutors do not have adequate proof of guilt, then you are entitled to walk free.

6. Understanding the Laws that Govern (and the Problems with) Blood and Urine Samples in New Jersey

Under New Jersey law, the police can obtain a blood or urine sample either (i) with a warrant or (ii) with a suspect’s consent. While New Jersey’s “implied consent” law applies when the police have reason to suspect that a person is driving under the influence of alcohol, this law does not currently apply in cases involving suspected marijuana DUI. A bill that would change this is currently pending before the New Jersey Legislature (Bill S2616).   

This means that the police cannot force you to provide a blood or urine sample without a warrant. The Fourth Amendment’s protections against unreasonable searches and seizures apply, and if the police violate these protections, your defense lawyer may be able to use this to have your blood or urine test results kept out of your marijuana DUI case. However, if you consent to providing a blood or urine sample—even if you don’t realize that you have the right to refuse—then keeping your test results out of your marijuana DUI case could prove far more challenging.

As we discussed above, if your blood or urine test results are unreliable for any reason, then prosecutors cannot use them against you (though your lawyer will still need to fight to keep your test results out of court). There are lots of reasons why your test results might be unreliable. For example, common issues with blood and urine test results in marijuana DUI cases include:

  • Lack of officer training in proper urine sampling procedures
  • Failure to follow the specific blood sampling procedures required for forensic use
  • Failure to deliver adequate instructions for providing a blood or urine sample
  • Failure to properly sterilize or seal the blood or urine sample container
  • Improper storage of the blood or urine sample (i.e., failure to keep the sample at an appropriate temperature at all times)
  • Possible tampering and contamination, as evidenced by damage to the container’s seal
  • Faulty analysis of the blood or urine sample

7. Understanding Marijuana’s Effects on Your Ability to Drive

Since there is no BAC test for marijuana intoxication, prosecutors must be able to prove that your use of marijuana impaired your ability to drive safely. Driving under the influence of marijuana can be dangerous, and it is against the law for a reason.

But, it is up to the prosecution to prove that your use of marijuana impaired your ability to drive—and this is often easier said than done. This is especially true when you have a defense lawyer on your side who can challenge the prosecution’s evidence and assumptions and who can expose the possibility of alternate explanations for your driving behavior. As a result, when facing a marijuana DUI charge, it is important to hire an experienced attorney who understands marijuana’s true effects and who can spot the flaws in the prosecution’s case that can be used to fight your marijuana DUI charge in court. 

Speak with a New Jersey Marijuana DUI Lawyer at Helmer, Conley & Kasselman, P.A.

Are you facing a marijuana DUI charge in New Jersey? If so, we can help you fight your charge and mitigate the consequences of your arrest. To speak with an experienced New Jersey marijuana DUI lawyer in confidence, call 877-435-6371 or tell us how we can reach you online now.

Over 20 attorneys at HCK have extensive marijuana DUI defense experience as they were former assistant prosecutors and/or police officers for a combined total of over 600 years of law enforcement experience. You can find out more about them on our website, and you can call Managing Partner Ron Helmer on his cell phone at 609 685-0665.

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