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In New Jersey, being under the influence is defined as “a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs. State v. Tamburro, 68 N.J. 414, 421 (1975).
Anyone who is suspected of driving under the influence of drugs will usually be subjected to an evaluation by a Drug Recognition Expert (“DRE”) to assess the driver’s physical coordination and ability to safely operate a motor vehicle. A DRE is usually a police officer with some additional training in the detection and identification of drug impairment. A DRE will also request a urine sample, but a urine test is not final proof of driving under the influence of marijuana.
Testimony from a DRE is not required to prove in court that a person was driving while under the influence of marijuana. The prosecution can prove that a defendant was operating a motor vehicle while under the influence of marijuana by way of expert testimony that can be elicited either from a DRE or from a police officer who has the knowledge, skill, and experience in discerning the effects of marijuana on human beings; and the other is to proceed without any expert testimony and submit all of the available admissible evidence to the judge who then can then assess the defendant’s conduct, results of any scientific tests, as well as direct and circumstantial evidence. State v. Bealor, 187 N.J. 574 (2006). In other words, a DRE is not necessary to evaluate a driver suspected to be driving under the influence of marijuana and, more significantly, a DRE is not needed for trial purposes because police officers are permitted to provide testimony regarding whether or not a defendant was under the influence of marijuana.
The issue at a trial for driving under the influence of marijuana is whether the proofs are sufficient to establish beyond a reasonable doubt that, at the time of arrest, the defendant suffered from a substantial deterioration or diminution of the mental faculties or physical capabilities or was in a drug-induced state that so affected the defendant’s judgment or control as to make it improper to drive or whether the defendant was under the effect of a drug that altered his normal physical coordination and mental faculties as to render the defendant a danger to himself as well as to other persons on the highways.
Even with the legalization of medical marijuana in New Jersey, anyone who is under the influence of marijuana cannot operate a motor vehicle. The New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”), N.J.S.A. 24:6I-1 authorizes the possession and use of marijuana to treat or alleviate pain associated with specific debilitating medical conditions. However, CUMMA specifically prohibits a person to “operate, navigate, or be in actual control of any vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.” N.J.S.A. 24:6I-8(a). In other words, the use of marijuana for medicinal purposes is not a defense against a charge for driving under the influence of marijuana.
Statutes that prohibit operating a motor vehicle after smoking marijuana are even present in recreational states. Some states have created a proscribed legal limit of THC that gives rise to an inference that the defendant was under the influence of marijuana, thus subjecting the driver to the penalties associated with driving under the influence. Currently, New Jersey does not have any similar laws establishing a legal THC limit or implied consent of a blood draw.