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Common Misconceptions about Drug-Related DUI Charges in New Jersey


Interviewer: What are some of the most common misconceptions that people have about drug-related DUIs?

James Abate: The first misconception is that the DRE is a valid test and that it can’t be challenged. It can, and being a member of the Association of Criminal Defense Lawyers of New Jersey, we have a standard brief in which we challenge the DRE test as unreliable, even if they have a DRE review, not every department does, we will challenge that test as unreliable, and there’s no court opinion in New Jersey, at least, that the DRE test is per se reliable. It has to be determined by the judge, and there will come a point where that challenge works its way up to the appellate court from the appropriate case.

People Have the Right to Refuse to Provide a Urine Sample when Facing DUI Charges in New Jersey

Another misconception is that the police have the right to have you get a urine sample. They don’t. You can refuse to provide a urine sample. New Jersey’s implied consent law applies only to the Alco test, to the chemical breath test; some people call it the breathalyzer. It does not apply to giving a blood or urine sample. You can refuse to do that. The police can then go out and get a warrant and take your blood, but you’re not going to be charged with the refusal to provide urine.

Taking a Legal Prescription Medication does not Provide Immunity from DUI Charges in New Jersey

Another misconception is that if you’re taking a legal medication, that everything’s okay. No, I had a prescription for that. I was permitted, I was told by a doctor to take that medication and I shouldn’t be charged with anything. Well, the issue that the police are dealing with there is not whether you’re in possession of illegal drugs or not. That’s really not the issue. The issue is whether you should be driving, and if that medication has a warning on it that says, “Do not take with alcohol,” and you blow even a low reading of alcohol, you can be charged with driving while impaired.

Common Client Mistakes After Being Arrested for a Drug Related DUI

Interviewer: What would you say are some of the mistakes that people make upon becoming arrested with a drug DUI?

James Abate: Making admissions, voluntarily giving up their urine, being bullied into that by the police, but I wouldn’t even call that a mistake. I think there’s nothing wrong with cooperating with the police. That’s very confusing because they will tell you, you don’t have a right to an attorney, you don’t have a right to refuse the Alco test, and then you’re trying to figure out, well, I know there’s one I can’t refuse or I’ll be charged with something, but they are not sure which it is. It’s difficult for people. I guess the biggest mistake is drinking when you’re taking a medication you should not be taking with alcohol.

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