Timeframe of Resolution for a Drug Related DUI in New Jersey
Interviewer: How long do drug related DUI cases take? How long do these cases typically last?
James Abate: The first stage is going to be initial discovery, which is going to be production of the police report, the video of the stop, at that point there’s may be some expert review, there may be an evaluation of the evidence, and a motion to suppress will probably be filed at that point. That’s where all the action happens, it’s on the motion to suppress. You’re probably looking at three to five months for a case to play out before you have a decision from the judge, and then, if you don’t like the decision, you go to trial.
Really, the suppression is where everything happens. If you lose the suppression hearing, and you go to trial, there’s really nothing left for you to object to, and the case is over at that point.
A Drug Related DUI is Not Eligible for an Ignition Interlock Device
Interviewer: Could an ignition interlock device could be imposed on someone for a drug-related DUI?
James Abate: No. A drug-related DUI is not eligible for an ignition interlock device, because the ignition interlock device can only detect alcohol. They would have to have a urine interlock device for it to work with drugs, and you’d have to wait probably a long time, so it’s not something which comes into play. In fact, New Jersey has, in the legislature, been considering going to an interlock-based sentencing scheme, so that instead of having you be suspended you would simply be interlocked for that same period of time, and at that point the interlock would come into play. One of the first questions that came up was, what do you do with the drug cases? The court, the legislature, kind of punted on that, and they just said, you do nothing. They don’t get this option. I think what will happen in a lot of cases if police really want to put you under pressure, is they’ll say that you were driving while intoxicated on marijuana as well as alcohol, and since a growing amount of the population partakes in that recreationally, they’re going to hit a lot of cases where someone’s urine test is going to come back as positive for metabolites of marijuana, or THC.
Police and Prosecutors are Experts at Using the Laws to their Advantage
Then the police are going to give the prosecution a case where they can say, “Listen, I’ll give you the interlock and you can at least keep driving to work, but if we go to trial I’m going to be looking for a conviction on the marijuana, and then you’re going to lose your license completely. Police and prosecutors are pretty good at using the law to their advantage, and I have no doubt they’ll continue to.
You Do Not need to be Found in Possession of Marijuana to be Convicted of Using it
Interviewer: Have you ever seen situations where someone has been pulled over, and the police officer said, “I smell marijuana in your car,” and they end up finding maybe a small joint or a small amount of marijuana, and the individual says, “I haven’t been smoking marijuana.” But, they had smoked marijuana, maybe a week prior, and they still have it in their system. How is that case going to play out, what will it look like?
James Abate: There are a lot of cases like that. Here is something which I think we’re going off track with it, is that you don’t need to be found in possession of marijuana to be convicted of driving while intoxicated for marijuana use. They’re kind of separate issues; the possession and the DUI. The police, if they find marijuana, it could be scrapings off the floor of your car. You say, “That’s not even from me. I didn’t even know that was there. A friend of mine used my car and they must have smoked and they left residue.” Yeah, that’s something they can charge you with possession if they find a lab that will come back with a positive result.
There are New Tests Being Engineered in Colorado which will characterize the Amount of THC in Blood or Urine Similar to the Alco-Test
But, what we’re talking about is driving while impaired, and if the police feel that you are impaired from marijuana smoking, all they have to do is say, “I believe that he was impaired by marijuana, for this reason, this reason, and this reason, and based on my observation.” And if you’ve got metabolites in your system for marijuana, then they’re going to convict you. Those metabolites could be thirty-days old. You could have not smoked for a whole month and they’ll still convict you. There are new tests being engineered out in Colorado, where they’re going to start characterizing the amount of THC in your blood, or your urine, and it will be similar to the Alco test. They will, say, if you’ve got a THC of, whatever the level ends up being, you’re considered, per se, impaired.
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