Drug DWI is not a .08 case with a different substance. There is no single numerical threshold that automatically establishes drug impairment under N.J.S.A. 39:4-50. The State instead relies on evidence of impairment and on proof connecting that impairment to a narcotic, hallucinogenic, or habit-producing drug covered by the statute.
What the State Is Trying to Prove
The State must prove that the defendant operated a motor vehicle while under the influence of a qualifying drug. Evidence may include driving behavior, physical observations, admissions, drugs or paraphernalia, medical information, toxicology, and a Drug Recognition Expert evaluation.
State v. Bealor: Drug Impairment Requires Competent Corroboration
In State v. Bealor, 187 N.J. 574 (2006), the New Jersey Supreme Court addressed the proof needed in a marijuana-impaired-driving case. The Court recognized that lay observations can be relevant, but drug intoxication requires competent corroborating evidence tying the observed impairment to drug use.
What Is a Drug Recognition Expert?
A Drug Recognition Expert, or DRE, is a specially trained police officer who performs a standardized multi-step evaluation designed to assess whether a person appears impaired and whether the findings are consistent with one or more recognized drug categories. The protocol includes interviews, observations, eye examinations, divided-attention tests, vital signs, pupil measurements, muscle-tone assessment, and other steps.
Olenowski Changed the Expert-Evidence Framework
In State v. Olenowski, 253 N.J. 133 (2023), the Supreme Court adopted for criminal and quasi-criminal cases a reliability test patterned after Daubert for expert testimony under N.J.R.E. 702. Later that year, in State v. Olenowski, 255 N.J. 529 (2023), the Court held that DRE testimony can satisfy that reliability standard, but imposed important limits.
The DRE may opine that the evaluation is consistent with the driver’s ingestion or use of one or more identified drug categories. The DRE may not simply testify that the drugs actually caused the driver’s impairment or quantify the extent of impairment from the drugs.
Toxicology Is Important Under Olenowski
The Supreme Court also required an important safeguard: if feasible, the State must make a reasonable attempt to obtain a toxicology report based on a blood or urine sample. If the State fails to make that reasonable attempt without a persuasive justification, the DRE opinion testimony must be excluded.
That does not mean toxicology automatically proves impairment. Toxicology may confirm or fail to confirm the presence of a substance, but interpretation can depend on the drug, metabolite, specimen, concentration, timing, pharmacology, and limitations of the testing method.
Blood and Urine Collection Raise Separate Issues
New Jersey’s implied-consent statute, N.J.S.A. 39:4-50.2, is directed to breath samples. Blood and urine evidence can involve consent, warrants, exigent circumstances, medical draws, chain of custody, laboratory methodology, and constitutional search-and-seizure issues.
For blood draws, Missouri v. McNeely and State v. Adkins reject a rule that alcohol dissipation alone automatically creates exigent circumstances dispensing with a warrant.
The Defense Review
A drug DWI defense should identify exactly what the State is relying on. Was there a DRE? Was the full protocol performed? Was toxicology obtained? Does the toxicology actually corroborate the DRE category? What did the body camera show? Were there medical, physical, fatigue, or other explanations for the observations? Were the samples lawfully obtained and reliably tested?
Drug DWI cases can look straightforward in a police narrative and become much more complicated once the DRE report, toxicology, video, and expert limitations are examined together.