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Drug DUI: DREs and Drug “Breathalizers”

The fluid legal status of Marijuana use in the United States requires innovation in the law.  Two (2) states (Colorado and Washington) have recently passed legislation legalizing the recreational use of marijuana.  As of today, Marijuana is legal for medical purposes in eighteen (18) states and in Washington, D.C. That number is continuing to grow.

This has created a significant legal question:  How can it be determined whether someone is under the influence of Marijuana while driving?  Marijuana has been said to be present and detectible in one’s blood for up to thirty (30) days.  So, if someone utilized Marijuana on Day 1, and then operates a motor vehicle on Day 15, they should test positive for marijuana.  That does not by any means establish that the individual was under the influence of Marijuana when he/she was operating a motor vehicle.  How will that determination be made beyond a reasonable doubt?

The question of how such a determination can be made remains unanswered.  Some states are utilizing Drug Recognition Evaluations (“DREs”).  The DRE program was originally developed by the LAPD in the 1970s for DUI enforcement.  A DRE is a 12 step evaluation procedure used to determine (1) whether an individual is under the influence of drugs and (2) what type of drug.   Currently, there are approximately 6,000 officers nationwide certified as DREs and 258 certified in New Jersey.  The DRE program is funded by the National Highway Safety Administration.  In New Jersey, the scientific reliability and admissibility of DRE opinions has yet to be determined.  In addition, individuals arrested for suspiscion of driving while under the influence of drugs (e.g., Marijuana, Cocaine, Heroin or PCP) are not required to consent to DRE testing.  What’s more they are not required to consent to the taking of a urine or blood sample, which is a requirement of a DRE in order for the opinion to be valid.   Additional case law and legislation is required and likely on the horizon.

Another potential testing method would be the implementation of “Drug Breathalizers“.  There is a new Swedish-designed device that is claimed to be able to detect twelve (12) different controlled substances, including methamphetamine, cocaine, heroin, morphine and marijuana. In a study published in the Journal of Breath Research, Olof Beck, of Sweden’s Karolinska Institutet, detected drugs on the breath of 47 patients at a drug addiction emergency clinic.  The study states the Breathalyzer test was able to correctly detect drug use in 87 percent of cases; the test was equally as accurate as blood and urine tests, according to the study.

It will be interesting to see how New Jersey and other states address this significant legal issue.

Mark W. Catanzaro and Daniel M. Rosenberg are defense attorneys who practice criminal and civil law in New Jersey, New York and Pennsylvania.   Mr. Catanzaro and Mr. Rosenberg provide legal assistance and defense to individuals charged with driving while intoxicated (DWI or “drunk driving”) and driving under the influence (DUI) of drugs or controlled dangerous substances.  For legal assistance or representation, Mr. Catanzaro and Mr. Rosenberg can be contacted at (609) 261-3400.

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