Marijuana DUI Charges Attorneys in New Jersey

In New Jersey, “narcotic, hallucinogenic or habit-producing drug” includes all forms of marijuana, whether, it’s smoked, eaten, or absorbed (liquid).

Marijuana is a leafy plant that comes from the Sativa family of plants. The substance of the plant that causes impairment is called Δ-9 tetrahydrocannabinol, known a THC or Delta 9 THC. Delta-9 THC reaches much faster than alcohol, with impairment setting in after it reaches its peak concentration. Once marijuana is ingested it will quickly move through the body and eliminate and metabolize. The police, through their forensic laboratories, are looking for proof of consumption of THC. This can be done through both blood and urine testing. However, they are not equal, or even ideal substances for DUI testing.

One problem with marijuana testing is that THC-9 never is found in urine. Rather, THC-COOH, the metabolized product will appear in the sample rather than active and impairing THC Delta 9. Further, the forensic chemists who analyze the urine cannot determine how much THC is in the system or when the person ingested it. This means the lab could be testing urine with THC levels consumed weeks earlier and thus not impairing. With blood testing, the State forensic laboratory can detect THC Δ-9, in the sample, but do not quantify it. This means there is no reported result of how much is in the system, like a breathalyzer does with alcohol, only that it was recently in the system. Again, the State may prosecute someone not under the influence merely because the substance was in the bloodstream. Further, with the legalization of marijuana, it is no longer illegal to have either substance in your bloodstream or urine. Rather, they must still prove impairment.

Requirements for Collection of a Blood or Urine Sample

The Fourth Amendment to the United States Constitution states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This puts a high burden on the police because they first need probable cause, based on a reasonable and explainable suspicion of wrong-doing, to even ask for a sample. Second, the police need either your consent or a warrant from a judge to get the sample.

Warrant or Consent Needed

To obtain a warrant for your blood draw, the officer must go before a neutral and detached magistrate (judge) and explain, under oath, why he needs this sample and what evidence he has to justify collecting it. Most of the time this will be based on the driving conduct, odors and admissions of recent consumption, and roadside field sobriety tests. The warrant can be obtained through a telephone call and it must be recorded. The Officer will probably not have the written document to show to you or the nurse but will fill it out and send it to the judge later for signature. The officer must provide a signed affidavit memorializing the conversation and his or her need for the blood. Once the warrant is obtained, you have no legal right to object or refuse, however, you cannot be charged with refusal for not giving a blood sample. This is another area your lawyer should be investigating to fight your marijuana a DWI.

The other way to obtain blood or urine is with your consent. If you agree to give blood or urine, no warrant is needed. However, the officer must ask you for consent and tell you you can withhold consent up until collection. You cannot be charged with refusal to submit to urine or blood testing for withholding your consent. If the police took your blood without a warrant or your consent, then the prosecutor cannot use the lab results against you.

Collection of a Urine Sample for Testing

Most urine collection is done by police officers, most of which have little experience or training in proper urine collection. The sample should be collected in a sterile collection cup used for the forensic analysis of urine. This is usually a 90 mL specimen container. Good collection practices would require the Officer to instruct the subject on how to provide a sample. One problem officers face is how to provide the privacy needed to deliver a sample and protect the sample from tampering.

Once provided, the sample is usually taken by the officer and sealed. In New Jersey, most officers do not measure the temperature of the sample or the quantity provided. The officer then seals the container with a lid, and places a secure tape on the top, which will later be broken by the forensic chemist. If the tape is torn when the sample is received by the chemist, then there is the possibility of tampering and contamination, and the sample must be thrown out. The officer places a label on the container with the subject’s name and other information. The sample is then sealed in a plastic bag and put in a forensic refrigerator until transported to the lab for analysis.

Collection of Blood for Testing

Another, more useful way of testing for THC is through a blood draw. Blood draws and analysis give a trained defense attorney many opportunities to attack the results. In New Jersey, blood must be collected in a medically acceptable manner. This means it must be drawn by someone with training, such a Phlebotomist, Nurse, or Doctor; it cannot be done by a police officer. This also requires that the blood be drawn in a clean environment such as a hospital, rather than a police department or on the roadside. Acceptable blood draws require the person who draws the blood to follow proper blood draw procedures for forensic use. Finally, there should be little to no pain for the test subject. This includes using a non-alcohol swab and using proper inversion methods after the draw. The officer will provide the drawer with the blood kit which contains everything needed for the draw. After the blood is drawn, it is stored in a refrigerator at the police department until it is transported to the laboratory. Once at the laboratory, it must be stored in a refrigerator where the temperature is monitored. The collection and storage of blood is one of the most overlooked areas by untrained or inexperienced lawyers.

The Analysis of the Sample

Marijuana is blood is tested using two methods. First, it will undergo a screening process where the sample is tested to see if it is positive for marijuana by a method known as immunoassay spectrum. The chemist will take the urine by looking for a chemical reaction in a color change. This testing will only tell the analyst if Marijuana can be identified in the sample and is very prone to false positives. If positive for marijuana, the chemist will use a confirmatory method known as Gas Chromatography/Mass Spectrometry. This is a forensic method for measuring the mass-to-charge ratio (m/z) of one or more molecules present in a sample. These measurements can often calculate the exact molecular weight of the sample components. The molecular weight is very important because every substance has its own weight. Gas Chromatography/Mass Spectrometry is the best analytical method out there, but it is not perfect. It is subject to human error, cross-contamination, random error, sampling error, etc. The best defense is that the NJ Forensic Labs provide no information about the amount of marijuana in the body. These are all ripe areas for attack with an experienced marijuana DUI defense lawyer. However, the only way to know is to look beyond the results and focus on the analytical data.

Hire the Right Lawyer

Many New Jersey lawyers claim to specialize in Marijuana DUI Defense but have little or no training to back it up. These lawyers rarely, if ever, requested the Mass Spectrometry data, and often overlook other defenses. You need a lawyer who will look at the circumstances of the arrest, the reason for the sample requested, warrant or consent information, collection standards and conditions, transportation and storage of the sample, and finally analysis and problems arising therefrom.

Steven W. Hernandez is an EXPERT Marijuana DUI Lawyer. He is a Certified Municipal Court Trail attorney and one of two Board Certified DUI Defense Attorneys in New Jersey. He is an instructor in Standardized Field Sobriety Testing and has undergone training in the Drug Impairment and Recognition and Identification program. Most importantly he has been trained in the Science of DUI Drugs. While he cannot guarantee a result, Mr. Hernandez has the necessary training and experience to fight your case. For a free telephone consult, please call Steven Hernandez at 732-286-2700.