Interviewer: Do you see DWIs attributed to illegal and/or prescription drugs in your practice?

Attorney: We see both. The vast majority of the DUI’s we see are alcohol-related but we also see them for both illegal and prescription medications, whether those prescription medications are prescribed to the defendant or to somebody else.

Some Drivers Mistakenly Assume They Can Drive While Taking Prescribed Medication

Another big misconception, actually, is that because your doctor prescribes that medication for you, you can drive after you’ve taken it.

Interviewer: What percentage of DWI’s nowadays are illegal drugs or prescription drug cases?

Most Drug-Related DWIs Are Attributed to Prescription Medication

Attorney: I would say in terms of our cases it’s probably 10% or 15% of them that are illegal or prescription drugs. The majority of them are prescription-related rather than illegal drugs.

Interviewer: Are people surprised by an arrest for a prescription medication attributed DWI?

Attorney: Yes. That’s a huge misconception. People are stunned to learn that they can be arrested for DWI for taking medication that is prescribed to them.

It’s not all medications. The statute actually says, “If you’re operating a motor vehicle while under the influence of intoxicating liquor, narcotics, hallucinogenic or habit-producing drug.” If your doctor prescribes you Vicodin, that’s a narcotic drug.

Prescription Drugs Such as Xanax and Oxycodone Are Commonly Attributed to Drug-Related DWIs

Interviewer: What are the most common prescription drugs you see people arrested for taking?

Attorney: Xanax is a big one and painkillers like Oxycodone. A lot of times there are people who are drug addicts and they’re on something that’s being used during a treatment program. This could be a drug that’s being used to wean them off of whatever they’re addicted to, such as heroin.

In terms of illegal drugs, it’s mostly marijuana. I’ve had cases attributed to cocaine or heroin but in my experience those are less frequently the subject of a DWI.

How Defensible Is a Drug-Related DWI Charge?

Interviewer: Are these drug cases harder to defend? Are they more complicated?

Attorney: A first offense is harder to defend in that there’s no lower tier for a drug offense. It’s just the 7 to 12 month suspension. There’s no getting the drug result thrown out and getting a shorter suspension, so it can be harder in that sense.

Another complication is that many drug-related DWI cases are cases in which the defendant has a combination of drugs and alcohol in their system. People don’t always understand the interaction between alcohol and their prescription drugs, and oftentimes the use of alcohol while taking certain prescription drugs can increase the intoxicating effect of the alcohol. So, those cases can be more difficult to defend than a simple alcohol-only or drugs-only DWI.

The State Can Prove a Drug-Related DWI Case with a Lab Report and Officer’s Observations

It’s sometimes more complicated. In a case of a marijuana arrest, the lab report shows the presence of marijuana metabolites and that is all that’s needed. The State doesn’t need to prove it used anything else but the presence of the drug coupled with the officer’s observations.

Disputing the Drug Recognition Expert Officer’s Testimony

In other drug types of cases then the police use what’s called a Drug Recognition Expert. This is a police officer who is specially trained. He or she goes to a specialty training course where they are trained to detect drug use. They’re basically trained to look at a person and decide what drugs they’re on, which is something even a medical doctor won’t do, so as defense attorneys we’re very skeptical about the use of these so-called experts.

There are ways around that. It’s never been subject to a hearing on its scientific reliability in a New Jersey court. But many municipal courts will still accept it if the defense attorney doesn’t challenge it.

Interviewer: Have you handled these kinds of cases?

Attorney: I actually attended a DRE training for defense attorneys. It was over the course of 2 days and we learned the entire protocol and all the ways to poke holes in the expert’s testimony. It was very worthwhile.