2053 Woodbridge Ave. Edison, NJ 08817

Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Wednesday, March 04, 2015

Driving after taking prescription medication and being charged with DWI. 39:4-50

Driving after taking prescription medication and being charged with DWI. 39:4-50

         The NJ DWI statute is not only about prohibiting driving after drinking. It also prohibits driving after taking prescription medication which may render someone under the influence. Even if a medical doctor prescribed the medication police can still charge someone with driving under the influence of those medications.
39:4-50. (a) Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood shall be subject to penalties…….

As used in this section, the phrase "narcotic, hallucinogenic or habit-producing drug" includes an inhalant or other substance containing a chemical capable of releasing any toxic vapors or fumes for the purpose of inducing a condition of intoxication, such as any glue, cement or any other substance containing one or more of the following chemical compounds: acetone and acetate, amyl nitrite or amyl nitrate or their isomers, benzene, butyl alcohol, butyl nitrite, butyl nitrate or their isomers, ethyl acetate, ethyl alcohol, ethyl nitrite or ethyl nitrate, ethylene dichloride, isobutyl alcohol or isopropyl alcohol, methyl alcohol, methyl ethyl ketone, nitrous oxide, n-propyl alcohol, pentachlorophenol, petroleum ether, propyl nitrite or propyl nitrate or their isomers, toluene, toluol or xylene or any other chemical substance capable of causing a condition of intoxication, inebriation, excitement, stupefaction or the dulling of the brain or nervous system as a result of the inhalation of the fumes or vapors of such chemical substance.

       Prosecutors can prosecute someone driving a car after taking legal medications. Often the police obtain a blood test or urine test. The lab report comes back position for medications. Therefore, it is important to hire an attorney who will file the appropriate motions to help defend you.

Pretrial Motions to be filed

1)    Suppress Evidence
2)   Miranda/Privilege
3)    Exclude Lab Tests
4)    Discovery
5)    Reciprocal Discovery
6)   Speedy Trial
7)    Notice of Objection to Lab Reports
8)   Jury Trial
9)   Punishment
10)     Vagueness



         At a time to be set   by the Court, Defendant will move for Orders pursuant to R. 3:10‑5, 3:13‑1, and 7:7-7, as follows and requests oral argument pursuant to R. 1:6‑2(d) to preserve all of defendant's rights and defenses:

1)    Suppress Evidence. Defendant will move to suppress, evidence obtained by the State during its investigation of case, pursuant to R. 3:5‑7 and 7:5-2, because evidence‑‑ie defendant's person, breath, blood, and/or other things‑‑was seized unlawfully, without a warrant  and contrary to U.S. Const. Amends. IV and XIV and N.J. Const. Art.1, para.7. Defendant believes the State will use this evidence in proceedings before this Court on the above captioned charges.

2)    Miranda/Privilege. Defendant will move to exclude statements by, and evidence obtained from, Defendant during the State's investigation of this case because the statements and evidence (a) create substantial danger of undue prejudice to Defendant contrary to Evid.R. 403 (previously Evid.R. 4), (b) are privileged under Evid.R. 503 (previously Evid.R. 25), and (c) were obtained contrary to U.S. Const. Amends. V, VI, IX, and XIV, NJ Constitution 1, paras.1, 10, and 2], and requirements stated in Miranda v. Arizona, 384 US. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny.

3)   Exclude Drug Tests. If police used a drug testing instrument in this case, Defendant will move to exclude evidence(‑ of drug test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of drug testing instruments as required by statute, and (b) without such properly prescribed methods and procedures, the State cannot lay the foun­dation needed for admission of drug test results into evidence at trial.

4)   Discovery.  7.1 Defendant requests that the State provide paper copy of any relevant discovery as required by Rule 3:13-3, Rule 7:7-7(b) . Defendant further requests that the Court enter a DISCOVERY ORDER, provided the prosecutor neither sends notice of specific objections in writing pursuant to R. 3:1‑4 nor moves timely for a protective order pursuant to R. 3:13‑3(d). . If the State fails to provide discovery as requested herein, Defendant may move either before or during trial pursuant to R. 3:13‑3(f), R. 3:17‑4, and Evid.R. 807 (previously Evid.R 64), as applicable, for an Order (a) permitting discovery or inspection of undisclosed materials, (b) granting a continuance, (c) prohibiting introduction in evidence of undisclosed material, (d) monetary sanctions, (e) dismissal of the charges, and (f)such other order as the Court deems appropriate.

5)    Reciprocal Discovery. 8.1. Defendant may call certain fact witnesses to testify, inter alia, that: they have known Defendant, b) they saw Defendant before or after police saw Defendant, c) Defendant was not under the influence of drugs, d)and e) there was no articulable suspicion that Defendant had violated the law. The witnesses will be named following/ after the state provides complete discovery.

6)   Defendant may call the following experts to testify- Expert  Dr. Richard Saperstein,  and/or Others to be provided if and when retained following receipt of the state's expert.

7)    Defendant may use demonstrative and documentary evidence, which the State may inspect and copy or photograph after paying reasonable expenses therefor: a) photographs c) video e) maps g) pharmacy records h) films d) diagrams f) medical/hospital h) weather records

8)    Speedy Trial. Defendant demands a speedy trial pursuant to U.S. Const. Amend. VI and N.J. Const. Art.1, para.10.

9)   Notice of Objection. If the State gives notice of intent to proffer a certificate executed by a laboratory employee pursuant to N.J.S. 2C:35‑19c, Defendant hereby objects to it on the grounds that Defendant intends to contest at trial the composition, quality, and quantity of substances submitted to the laboratory for analysis.

10)                 Jury Trial. Defendant will move for trial by jury. Blanton v. North Las Vegas, 109 S.Ct. 1289, l03 L.Ed.2d 550 (1989).

11)                 Punishment. Defendant will move to dismiss the criminal complaint because statutory punishments are cruel unusual in that they are disproportionate to a disorderly violation and contrary to US Constitutional.(. Amends. VIII and XIV N.J. Const. Art. 1, para. 1'. See Gregg v. Georgia, 428 U.S. 96 S.Ct. 2909. 49 L.Ed.2d 859 (1976); State v. Smith, 58 N.J (1971).

12)                 Vagueness. Defendant will move to dismiss the criminal complaint because the statute, at least as to the so-called "per se" violation, is vague and contrary to U.S.  Amends. V, VI, IX, and XIV, and N.J. Const. Art.1, paras.1, 5, See Kolender v. Lawson, 461 US. 352, 103 S.Ct. 18S 903 (1983