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Former State Prosecutor and Criminal Trial Attorney

Former State Prosecutor

Former Atlantic County Prosecutor

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Experienced for over 30 years

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New Jersey Drug DWI Attorney

Driving Under the Influence of Drugs

In New Jersey, you may be charged with DWI if a prosecutor can prove that you were operating a motor vehicle while under the influence of intoxicating liquor, a narcotic or a hallucinogenic, or another habit-producing drug. While the prosecutor may present significant evidence that you were under the influence at the time of driving the vehicle, the law does not clearly define what “under the influence” is. Therefore, you may be facing severe DWI penalties for a relatively small amount of drug tracings in your blood.

Defending Under the Influence

A person is considered “being under the influence” of a narcotic or marijuana if his or her condition affects judgment or control of a motor vehicle as to make it improper to drive on the highway. The prosecutor’s burden is to introduce proofs sufficient to establish beyond a reasonable doubt that, at the time of the arrest, a person suffered from a substantial deterioration of his mental faculties or physical capabilities and should not have been driving a vehicle.

The law in New Jersey says that the state should normally prove that a person is “under the influence” of a drug by expert testimony. The expert is typically a law enforcement officer who is qualified as a drug recognition expert or a medical doctor who is qualified to express an opinion about drug use. Notably, a lack of expert witness in a drug-related DWI may be fatal to the prosecution’s case. This often results in a dismissal or not-guilty verdict in a DWI drug case.

New Jersey police officers will use a variety of physical, psychological and scientific tests in connection with drunk driving investigations. These tests are referred to as field sobriety tests. The purposes of these tests are two-fold: First, they are administered to drunk driving suspects by a police officer to help establish probable cause that the suspect is under the influence of alcohol or drugs. Second, after an intoxicated driving suspect has been arrested, the police will frequently administer another series of tests in the controlled environment of the police station in order to gather evidence to prove the defendant’s state of intoxication beyond a reasonable doubt.

The police will typically obtain a sample of the driver’s blood or urine for analysis when they suspect DWI for drugs. The blood or urine samples are submitted to the state police laboratory for a toxicology analysis. A forensic chemist will conduct a test to determine whether there are any drugs present. If so, the chemist will identify the particular drug or drugs in the specimen. However, the chemist does not perform a quantitative analysis of the drug or drugs. This means the chemist cannot say how much of a particular drug was in the person’s body at the time of operation. Thus, the forensic chemist is unable to say that a person was under the influence of a drug simply because it was present in a blood or urine sample.

The chemist will only be allowed to testify in court as to the presence of a particular drug in a person’s body. This does not necessarily mean that the individual was under the influence of the drug at the relevant time. Many drugs will be present in blood and urine long after the physical effects (the high) have dissipated. This lack of evidence will give a defense attorney good ammunition for cross-examining the state’s experts and challenging the sufficiency of the evidence in the DWI case.


On May 25, 2011, Ocean City DWI attorney John W. Tumelty succeeded in getting Vanessa Camacho found not guilty of a DWI “for drugs” charge following a two-day trial.

The Ocean City Police arrested Ms. Camacho several months ago for speeding over the 9th Street Bridge-Causeway. She was stopped for doing 76 mph in a 30 mph speed zone. The police ordered Ms. Camacho out of the vehicle, had her perform field sobriety tests, and placed her under arrest for DWI. The arresting officer stated that the defendant failed the field sobriety tests that were performed on the street. The police department breath test results showed that she had no alcohol in her system. The arresting officer had Ms. Camacho evaluated by a Drug Recognition Expert police officer. Sgt. Daniel Dubbs of the Ocean City Police Department is a Certified Drug Recognition Expert in New Jersey. Sgt. Dubbs conducted a comprehensive physical examination of Ms. Camacho in an effort to determine whether she was under the influence of drugs. Sgt. Dubbs had her do coordination tests, eye tests, and checked her pulse, blood pressure and body temperature. Sgt. Dubbs concluded that Ms. Camacho was under the influence of a central nervous system stimulant and marijuana. The toxicology report was positive for Ecstasy, which is a hallucinogenic drug.

A not-guilty verdict was entered following two days of trial. This included testimony from the state’s toxicology expert who formed an opinion that Ms. Camacho was under the influence of drugs.Ocean City and Cape May County DWI defense attorney John W. Tumelty successfully argued that the evidence was insufficient to prove drug intoxication beyond a reasonable doubt. The defense hired an expert witness, Dr. Richard Saferstein, Ph.D. Dr. Saferstein is an expert toxicologist and a pharmacologist. He prepared a report where he stated that the defendant was not under the influence of drugs. Dr. Saferstein stated that Ecstasy can be found in human urine up to 72 hours after the drug is ingested and long after the effects of this drug have dissipated. The physical effects of Ecstasy only last two to three hours. Hence, there was absolutely no correlation between the presence of Ecstasy in the defendant’s urine and impaired driving performance. The extent of any impairment from drugs can only be estimated by a direct measurement of the quantity of Ecstasy in the blood. This determination was not performed by the forensic chemist working at the New Jersey State Police lab.

Mr. Tumelty cross-examined the police officers and the state’s forensic chemist. Sgt. Dubbs stated that Ms. Camacho failed several sobriety tests at the police station. However, her blood pressure and body temperature were normal, which is inconsistent with being under the influence of drugs. She did not show signs of slurred or impaired speech. Although the police said she was under the influence of marijuana, there was no odor of marijuana present on her or in her car. The police did not find any evidence of marijuana or smoking paraphernalia. The police had her do a finger-to-nose test at the police station, which she performed fine.

The state’s evidence in a DWI case for drugs must include a toxicology report showing drugs in blood or urine and testimony from a drug recognition police officer expert on his evaluation of the defendant. However, in this case the evidence was insufficient to sustain a conviction.

Contact The Law Offices of John W. Tumelty

I am John W. Tumelty, an experienced Atlantic City drugs and DWI attorney. I have been practicing criminal and traffic law for more than 30 years, first as a prosecutor and now as a defense attorney. I have been named by the New Jersey Supreme Court as a certified criminal trial attorney. I know how to build a strong defense and protect your rights in a DWI for drug case. Contact me today at 609-390-4600 for an initial free consultation to discuss your defense options.

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