Drugged Driving Defense, Tolerance, and Impairment

         Our criminal defense law firm represents individuals charged with driving while intoxicated (DWI) and driving under the influence (DUI) in New Jersey and Pennsylvania. While most people typically associate a DUI/DWI with alcohol, it can also involve legal prescription drugs and as well as illegal drugs and narcotics. Pennsylvania, under Title 75 Section 3802(d) an individual may not drive, operate, or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(subparagraph d1) If there is any Schedule I, II, III controlled substance which has not been medically subscribed or a metabolite of Schedule I, II, or III controlled substance.

• (subparagraph d2) A person can commit a DUI even if a drug is legally prescribed under Section 3802(d)(2) if that drug or combination of drugs impairs an individual’s ability to safely drive, operate, or be in actual physical control of the movement of the vehicle.

• (subparagraph d3) Finally, under 3802(d)(3) a person can commit a DUI if he/she is under the influence of any combination of alcohol or drugs to a degree which impairs his ability to safely drive, operate, or be in actual physical control of the movement of a vehicle.

What the prosecution must prove to convict under 3802(d)(2) & (d)(3) in Pennsylvania

Keep in mind that 3802(d)(2) & (d)(3) do not require the Commonwealth to introduce specific chemical evidence which details the amount of a substance within a person’s blood but rather that it is able to establish its burden of proof through the arresting officers testimony or some other form of direct evidence. Obviously in cases where the prosecution does not have chemical evidence are much more difficult to obtain a conviction but are not impossible.

Drugged Driving in New Jersey

New Jersey has a very similar drunk driving statute under 39:4-50 (driving while intoxicated). In New Jersey, a person is guilty of that offense if he or she operates a motor vehicle while under the influence of alcohol, narcotics, hallucinogenic, or habit inducing drug. Unlike Pennsylvania however, the prosecution in New Jersey isn’t’ required to prove impairment beyond a reasonable doubt, only that the person was operating the car or vehicle while intoxicated under the drugs or alcohol.

What You Need To Know About Impairment & Your Drugged Driving Case

The burden of proof is always on the prosecution and in Pennsylvania impairment is a critical part of the DUI statute where the Commonwealth or prosecution isn’t required to produce chemical evidence under 3802(d)(2) & (d)(3) along with 3802(a)(1) (general impairment). If impairment is an issue in your drug driving case, it is important that your criminal defense lawyer consider retaining an expert who can testify as to tolerance of drugs. The effects of a drug or alcohol will generally correlate with the amount of the substance present within the blood but there are many important exceptions to that rule. Tolerance and an individual’s sensitivity or lack of sensitivity to the effects of a substance may be much more important than the level of that substance in the body.

Why tolerance is important to your defense?

Tolerance is defined as decreased sensitivity to the effects of a medication or toxin. Tolerance is particularly important when the sedative hypnotic effects of drugs such as oxycodone, alprazolam, Xanax, are taken on a chronic basis.

There is considerable medical evidence that tolerance may develop over a short period of time and in some cases as early as within a week of the first dose. Individuals taking opioids may function at a high intellectual and motor skill level. They can safely operate motor vehicles and person utilizing methadone and buprenorphine in very high quantities are allowed to drive a motor vehicle without a license restriction. Many patients with chronic pain, even if treated with potent drugs such as morphine, show comparable driving abilities as untreated persons.

Keep in mind that police officers are not trained medical experts and often base their conclusions on field sobriety testing which have not been validated for impairment for drugs and often fail to take into account physical limitations of the test taker.

If you’re charged with drugged driving in Pennsylvania or New Jersey it is very important that you discuss these issues with a qualified criminal defense lawyer prior to proceeding to trial or entering a guilty plea.