If you’re charged with DUI/DWI in Pennsylvania or New Jersey, it’s important to consider an expert in your case to avoid not only a conviction but a driver’s license suspension

Alfonso Gambone
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Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

Our law firm represents individuals charged with driving under the influence (DUI) or driving while intoxicated or impaired (DWI) in Pennsylvania and New Jersey. In some of these cases, the accused person hasn’t ingested any type of alcohol. It’s important to keep in mind that in Pennsylvania and New Jersey a person can be charged with driving under the influence (DUI/DWI) if he or she is found operating a motor vehicle or car within either jurisdiction while under the influence of some legal or illegal narcotic, drug, or other substance.

 

In Pennsylvania this is a violation of 3802(d) while in New Jersey it is a violation of 39:4-50(a). In New Jersey and Pennsylvania, the prosecution must prove beyond a reasonable doubt that the person was in operation of the vehicle and under the influence of a drug, narcotic, hallucinogenic, or other habit inducing drug.

 

Why is New Jersey different than Pennsylvania with regards to Drugged Driving Cases?

 

In New Jersey, if a person is charged while driving under the influence of a narcotic or drug, the prosecution must introduce evidence of a qualified expert. This expert would testify at trial for the prosecution and be permitted to remain in the courtroom rather than be sequestered (kept out of the room to avoid hearing testimony.) While normally witnesses aren’t permitted to remain in the courtroom during the testimony of others, the procedure with regards to experts is different because they must be able to comment upon the testimony of the facts, witnesses, or other experts. There isn’t the same requirement on the prosecution in New Jersey where the allegation is that the person operated the car or vehicle while under the influence of alcohol. There is actually case law in New Jersey which states that an ordinary citizen is qualified to opine on the degree of a person’s intoxication following the consumption of alcohol. Remember that the prosecution must only establish that the person was incapable of safely operating a motor vehicle and not that they were “drunk”. This distinction is very important.

 

In Pennsylvania however, the Supreme Court has held that a “lay person not an expert”  can opine on impairment of a person’s ability to drive safely as it relates to being under the influence of drugs where there isn’t blood evidence.

 

PA’s 3802(d)(1) vs. 3802(d)(2)

 

Under 3802(d)(1), the prosecution would allege that a person was under the influence of a particular drug or metabolite through blood evidence.  Under 3802(d)(2), however, the Commonwealth is alleging the person’s ability to drive was impaired while under the influence of drugs without any type of blood evidence. Obviously a breathalyzer would not provide any assistance to the prosecution with this type of charge. Under Commonwealth v. Griffith there is a distinction between these two sub sections of PA’s DUI statute.  3802(d)(1) which prohibits one from driving if there is any amount of a Schedule I, II, or III controlled substance or any metabolite of a controlled substance in one’s blood.  3802(d)(2) prohibits one from driving while under the influence of any drug or combination of drugs to a degree where it impairs a person’s ability to drive safely. Since 3802(d)(2) is written very broadly, the court did not require the Commonwealth to present an expert, unlike New Jersey.

 

What an expert can do for your drug DUI/DWI case in Pennsylvania and New Jersey

If you’re charged with driving under the influence in Pennsylvania or New Jersey, it’s important to consider a medical expert or toxicologist in your case to avoid not only a conviction but a driver’s license suspension. The defense expert’s testimony would be critical to rebut the prosecutions expert in New Jersey where it is require. It would also be extremely helpful in Pennsylvania especially if the prosecution doesn’t present an expert and simply relied on the testimony of a police officer who, in most situations, has very little or no medical training.

 

If a person is charged with being under the influence of a drug like heroin, an expert could offer alternative theories to unresponsiveness and responses to the administration of a drug like Narcan and Naloxone. An expert could also comment on the lack of circumstantial evidence such as the lack of drug residue within a vehicle, needle marks on the accused, and other drug paraphernalia such as needles, syringes, tourniquets, or straws. It is not uncommon for a person to have medical episodes or even choking episodes while driving. Such episodes could explain a response indicative of impairment and create reasonable doubt in the eyes of a judge or jury.

 

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