Driving under influence of prescription medication and being charged wit...

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

APPEARANCE
AND ARRAIGNMENT WAIVED

PRE‑TRIAL
MOTIONS

         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