The percent of DWI charges that are dismissed each year has more than doubled over 10 years.
If a New Jersey police officer makes a driving while intoxicated (DWI) arrest today, the driver has a better chance of getting out of the charge compared to a decade ago, statistically speaking.
Conviction rates are generally high in the Garden State -- in 2008, 85 percent were found guilty of their DWI charges, and had to accept license suspensions, big fines and more.
But over the last 10 years, that rate slid to 71 percent, according to data from the state judiciary. At the same time, the percentage of DWI charges that were dismissed has more than doubled to 24 percent in 2017. Most of the time, those drivers are pleading to a different charge, like reckless driving.
So why are more DWI charges getting dismissed now?
Experts in New Jersey DWI law said there are several contributing factors, but the most supported theory is that the number of people being arrested for driving under the influence of drugs is going up.
"The state has a harder time proving those cases," said retired municipal Judge H. Robert Switzer. Most DWIs still involve alcohol, he said, but "what's happened in the last 10 to 20 years is an exponential increase in the amount of people driving under the influence of drugs."
Whether the increase in DWI drug arrests is due to more drug use or better detection by police, drugged driving cases present several problems for prosecutors trying to convict. One of the biggest is that there is no equivalent of a breath test for those suspected of driving while high, Switzer said.
NJ Cannabis Insider: Get a free look
It's a topic that's been on a lot of minds in law enforcement and state government, as New Jersey inches closer to legalizing marijuana. The state is training more officers to be drug recognition experts -- so they can opine whether a driver is under the influence of a particular drug -- and companies are rushing to create and sell the first breathalyzer for pot.
According to interviews with four DWI attorneys, two traffic officers and Switzer, dismissals are also up because attorneys are more able to get breath test and blood toxicology results thrown out, in some situations, compared to a decade ago.
The vast majority of people get their DWI charges dismissed when they plead to another charge. Most come with shorter suspensions, but refusal to take a breath test has penalties almost as severe as a DWI.
Plea deals aren't allowed in DWI cases, so the outcome is called an "alternative disposition."
"The goal is to get rid of the DWI or reduce the suspension time," said Cherry Hill attorney Evan Levow.
For a first offense DWI, depending on the blood alcohol reading, a driver faces a suspension of three months to a year, plus thousands in fees and surcharges, Levow said.
The analysis of court data also showed that the percentage of DWI cases ending in not guilty verdicts has stayed right around 5 percent over the last 10 years.
The number of new DWI cases has declined over that period, which may be due to increased awareness about the risks of driving while intoxicated or the rise of ride-sharing apps, some attorneys theorized.
Why drug cases are harder to prove
If you fail a field sobriety test and then at the station, blow a 0.0 on the breath test, you're probably going to meet a drug recognition expert, or DRE. The officer is called in to run tests, from blood pressure to pupil size. They compare the results to a matrix of drug symptoms and decide what type of drug you might be on.
And while that may sound like a pretty good system, there are many reasons a judge could be skeptical about the conclusions, Levow said.
The urine test, for example, doesn't actually prove the person was driving high.
"A urine test only shows the presence of the drug in the body but not how much," Switzer said. "It could be a trace amount or a large amount. It could be up to 30 days old" with some drugs.
A blood test could provide more evidence of the level of drug in the body, Levow said, but they're rarely done except in fatal or serious crashes.
John Menzel, an Asbury Park attorney, said he sees many cases where people are charged with DWI when the only drug in their system was legally prescribed. Sometimes a driver might legitimately be affected by the medication -- perhaps if he or she popped an extra Xanax due to stress -- but they might not, he said.
"If someone looks a little off or odd to the officer and they see prescription drugs somewhere, like in a purse," he said. "They jump to the conclusion that the driving they saw was due to drugs."
He said medical records and doctor's opinions about the driver's ability to drive on the medication can weaken the prosecutor's case.
Why are there more drugged driving arrests?
Experts say they believed there are now more arrests for driving under the influence of drugs -- mostly marijuana or prescription drugs -- but they had different theories on why.
It wasn't possible to get court data to confirm an increase in DWI drug arrests, because the cases are charged under the same statute regardless of whether they involve alcohol or drugs.
Most data on drugged driving comes from blood tests after fatal crashes, though this doesn't give a full picture of the amount of people driving high.
In New Jersey, there has been a small increase in the percentage of drivers tested after fatal crashes who had drugs or medication in their blood, according to State Police data.
Detective Nicholas Schock, president of the New Jersey Police Traffic Officers Association, investigates fatal and criminal car crashes for the Gloucester County Prosecutor's Office.
"There's definitely been an increase in the ones that are narcotics related," he said Wednesday.
Toms River Police Lt. Christopher Dudzik, president of the New Jersey Association of Drug Recognition Experts, agreed with Judge Switzer's statement that there are just more people driving after using drugs.
"Hands down, we've been definitely seeing more of it," he said. "There's definitely been more, between the opioid epidemic and marijuana."
Will legalization make roads more dangerous?
Most experts agreed that another thing driving the arrests is law enforcement's heightened focus and training on spotting drugged drivers.
While officers in the field are the ones making these arrests, Dudzik said, their investigations can now rely on more DREs than before. There are roughly 400 DREs in New Jersey today -- more than any other state other than California. He said that's compared to about half that 11 years ago, when he got certified.
Other factors
When defending drunk driving cases -- which are still the majority of DWIs -- attorneys now have more ammunition to shoot down evidence, the attorneys said.
"Lawyers are becoming more adept and more sophisticated at defending against the Alcotest," said Joseph P. Rem Jr., an attorney in Hackensack.
The Breathalyzer that was used in New Jersey until around the mid-2000s was a simple test where a liquid changed color, he said.
But the Alcotest, he said, is a "biochemical laboratory run by a computer" and it's more difficult to keep calibrated, among other issues.
"It's been a 10-year battle and case law resulted in more defenses for the accused drivers," Levow said.
The state Supreme Court has ruled that the Alcotest results should be accepted as evidence, but prosecutors must prove the test was done correctly, including with a calibrated machine and by a certified officer. If any part is missing, Levow said, the results can be thrown out and then the prosecutor just has observations of drunkenness.
Robert Ramsey, an attorney who also wrote a book on the state's DWI laws, said defense attorneys are also helped by the Supreme Court's rulings that police cannot take blood from a defendant without their consent or a warrant, in most cases.
Even if they can collect blood, Ramsey said the scandal at the New Jersey State Police drug lab has created an "enormous delay" that can make toxicology results take as long as six months.
According to DWI research provided by Levow, only 5 percent of DWI cases in New Jersey involve blood draws.
Will the trend continue?
If more people are getting arrested for driving under the influence of marijuana these days, a good breath test for pot could mean big changes.
Hound Labs of California has been testing a machine it says can detect trace amounts of THC in a driver's breath within two or three hours after use. It could be on sale in the end of June at the earliest, the company told NJ Advance Media.
Training more DREs also might help prosecutions, as Switzer said the availability of DREs has been an issue for some departments.
"Now with legalization, I would predict an increase in people driving under the influence of marijuana compared to other drugs," Switzer said.
And while some might worry about the rise in dismissals, Menzel said the outcomes are just products of a justice system that's working as it should, requiring proof beyond a reasonable doubt.
"Due process is a process," he said.
Rebecca Everett may be reached at reverett@njadvancemedia.com. Follow her on Twitter @rebeccajeverett. Find NJ.com on Facebook.
Have a tip? Tell us. nj.com/tips