Under NJSA 2C:35-10(b), an individual is guilty of a disorderly persons offense if he is under the influence of a controlled dangerous substance. One is not guilty of being under the influence of CDS if the substance has been lawfully prescribed by a physician and is being taken in accordance with that prescription.
It is important to note that in order to obtain a conviction under this section, the state need not prove that the defendant was under the influence of any specific drug. A conviction can be sustained by proving that the accused did manifest physical and psychological symptoms or reactions caused by the use of any controlled dangerous substance.
The interesting aspect of these cases is whether the testimony of the officer regarding his opinion about the condition of the defendant at the time of arrest is admissible as a lay witness opinion or as expert testimony. For example, in certain DWI prosecutions involving drug related intoxication, the state must offer expert testimony regarding the manifestations of drug induced intoxication.
From an attorney’s prospective, I always argue that the state must put an expert on the stand to prove that the defendant was under the influence. Although the state need not prove the specific narcotic involved, they must prove that the defendant exhibited the symptoms consistent with a drug induced condition. I always argue that a police officer is not qualified to make this determination unless he/she has some type of specific training to do so. For example, a drug recognition expert.
This offense is categorically the same as being charged with simple possession. Therefore, a defendant who is convicted of this offense will be subject to all the same penalties, including loss of license, jail time, and heavy fines. Accordingly, if you have been arrested and charged with the New Jersey drug offense of being under the influence, you should take all the steps necessary to defend yourself against the charges.