I have a felony DWI that is going tomorrow so I need a fast response. The facts are this off duty trooper (captain in uniform) sees erratic driving of D. Calls trooper in marked car to stop the D. Marked car trooper stops car after personally observing erratic driving. Captain trooper stops as well and assists and while marked car trooper is asking questions Captain sees roaches in ashtray. Found marijuana on D at jail and D admits on side of road that he had smoked marijuana that day it is now 7PM. Open container also found and alcohol smelled on D's breath. Breath Test refusal but flunks SFST's with flying colors. Alleged in indictment intoxication by alcohol and other drugs or combination (not exact wording but you get the idea). Motions in Liminie this afternoon and D wants to exclude on the basis that no expert designated to testify as to how long effects of marijuana. Any cases that refute this would be helpful. Smithhart and Lewis are two cases cited by defense. Thanks in advance for any help.

It sounds like the defendant is saying "I admit I smoked dope but it was so much earlier in the day so it couldn't have contributed to my later intoxication."

Perhaps the defendant should produce an expert to back up this claim that the effects of the drug would have subsided?

If the language of the indictment tracks the language of the statute then you can win by proving impairment due to alcohol, drugs, or both.

quote:

---

"Intoxicated" means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body

---

Its not like this is a burglary or something where evidence of the defendant using intoxicating drugs earlier in the same day where the prejudice outweighs the probative. Intoxication is the core element! Oh well, I'm not a lawyer.

Seems like a lousy performance on the FST should get you where you need to go.How would an expert help? All you need to show is that he smoked a little weed then drank enough alcohol to impair his abilty to perform the simple tests. Good luck! Let us know what happens.

For an interesting case on that subject, refer to Nevada V. Jessica Williams. You can also find information on this case at www.courttv.com. Go to the archives and it will lead you there.