Injured by a Driver High on Marijuana in New Jersey

One involved in any sort of traffic accident can experience a wide range of unpleasant emotions. These feelings are justifiably heightened where the accident is caused by one so irresponsible as to drive while under the influence of drugs or alcohol. Given the State of New Jersey’s move towards the legalization of the possession and sale of marijuana, backed by 67% of New Jersey voters in the 2020 election, one might reasonably expect a forthcoming increase in traffic accidents involving drivers under the influence of marijuana. For one so unfortunate as to be injured by the selfish and reckless acts of one driving while high on marijuana, knowing one’s rights and attaining the services of an experienced personal injury attorney are two crucial first steps on the road to just compensation.

How Is Marijuana Treated Under New Jersey’s State Law?

Though New Jerseyans voted in November 2020 to amend the state constitution to legalize the possession and sale of marijuana, this policy has yet to be actualized in the form of laws and regulations. Without such guidance, New Jersey’s state law presently allows people to possess and distribute marijuana only under narrow medical circumstances.

Nevertheless, neither present law, nor future laws and regulations stemming from the recent legalization of marijuana in New Jersey, will change the fact that driving while under the influence of marijuana is prohibited. NJ Rev Stat § 39:4-50 (2019) criminalizes driving while under the influence of “intoxicating liquor, narcotic, hallucinogenic or habit-producing drug.” One caught driving while under the influence of such substances can be subject to both criminal punishment and, if their driving causes injury to another, civil responsibility through a lawsuit.

What Is Known About Marijuana-related Traffic Accidents?

The Center for Disease Control reported that in 2018, 12 million U.S. residents aged 16 and over self-reported driving while under the influence of marijuana. The research community suggests that driving while high on marijuana occurs with startling frequency and that marijuana intoxication likely impairs driving ability but cautions that more research needs to be done. There is relatively little conclusive research concerning, for example, the frequency of marijuana-related traffic accidents or the precise effects of smoking marijuana on one’s driving ability. This is because marijuana has only recently been legalized by a handful of states and remains illegal at the federal level.

A study published in the American Journal on Addictions indicates that the reported percentage of traffic accidents involving a driver testing positive for marijuana ranges from 6% to 32%. It goes on to discuss how the level of driving impairment caused by marijuana varies widely depending on the dosage consumed by the driver. It cautiously concludes that marijuana may generally impair at least some crucial driving skills, though drivers under the influence seem to effectively combat these impairments by driving more carefully. The bottom line is that driving while high on marijuana is at the very least an unnecessary risk, and more research is certainly needed to fully understand the effects.  

What if I’m Involved in a Marijuana-related Traffic Accident in New Jersey?

Though involvement in a traffic accident is understandably disorienting and upsetting, knowledge of the necessary steps one should take after an accident is paramount to complying with the law and preserving a strong case for just compensation. Our attorneys frequently remark that while investigations after an accident prove valuable, traffic accidents are unique in that much of the most forceful evidence is best collected right after the event. After a traffic accident, one should prioritize the safety of themself and others involved but also, when it is safe to do so, begin to undertake the necessary measures to build a successful case for compensation.

Options for Compensation

Year after year, traffic accidents devastate families across the country with loss of life, serious injuries, and enormous expenses. While money often cannot completely remedy the harms inflicted by a traffic accident, just compensation can ease the heavy financial burden and go a long way toward making victims whole again. One involved in a marijuana-related traffic accident in New Jersey may achieve just compensation by the following:

  1. No-fault or Personal Injury Protection (PIP) Benefits
  2. Third-party Insurance Claims
  3. Filing a Lawsuit
  4. Small Claims Court

No-Fault or Personal Injury Protection (PIP) Benefits

New Jersey is a “no-fault” state. This means that New Jersey’s state law requires registered drivers to carry insurance that provides personal injury protection benefits. Under these benefits, the insurance policy must cover up to a certain amount of monetary expenses in the event of a traffic accident for those covered by the policy, regardless of who was at fault for causing the accident. This is achieved by making what’s known as a no-fault claim.

Personal injury protection benefits cover three categories of monetary expenses: medical expenses, reimbursement for lost wages and other necessary accident-related expenses, and death benefits. For “basic” policies, PIP coverage is typically $15,000 per person, while “standard” policies range from as low as $15,000 per person to as high as $250,000 per person. It’s a good idea to consult your own policy to learn the precise amount of PIP coverage.

Excluded from personal injury protection benefits are non-monetary expenses, such as pain and suffering, and property damage. A person hoping to recover non-monetary expenses must pursue either a third-party insurance claim or a lawsuit.

Third-party Insurance Claims

Traffic accidents frequently inflict harm far beyond what personal injury protection benefits are equipped to cover. When someone wishes to seek non-monetary expenses, such as pain and suffering, or when personal injury protection is insufficient to cover expenses, the next step is likely filing a claim with the at-fault driver’s insurance company, commonly called a third-party insurance claim.

Pursuing a third-party insurance claim (or a lawsuit) entails going outside of the no-fault coverage system. Whether one can do so under New Jersey’s state law depends on two main considerations: (1) one’s type of coverage and (2) the lawsuit threshold. The first distinction the law makes is between basic policies, “limited” standard policies, and “unlimited” standard policies.

  • IF one has a basic policy, they must meet the lawsuit threshold to go outside of no-fault coverage
  • IF one has a limited standard policy, they must meet the lawsuit threshold to go outside of no-fault coverage
  • IF one has an unlimited standard policy, they may go outside of no-fault coverage without meeting the lawsuit threshold

The second consideration, applicable only to those with basic and limited-standard policies, is the lawsuit threshold. NJ Rev Stat § 39:6A-8 (2019) provides that in order for one to go outside of no-fault coverage, the victim of a traffic accident must have sustained bodily injury resulting in at least one of the following:

  • Death 
  • Dismemberment
  • Significant disfigurement or significant scarring
  • Displaced fractures 
  • Loss of a fetus 
  • A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement

Third-party insurance claims entail an insurance adjuster investigating the accident and determining which driver is at fault. Unlike no-fault coverage, fault directly affects the amount of compensation a claimant will receive in a third-party claim. Predictably, insurance companies are hesitant to pay out large sums, and consequently, an insurance adjuster might be hesitant to find its covered driver at fault. As such, one should avoid pursuing a third-party claim without the representation of a qualified personal injury attorney. A quality attorney will hold the insurance company accountable, arguing the injured driver’s case and, and negotiating a fair settlement.

Filing a Lawsuit

A second option for those wishing to go outside of no-fault coverage is filing a lawsuit. Though a lawsuit involves more procedural, legal steps than a third-party claim, this option offers the benefit of impartiality, as the case will be heard and decided by an uninvolved judge or jury, rather than by a potentially more biased insurance adjuster.

As with a third-party claim, people filing a lawsuit must first satisfy the lawsuit threshold if they have a basic or limited-standard policy. Once this threshold is met, a lawsuit accuses the other driver of being at fault for causing the accident and may request compensation for both monetary and non-monetary accident-related expenses. A vast majority of lawsuits don’t actually end with a trial and jury verdict. Most cases involve a settlement, where the attorneys for both sides negotiate a fair amount to compensate for the injuries suffered. The statute of limitations for filing such a lawsuit under New Jersey’s state law is two years from the date of the accident.

A final wrinkle to be aware of is that a lawsuit is not always limited to accusing the other driver of being at-fault. Parties other than the drivers can be at fault for causing an accident, most commonly car manufacturers and the State itself. Lawsuits for injuries suffered in a car accident are often levied against car manufacturers for some defect in the vehicle that might have contributed to the accident. The State is also commonly sued when a driver feels a dangerous road condition caused the accident.

Though a lawsuit involves an element of impartiality missing from third-party insurance claims, it is still not recommended that one pursue this option alone. Filing a lawsuit brings its own complexities, namely vastly complicated and numerous procedural rules requiring the expertise of a skilled attorney. Our attorneys note that, at best, pursuing such a lawsuit without representation results in drivers missing out on thousands of dollars they are justly owed; at worst, procedural technicalities lead many novice self-represented litigants to lose otherwise winnable cases entirely.

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Small Claims Court

A final option for someone injured in a marijuana-related traffic accident is small claims court, a division of the New Jersey Special Civil Part Court. Small claims court is reserved for monetary claims for amounts up to $3,000. For traffic accidents, this option is commonly used to recover compensation for vehicle damage. The procedural rules are relaxed in small claims court, making it more accessible to self-represented litigants, though New Jersey’s state law allows litigants to be represented by an attorney in small claims matters.

Determining Fault in a Marijuana-related Traffic Accident

In determining fault in any car accident, both insurance adjusters and courts customarily ask whether the allegedly at-fault driver was negligent. The concept of negligence is wrought with complexity, but the basic question is whether the accused driver had a legal responsibility to be careful, failed to be careful, and this failure caused the accident and resulting injuries.

Determining fault in a marijuana-related traffic accident is not strictly limited to asserting that the other driver was under the influence of  marijuana and that this marijuana intoxication caused the accident. The term “marijuana-related traffic accident” is meant to characterize a broad category of car accidents by the specific type of impairment of the offending driver. However, this category can include any manner of collision, from head-on crashes to side-impact collisions. Circumstances of the accident other than intoxication will commonly factor into consideration of fault for causing the accident.

Indeed, it is presently rather difficult to build a case solely on the charge that the other driver was under the influence of marijuana. Though impaired driving certainly falls within the category of negligent driving, it is difficult to prove the other driver was high on marijuana in a way that caused the injury. First, when police arrive at the scene of an accident, there is no guarantee that they will ask either driver to submit to a urine or blood test that could reveal the presence of THC, the psychoactive chemical compound in marijuana, in a person’s system. A blood draw or urine sample would likely occur only if the police had reasonable suspicion that the driver was high or if the driver was sent to the hospital to be treated for their injuries, where blood or urine is commonly tested to inform the doctor’s treatment of the patient. Thus, it is often difficult to know whether the other driver was high on marijuana.

Even if one can prove the other driver had THC in their system at the time of the crash, a second challenge is proving this intoxication was the cause of the injury. As mentioned earlier, research concerning the effects of marijuana on driving is underdeveloped and uncertain. New Jersey also lacks clear state laws concerning marijuana impairment, such as a legal THC limit for the operation of a vehicle.

Though there is a lack of New Jersey case law concerning marijuana-related traffic accidents, a famed California case, David v. Hernandez, ably demonstrates the difficulty proving marijuana intoxication can entail in a traffic accident case. David Hernandez was driving a tractor hauling 45,000 pounds of cement on a flatbed trailer across the southbound lane of a highway, attempting to reach the northbound lane, when he collided with Joshua David, who was traveling southbound. Hernandez appealed a $3.3 million dollar jury verdict entered against him on the basis that he felt the court improperly refused to hear expert testimony proving that David was high on marijuana at the time of the accident and, therefore, partly responsible for the collision.

Immediately following the accident, David had admitted to the emergency room physician that he occasionally uses marijuana but claimed to have not used it in the 36 hours preceding the accident. David’s urine, however, tested positive for THC. Unfortunately, the test did not report the amount of THC, though testing positive meant at least 50 nanograms per milliliter was present in his system. It also did not show whether or not the THC was “active,” meaning still having the potential to make the person impaired.   

Hernandez’s expert was going to testify that research supports that having THC in one’s system can impair a person even 36 hours after consumption and that David’s symptoms following the accident, such as increased heart rate and confusion, indicated marijuana intoxication. All this was to suggest David was impaired and thus contributed to the accident. The doctor that treated David on the day of the accident disputed Hernandez’s expert’s assertions, pointing out that THC can be captured in a patient’s urine even weeks after marijuana use and that David did not appear impaired in any way when he was under her supervision. She said David’s increased heart rate and confusion could be attributed to the shock of being in an accident, and not necessarily recent marijuana use. The court ultimately sided with David, citing the lack of solid evidence to support Hernandez’s expert’s claims.

Fortunately, marijuana-related accidents don’t exist in a vacuum. Though marijuana intoxication might be a factor in the fault inquiry, a traffic accident necessarily involves other elements contributing substantially to fault. For example, if someone is involved in a head-on collision, fault commonly resides with the driver in the wrong lane of traffic. If that driver happened to be high on marijuana, that fact would certainly help prove the argument that they were at fault.

In investigating and determining fault in a marijuana-related traffic accident, our expert team of attorneys tirelessly scrutinize all factors that potentially caused an accident. We interview witnesses, assess damage, consult traffic camera footage and police reports, and will even undertake to question the other driver. We are committed to learning the precise cause of the accident and proving convincingly who is liable.


Frequently Asked Questions

Does marijuana cause car accidents?

Not necessarily. There isn’t presently enough reliable research to say conclusively whether or not marijuana causes car accidents. Some studies suggest marijuana does cause impairment of certain driving-related skills, such as motor coordination and visual function, as well as general difficulty with complex tasks. There seems to be a general consensus that a mixture of marijuana and alcohol intoxication is certain to cause unacceptable impairment of one’s driving skills. Nevertheless, it is not easy to prove a driver was high on marijuana, and that this is what led to an accident.

Does being high on marijuana automatically make one at fault for a car accident?

No. In addition to there being a serious lack of reliable research guiding decision makers in determining whether marijuana intoxication causes impairment sufficient to impart responsibility for causing a traffic accident, other factors in an accident can trump marijuana intoxication. For example, the law presumes the driver at the rear in the event of a rear-end collision is at fault. This presumption can be defeated by certain types of evidence but is not necessarily defeated just because the driver in the front was high on marijuana. If car A is sitting at a red light and car B fails to slow down in time and hits car A from behind, car B is likely responsible even if the driver of car A is found to be under the influence of marijuana at the time.

Can I still be compensated if I was partially at fault for the car accident?

Yes. If pursuing a third-party insurance claim or a lawsuit, whether someone can recover despite being partially at fault depends on the percentage of blame apportioned to them by the decision maker. New Jersey follows a modified comparative fault model, meaning the person or people determining fault in a car accident undertake to determine each driver’s percentage of responsibility for causing the accident, and drivers may or may not be able to recover compensation depending on their percentage of fault. For example, where there are only two drivers involved in a case, the driver deemed to carry more than 50% of the fault cannot recover compensation through a lawsuit or third-party insurance claim. Additionally, one can always recover compensation regardless of fault through personal injury protection benefits.

Can I still be compensated after a car accident if I’m uninsured?

Yes. First, it’s worth noting that it is not advisable to drive without insurance. NJ Rev Stat § 39:6B-1 (2019) mandates that registered New Jersey motorists carry auto insurance, and NJ Rev Stat § 39:6B-2 (2019) prescribes criminal penalties for New Jersey motorists driving without insurance. Nevertheless, an uninsured New Jersey motorist injured in a traffic accident may recover compensation by way of a lawsuit or third-party insurance claim, provided the other driver is at fault. This compensation is limited to monetary damages; uninsured motorists may not recover non-monetary compensation, such as pain and suffering.

Does the other driver have to submit to a drug test?

No. New Jersey does have an “implied consent” law whereby New Jersey motorists are said to have given their implied content to submit to a breathalyzer test when suspected of driving while intoxicated by police. However, this law does not include implied consent to blood or urine tests, which are the primary means by which an officer would test for marijuana intoxication.

Can a criminal “driving while intoxicated” (DWI) case affect a personal injury lawsuit against an intoxicated driver?

Yes. Ordinarily, when an event or circumstance produces both criminal and civil cases, the defendant in the criminal case can ask for the civil case to be put on hold until the criminal case has concluded. The reason is that all criminal defendants in the United States have a right against self-incrimination under the Fifth Amendment to the Constitution. Any admissions in a civil case could incriminate a defendant in their criminal case if the civil case were to happen before or at the same time as the criminal case. For example, John could face a criminal DWI case and a civil personal injury case for causing a car accident while driving under the influence of marijuana. If John admits to using marijuana before driving in the personal injury case and the personal injury case happens before or at the same time as the DWI case, this fact could be used against John by the prosecutor in the criminal DWI case.


Who Should I Contact if I’ve Been in a Marijuana-related Traffic Accident?

Suffering any injury at the hands of a traffic accident is a profoundly unfortunate circumstance. The injustice is compounded where such accidents are caused by the irresponsibility of another driving while under the influence of drugs or alcohol. The passionate, expert personal injury attorneys at Rosenblum Law are eager to fight such manifest injustice and achieve just compensation for those injured in a marijuana-related traffic accident. E-mail or call 888-815-3649 for a free consultation.

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