FORMER PROSECUTOR DEFENDING ALCOHOL AND DRUG RELATED ARRESTS!  

 DWI, Drugs & Alcohol Defense Attorney

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​DWAI drug cases involving legally prescribed drugs have recently gotten their share of attention in the local news.  According to National Institute of Drug Abuse, it is estimated that in 2012, 10.3 million people have been reported driving under the influence of drugs.  As with its counterpart, Driving While Intoxicated, law enforcement and the state legislature will likely continue to push for yet harsher penalties for this seemingly crime du jour.

DWAI Drugs cases typically involve the participation a Drug Recognition Expert (DRE) - trained to recognize impairment in drivers under the influence of drugs rather than alcohol impairment or intoxication.  DREs are supposed to follow a standardized protocol for examining a motorist suspected of driving under the influence of drugs to determine (1) whether or not the suspect is impaired; and if so, (2) whether the impairment relates to drugs or medical condition(s); and if drugs,  the (3) what category or combination of categories of drugs are the likely cause of the impairment. Quite a subjective tall order to be purportedly performed on an objective basis.

DWAI Drugs VTL 1192(4)

​DREs generally take the driver’s oral medical history and assesses their temperature, blood pressure, pulse, pupil size and reaction to light, and motor coordination, etc.  Blood samples may be taken.  Similar to the DWI evaluation, the DRE also examines the driver’s optical tracking, smooth pursuit, or lack thereof, as the Horizontal and Vertical Gaze Nystagmus test.    While these tests are claimed to apply objective standards, they are still administered by law enforcement looking for an explanation for the arresting officer’s observations of impairment and subjective interpretations of the motorist’s performance.  That is why it takes experienced defense counsel to maneuver through the facts and the law to reach a successful result in the case.

​DWI charges are not always the direct result of alcohol. The consumption of prescription drugs or illegal drugs alike can inadvertently lead to DWI charges if they impair a driver’s ability to operate his or her vehicle and the police officer cannot distinguish the purported root cause.  Alongside DWI offenses, New York State Vehicle and Traffic Law does, however, provide specific charges and penalties in cases of prescription or other drug abuse. 


Hence, the Driving While Ability Impaired by Drug DWAI Drug offense:

NOTE: Even Lawfully Prescribed Drugs! 


This serious offense even applies to drivers impaired by a drug the motorist may have a legal prescription for, and has taken in accordance with that legal prescription. The alleged impairment producing drug, legal or otherwise, must be on the very broad list of controlled substances enumerated in the NYS Public Health Law.  ​


A misdemeanor conviction under this DWAI section can result in a fine of $1000, $260 sur-charge, up to 1 year in jail and/or probation, and license revocation for a minimum of six months.  And, most importantly, a permanent criminal record!


Statutorily, this is not a defense against the DWAI Drugs charge (although, as can be seen from one of my recently dismissed DWAI drugs cases below, the legality may be offered for consideration in the court’s overall analysis on a pre-trial motion or at trial.)

§1192(4)   Driving while ability impaired by drugs. No person shall operate a  motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.​


As can is illustrated by pertinent portions of a New York template jury charge, the "impairment" is a low standard of proof; i.e.,  "to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver."  [Emphasis added.]


"In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case beyond a reasonable doubt, both of the following two elements:
          1.      That on or about  (date) , in the county of  (county), the defendant,  (defendant’s name) , operated a motor vehicle; and
          2.      That the defendant did so while his/her ability to operate the motor vehicle was impaired by the use of a drug.


          Therefore, if you find that the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of the crime of Driving While Ability Impaired by Drugs as charged in the count."​