Tuesday, July 1, 2014

Police DWI vs DWAI Drugs Investigations: Impaired by Drugs, Alcohol, or Combo

I had a roommate like this but with my cookies
from classicruby.com


New York Police use different enforcement techniques or methods depending upon the situation. When out patrolling the roads and by ways their eyes are on alert status for the abnormal or the out of place/position car. It helps if it is in between the hours of 10pm and 4am, because at that time of night many cars out and about at that hour have drivers and/or passengers under the influence of something. As an aside, I know from my clients food inclinations at that hour that the Ithaca Taco Bell on Route 13 closes at 2am.

First Questions: Narrowing the Field to "Impaired" Driving

Law enforcement must first discern if the negligent driving or bad driving or distracted driving is really "impaired" driving. That is, is this person under the influence of drugs or drugs and alcohol or just alcohol AND who is also unfortunately driving poorly because of that condition.

Tired, Lost, and Sick Can MIMIC

Tired driving or medically sick driving or I'm lost in Ithaca driving can also mimic impaired driving so the first question is always what do we really have?

If police smell alcohol, they assume you have been drinking.

The first line of questions: Have you been drinking? Have you had anything to drink tonight? What have you been drinking?

The second line of questions: Where have you been? Where are you coming from? Where are you going to?



THE LAW ENFORCEMENT DWI INVESTIGATION

If ALCOHOL has been consumed and verified by the questions then they move to a DWI (intoxication) investigation. Remember in New York State an "Intoxication" crime like common law DWI is a purely ALCOHOL offense. 

Police testing for alcohol as the cause of impaired driving will follow a specific protocol. This will first involve the SFSTS (standardized field sobriety tests). There are three main tests: HGN (horizontal gaze nystagmus) eye test, walk and turn test, and one leg stand test.

TIME: If instructed, directed, and scored properly these take around 10 to 15 minutes. Sometimes officers do them in less than 5 minutes.
PLACE: They are done at roadside. Outside and subject to conditions (road and weather).
WHEN GIVEN: They are done/given (performed) pre-arrest. 
WHO: They are usually given by one officer.
WHEN SCORED/NOTATED: They are usually scored, recorded, and written about by the officer post- test and of course post-arrest.
ALCOHOL TESTS: These tests were primarily designed and created for alcohol testing. Scoring is based upon a 0.10 BAC (blood alcohol concentration).

THE LAW ENFORCEMENT DWAI DRUGS INVESTIGATION

If the police believe you have taken DRUGS then the investigation will change to a DWAI (impaired by drugs) investigation. Did you admit to drugs? Did you make any drug based statements? Did they find drugs on you and/or in the car? Did you submit to a blood, or urine test?

THE "WHAT IF" GAME

WHAT If they have NO statements, WHAT if they have (found) NO drugs, and WHAT if they have NO tests then

HOW CAN THE POLICE STILL PROVE YOU ARE DWAI DRUGS?

By using a DRE.

NOTE: New York State Courts allow the police to prove drugs by using a DRE (Drug Recognition Evaluation). A DRE is an examination and testing by a certified DRE(Drug Recognition Evaluator).

Police testing for DRUGS as the cause of impaired driving will follow a specific protocol. This will first involve twelve steps or stages. In dramatic contrast to the SFSTS, the DRE is very different.

TIME: If instructed, directed, and scored properly these take around 60 minutes.
PLACE: They are done back at the station in a controlled environment.
WHEN GIVEN: They are done/given (performed) post-arrest.
WHO: They are usually given by more than one officer. One will be the scribe and take notes.
WHEN SCORED/NOTATED: They are usually scored, recorded, and written about by the scribe contemporaneously, at the exact time of the exam.
TESTS: These tests were primarily designed and created for drug category testing. Scoring is based upon a seven categories of drugs.

Sometimes the police will find both alcohol and drugs. It is in their ultimate discretion whether they pursue both alcohol and drug charges. Sometimes a blood test will be requested and ordered.

New York State Police Lab protocol only checks for drugs if they rule out alcohol as the source of your impairment. In other words, they will stop looking for anything besides a BAC (blood alcohol concentration) if they have over the legal limit.

BUT some District Attorneys will send the blood back and demand a search for drugs in the blood. Again this is in the DA's discretion. Some offices like to charge as many crimes as possible. With drugs and alcohol over .08 BAC, YOU can be charged with at least FOUR DWs:

DWI common law VTL 1192 (3): the opinion of the police
DWI per se VTL 1192 (2) .08 or more: the opinion of the breath test for alcohol
DWAI drugs VTL 1192 (4): commonly a marijuana DWAI
DWAI combo (drugs plus alcohol) VTL 1192 (4) (a): alcohol plus THC or other drugs

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

I am certified in Field Sobriety and Breath Alcohol Testing, and an active member of the National College of DUI Defense (NCDD). My online materials include over 500 blog posts, dozens of articles, and over 500 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.

http://www.ithacadwi.com

newman.lawrence@gmail.com