Sunday, July 13, 2014

Proving New York DWAI Drugs: Urine Tests are Not Always Enough

Metabolites are NON ACTIVE and


More and more I see the police charging DWAI drugs in Upstate New York. After DWI alcohol charges this is the second most common with marijuana (THC) while driving cases. After all marijuana is the second most commonly used substance after alcohol.

It is too easy to say, "Driving while Drugged." But there is quite a bit of difference between having a drug in your system, and being impaired by a drug in your system.

In order to prove New York State DWAI drugs VTL 1192 (4), the government must prove 4 things.

This is from the case of People v. Kahn, 610 N.Y.S.2d 701

The four elements of the crime are:

1. You ingested a DRUG (ingested aka ate, snorted, smoked, shot)

2. The DRUG (substance) was on the list of Public Health Law section 3306 (see, VTL section 114-1)
The list is crazy long and inclusive.

3. After ingesting this DRUG you operated a car (see, VTL section 125)

4. While operating the car your ability to operate was impaired by the DRUG.

Significant to EVERY prosecution by the government is Proof beyond a reasonable doubt that
YOU suffered impairment to any extent of your physical AND mental abilities that YOU are expected to possess as a reasonable and prudent (safe) driver.

In People v. Kahn, there was found benzos (benzodiazepin) in the urine. Now benzos in the urine can be detected sometimes 2 weeks after ingestion. Urine measures metabolites (the byproducts of the break down of drugs).

Benzos in the urine can last for weeks!

A blood test would have revealed a true measure of drugs in the blood stream at or close to time of driving. In addition, Kahn testified to his intensive traveling before driving, his unfamiliarity with his daughter's car, and his overall fatigue.

The Main Argument in any DWAI drug case is "Totality of the Circumstances"

Totality of the circumstances = behavior plus DRUG ingestion. The government will probably not have much difficulty proving the first three elements of most DWAI drug cases.

1. Ingestion can be proven a number of ways: admissions, finding of drugs, smell of drugs, DRE (drug recognition evaluation), urine/blood test. Of course Blood is infinitely better to prove a DWAI drug case than Urine.

2. DRUG (substance) was on the list.

3. You drove (operated), which is less than real/actual driving in NYS.

4. Impairment by a drug affecting your operation?

Their real prosecutorial burden will likely be on ELEMENT NUMBER 4.

Are there good reasons to explain YOUR behavior and driving?
Are there both mental and physical behavior factors other than drug influence?

A Successful (defense) Conclusion to a Weak Urine Case

A case (a defense) can be made that the "mere presence of a metabolite (urine test for drug) in the urine
plus tired behavior DO NOT = DWAI drugs" as I paraphrase the Kahn Court.

Mr. Kahn had a bench trial in front of a judge. He called in a drug expert who testified about the drug, the drug metabolite's presence in the urine, and his opinion as to Mr. Kahn's behavior. The judge found Mr. Kahn NG (NOT GUILTY) of DWAI 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.