Saturday, January 7, 2017

Ithaca DWI Lawyer: Why Immigration and New York DWAI Drugs Charges Don't Mix


Many people don't realize that a New York State DWAI (driving while ability impaired) by drugs is really a controlled substance offense no matter the drug. Even though marijuana is the most common DWAI drugs offense to be charged, and even though New York does NOT classify marijuana as a controlled substance. Why is this true? And more importantly why should this matter to anyone?


The Federal Government Still Classifies Marijuana as a Controlled Substance


Because Federal law under 21 U.S.C. 802 (lists all the controlled substances) makes it a crime to possess, sell, or distribute controlled substances unlawfully. Federal law trumps state law every time, if they say it does. Now any marijuana charge will potentially have a Federal consequence. So even a DWAI drugs charge of any type (pills, coke, speed, hash, or marijuana) will be considered a controlled substance offense Federally.

Non-Citizens Have Serious Consequences Federally From a New York DWAI Drugs Charge


Lawful permanent residents, and people here on student visas have to be concerned about being charged and convicted of ANY controlled substance related offense. The number one unforgiving consequence is deport-ability.

Generally Deportability with the Following Criteria:

1. Noncitizen
2. After Admission to the United States
3. Is Convicted of
4. A Violation of State Law
5. Relating to a Controlled Substance

New York Has Controlled Substance Related Offenses That Trigger Deportment


This could be a charge of New York State Criminal Possession of a Controlled Substance in the 7th degree. Which is merely one pill of any controlled substance in your pocket or purse or back pack without a legal prescription.

This could be your being charged with DWAI drugs based upon your admitting to taking a drug, submitting to a DRE (drug recognition evaluation), possessing drugs, urine or blood test.

DWAI drugs in New York State has a very low burden of proof based upon it's legal definition:


A person’s ability to operate a motor vehicle is IMPAIRED by the use of a drug when that person's use of a drug has actually impaired, 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.7

The law does not require any particular chemical or physical test to prove that a person’s ability to operate a motor vehicle was impaired by the use of a drug. To determine whether the defendant’s ability to operate a motor vehicle was impaired, you may consider all the surrounding facts and circumstances, including, for example:

the defendant’s physical condition and appearance, balance and coordination, and manner of speech;
the presence or absence of an odor of a drug;
the manner in which the defendant operated the motor vehicle;
[opinion testimony regarding the defendant’s being under the influence of a drug];
[the circumstances of any accident];
[the results of any test for the presence of drugs in the defendant’s blood]. 
                                                                            NEW YORK STATE JURY INSTRUCTIONS

Possession of an illegal substance like concentrated hash oil in any quantity will also trigger the charge of Criminal Possession of a Controlled Substance in the 7th Degree, and will NOT be subject to the marijuana exception explained below.

There is a Federal exception for personal use of possession of marijuana less than 30 grams but not if you are in possession of other substances, and not if you are DWAI drugs.

 Section 237(a)(2)(B)(i) of the Act similarly provides that “[a]ny alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable.” INA § 237(a)(2)(B)(i).  
Many times drug charges can be defended successfully to guard against deportation. Remember every case is different, facts are not always the same, and circumstances must be reviewed specifically. This is not a guarantee of a result in any way but do not take the power of the government lightly.