Tuesday, January 22, 2019

How to Avoid Problems with Your Drug/Alcohol Evaluation

OASAS is also Anti-tobacco
In New York if you are charged (not convicted) with any drinking or drugging DUI (DWI/DWAI drugs) then you will have to have a OASAS drug/alcohol assessment. This is no longer voluntary, this is a requirement of the times we live in. Every New York DWI judge now requires this before sentencing for a number of reasons.

Is it a fair to require a comprehensive evaluation for every single DWI arrest?
Is the evaluator I pick going to be biased or prejudiced against me?
Do I have to be on the defense when it comes to my New York DWI evaluation?

Some OASAS DWI Evaluators on a Mission to Eradicate Drug and Alcohol Use? 

I have spoke to some evaluators who feel it is their purpose to get drunk and impaired drivers off the road. They feel anyone charged with a DWI or DWAI drugs is a problem drinker/drug abusing/reckless person. Some bring this perspective into the evaluation process which means you are starting from a bad place.

I believe that it's a noble cause to want to clean up Dodge but is it really their job to protect the public? Is it their job to assume that everyone charged with a DWI is guilty as charged? Is it their job to vilify any recreational drug use as bad? Should they use their position to punish those who use alcohol and/or marijuana? Putting all ethics and morality aside can the public get a fair shake?

I feel they should evaluate and assess with people with an objective eye. They should not bring their personal prejudices into an evaluation or more importantly to a report and recommendation. With this in mind I want to clarify the process and pitfalls. Remember that this evaluation is a mental wellness check and a drug/alcohol use assessment. Making their findings to the Court and DA that much more important.

You will have a drug/alcohol screen/evaluation for your arrest for DWI or DWAI drugs for the following three reasons: 

1. Under NYS law, an alcohol/drug screening and evaluation is mandatory so DWI judges can maintain a level of consistency in sentencing. They will use the results of your evaluation to make appropriate recommendations. If you have an issue with drugs and/or alcohol it MUST be addressed by the court.

2. The results of an evaluation can prove to be helpful to your lawyer for plea bargaining purposes. It can demonstrate that your conduct on the night of the arrest was merely a one time event, and not a pattern of alcohol abuse behavior.

3. The alcohol screening/evaluation is part of the DMV's IDP (Impaired Driver Program) and must be done to obtain a conditional driver's license/ privilege. The program's completion is predicated upon a follow through with any treatment recommendations made by the OASAS (Office of Alcohol and Substance Abuse Services) certified provider. They have an excellent website to locate providers in your area, just put New York OASAS into google.

My advice before having your alcohol screening/evaluation: 

1. Be prepared to answer questions about your drug and/or alcohol use.

Read through the MAST (Michigan Alcohol Screening Test) to have an idea of the type of questions that will be on the screening forms. Link for MAST is below:


Within the IDP program (7 weeks) there is an alcohol screening as a questionaire/form to determine if you need an evaluation/assessment by a provider. This is being eliminated by making an evaluation mandatory before the IDP.

2. Be prepared to provide a urine sample for a drug screen. 

NOTE: Drug screens are not drug tests. Screens are very general, fast, and inexpensive. They have a high sensitivity (show alot of false positives), and are not specific as to quality or type of drug. A drug test is very specific, and designed to qualify and quantify a certain drug. You may not have to provide a urine sample but why risk it. It is always better to expect to give a clean sample than to decline. I tell all my clients to avoid being around cannabis for at least four weeks prior to the test and other drugs for at least two weeks before the screen.

Many drugs both legal and illegal have a long half life (stay in your body for a long period of time). The way half life works is that every 7 days half the drug is left over after your use. After an additional 7 days half of the remaining half is left over- that is 1/4 left. After an additional 7 days, half of the remaining 1/4 is left- that is 1/8 of the original dose and so on. After 5 half lives 1/64 of the drug may be left- at this point it is likely that there will not be any clinical effect from the drug.

THC Stays in Your Body a LONG Time and Would Show Up on an Evaluation

This half life is dependent upon the frequency of the drug's usage, method of intake, length of usage, your tolerance to the drug, your fluid intake, your body size, your body fat, your metabolism, and the specific range that the drug testing uses to signify a “positive” for drug use. THC in particular is stored by the body in the fatty lipid tissue and are gradually released into the blood stream until cleared. For chronic users with a high body fat percentage, this process of elimination can take several weeks. Sometimes people on diets may be burning off fat, and releasing stored drugs (drugs stored in fat cells) into their urine.

NOTE: If the drug evaluator finds drugs in your system, especially illegal drugs then it must report to the court, the prosecutor, and the DMV. It will not look good to show the use of any substance that was NOT prescribed or illegal.

The table below gives a guide to detection periods for many commonly used drugs:

All Drugs Have an Approximate Time Period of Detection

Alcohol from 6–24 hours
Amphetamines 2–3 days
Barbituates 1 day to 3 weeks
Benzodiazepines 3–7 days
Cocaine 2–5 days
Euphorics (MDMA, Ecstasy) 1–3 days
Marijuana (THC) 7–30 days (mild use - moderate use - frequent/chronic use)
Steroids (anabolic) 14–30 days

Any prescription drugs not reported to the provider but that may show up in your urine will be suspect as drugs of abuse. Remember that second-hand cannabis smoke exposure can also cause you to fail a standard urine drug screen.

Some OTC (over the counter) medications can also trigger false positives on drug screens:

• Ibuprofen (Advil, Motrin) • Midol • Sudafed • Vicks Nasal Spray • Neosynephren • Ephedra and Ephedrine (often in diet products) • Vicks 44

If The DWI Evaluator Recommends Treatment it is MANDATORY

If you are determined to be a drug abuser (having drugs in your system that are unreported, unprescribed, and/or illegal) you will get a treatment recommendation of 3 to 12 months time. This is usually a twelve step based group and/or individual program with a frequency of 2-3 times per week.

The Recommended Treatment Program Includes Complete Abstinence 

This program is likely to include follow up drug screens, and an order to completely stay away from drugs and alcohol. Note: You are allowed to obtain one second opinion concerning your evaluation. This second evaluation is then the final one for the Court.

3. Be prepared to follow through on all recommended treatment, and evaluations because the Court is going to want proof of completion.

If you receive a CD (conditional discharge) from the Court this will be one of terms of that discharge. If you fail to meet the Court's conditions your case can be re-opened and your failure will be considered a violation of the Court's Order.

If your alcohol evaluation indicates a "no treatment recommended" that will often be helpful to avoid the prosecutor (Assistant District Attorney) recommending a term of probation as a condition of your final sentence. This report of No Treatment by an evaluator can also assist your attorney in getting a ADWI (Aggravated DWI) charge where your BAC was .18 or higher reduced to a "regular" DWI.

I hope that this article sheds some much needed light on the DWI alcohol evaluation process.

Newman and Cyr is a boutique law firm focusing on Traffic, Criminal, and DWI and DWAI drug defense in Upstate New York. If you would like a free consultation concerning your charges either call, email, or fill out the form on our website.



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