Understanding DWAI Blood Results for Marijuana/Cannabis/Pot/THC

This is a common story. Car gets pulled over for speeding or erratic driving. Sometimes the car is stopped for a too long a time at a stop sign AND as the joke goes, waiting for it to turn green. Anyway, the police stop the car, window comes down and whew, the odor, the smell of weed permeates the air. Or the driver says, "I'm high as f...k."

I don't need to make shit up anymore. So many crazy stories of drugs, cars, parties, people, and events too vague or hazy to fully remember. The criminal charge of DWAI drugs NYS VTL 1192 (4) in this and many cases due to marijuana, the drug THC.

THC is Active as Delta-9

Tetrahydrocannibinol begins as Delta- 9 THC as the active substance in the blood. The blood stream after smoking and/or ingesting rises to it's peak of 100 to 200 or more nanograms. In Colorado only 5 nano grams in the blood is "per se" impairment. It falls from the hundreds to single digits after 3 or so hours.

THC Breaks Down Into Metabolites 

THC first breaks down into hydroxy THC. This still has effects upon the body and the mind for many hours after the initial active substance has dissipated. In the ensuing hours, days, weeks we then have carboxy THC.

THE Bottom Line On Blood Tests for DWAI Drugs (THC)

If the DA's blood results do not show ACTIVE DELTA 9 THC then they have a weak case of DWAI drugs UNLESS they have found drugs on your person, or have performed a DRE (drug recognition evaluation).

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

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newman.lawrence@gmail.com
607-229-5184

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Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Ithaca DWAI Lawyer The Power of Just Three Little Words = To Any Extent

Judges charge juries. Judges can also charge themselves. Yes, in a bench (only a judge with no jury) trial the judge must give themself directions and instructions. It sounds silly but it is true.

What is Charging in Criminal Cases?

Charging means giving (providing) legal instructions. Judges give jury instructions aka charges to the jury. These explain the standards to be employed in making their decision. They must give legal definitions and sometimes clarity to the law to be followed in each specific criminal case. Often these directions are confusing, difficult to follow, and in need of repeating. It is common for juries to ask for more information and explanation.

Where Do These Instructions Come From?

Well Jury instructions or directions come from a number of places. Before juries (or judges) charge the jury (or themselves) the prosecutor and the defense attorney will discuss them with the judge. Sometimes the directions are changed, are argued about, and then some agreed to and others thrown out. The art and science of drafting (writing) jury instructions should never be overlooked by an attorney.

One of the most common references in New York State for jury instructions come from the OCA. The Office of Court Administration has a set of standardized jury instructions for DWI and DWAI and DWAI drugs.

Words can have a lot of power and control
from presenting-yourself.com

Why Do I Believe the Difference Between Drugs and Alcohol Makes the Jury Charge UNFAIR?

In defining the New York charge of driving while ability impaired by drugs VTL 1194 (4) the OCA uses the same instruction as the one for impairment by alcohol. I believe this is a rather low and unfair standard. Because impairment by Alcohol is a violation (non-criminal) level offense WHILE impairment by Drugs is a misdemeanor (criminal) level offense. To give a violation standard to criminal level offense creates an uneven playing field between defense and the prosecution of these charges.

The OCA standard jury instruction for NYS impairment by drugs and/or alcohol:

In order to drive safely, a driver is expected at all times to be able to think clearly and act carefully. If, by  reason of the consumption of drugs (or alcohol) a driver loses TO ANY EXTENT  control of his mental faculties and his physical responses, our law considers that he has operated his vehicle while under the influence of a drug or drugs.

TO ANY EXTENT MEANS JUST THAT = TO "ANY" EXTENT

What Does the DWAI law REQUIRE?

According to the law (of the state of New York), a person's ability to drive safely is impaired by the use of drugs when, by voluntarily consuming drugs, he has actually impaired, TO ANY EXTENT, the physical and mental abilities which he is expected to possess in order to operate his vehicle as a reasonable and prudent driver. The law DOES NOT REQUIRE PROOF that such ability to operate his vehicle has been SUBSTANTIALLY AFFECTED (by drugs and/or alcohol). The PROOF need only show that such ability to drive safely has been affected "TO ANY EXTENT."


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

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 490 informative videos on my youtube channel.

Ithaca DWI Lawyer The Defense of Drinking AFTER Driving

The DWI defense of drinking after driving

There are many defenses to a DWI, this video highlights the defense of drinking after the driving.
With a one car accident, unwitnessed driving, and with no statements by the accused the police are going to have to combat this defense with more than just their assumptions.

Understanding New York DWI Mandatory Alcohol Evaluations: Part I

In November 2006 the New York State legislature stated that ALL alcohol evaluations and screenings for DWI cases must be performed by OASAS certified evaluators. OASAS stands for Office of Alcohol and Substance Abuse Services. You can google OASAS to find a certified evaluator and/or treatment provider in your county. Their website is very informative, and fairly easy to navigate.

Legally you must have a "screening" for alcohol abuse/dependency within 30 days of your initial appearance if you had a BAC (blood alcohol concentration) of .12 or higher on your chemical breath test. A screening is merely a written test, it could even be a true/false test.

The next step up in the process so to speak is an "evaluation" for alcohol abuse/dependency within 30 days of the initial appearance if you had a BAC (blood alcohol concentration) of .15 or higher on your chemical breath test. Some evaluators take one long session to perform an evaluation, while some could take up to four sessions to make an evaluation. Cost of these sessions runs about $80 to $90 per session. So one long eval might cost around $175 or four might cost up to $400. An evaluation is an "interview" with a counselor, and could (may or may not depending upon the evaluator) include a urine screen (NOTE: urine tests check for specific drugs while urine screens are general) for drugs. It is also common for the counselor to obtain "collaterals" from you. A collateral is contact information about people who know you and have seen your drinking. These people may or may not be contacted to confirm what you tell the evaluator. The theory is that people with drug/alcohol problems lie, and therefore these collateral sources would be a potential barometer of your truthfulness and/or sobriety.

The next step for the evaluator is to determine whether you are an alcohol/drug abuser and have an abuse diagnosis or you are chemical (alcohol/drug) dependent. This is a critical determination, and should never be taken lightly by anyone.

My problem (I have a great many issues with the process) with these evaluations is that they can be highly subjective. The evaluators opinions carry a lot of weight for the Court as well as the prosecutor and under the circumstances of an interview or interviews they (the evaluators) may not get the full ie. complete picture. I had one client who went to an evaluation and the evaluator decided on a year's worth of treatment for dependency because the client stated he drank more than 5 drinks at one time. BTW 5 drinks for a man or 4 drinks for a woman at one time is classified as a binge drinker. BINGE is BAD in the world of evals. Imagine if you will a year's worth of 2 to 3 times a week standing up and saying, "hello, my name is Bob and I'm an alcoholic," and you may begin to see the grim picture if you are truly a person without a problem. These sessions would be costly in terms of time and money but more than that unjust in my opinion.

In my next blog I'll discuss the differences between how counselors make an abuse diagnosis versus a dependency diagnosis in more detail.