Practical ideas, and information about defending New York DWI, criminal charges, and traffic violations. Winning strategies from an Ithaca DWI lawyer's vantage point.
New York State has a special set of laws and regulations for marijuana. In fact, a small quantity of pot is merely a violation in New York State. It's called UPM (unlawful possession of marijuana) under NY penal law section 220.05 Any amount from resin (yes resin in a pot) to 25 grams is still UPM in New York.
But be mindful that even resin Unlawful Possession can still carry many collateral consequences outside of court like ineligibility for Federal students grants, loans, and aid. What's far worse than garden day variety weed is concentrated marijuana.
How does New York define concentrated cannabis and how is that different than being charged with a Penal law section 221.05 UPM?
Lawful Police stops are usually for either an equipment violation or a moving violation. Once that occurs,
The police can do the following after the lawful stop of a car:
1. Shine a light into the interior of the vehicle, But they may not break the window line or go into the car. People v. Cruz, 34 NY2d 362
2. They can open any and all doors of the vehicle. People v. David, 56 NY2d 698
3. They can order the driver to get out or to stay put. People v. Robinson, 74 NY2d 773
4. They can request information: license, registration, and insurance. People v. Banks, 85 NY2d 558
Any intrusion that goes beyond that requires justification and reasons. Usually this will be the sight of drugs, the sight of weapons, or the smell of marijuana. Once any of those things occur then the passenger and the driver can be legally subject to more invasive search (frisk), and seizure (longer detention).
Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.
My daughter is about to move to Colorado. Our nest is down to one kid from four. I think the legalization of marijuana is going to bring new issues and challenges as the country deals with increased numbers of "THC DUI/DWAI drugs" cases.
These new Colorado PSAs are really clever, and funny. I think the marketers really thought about their target audience before throwing them together.
Pot is a Major Mental Distractor
The PSAs are so true because when you are that high, as in baked, and I have been that high (yes, I inhaled and deeply) your brain/mind is so far away from the reality of your situation. That is why unless you are seasoned THC user (I have met some) your ability to function normally is greatly impaired.
From My Basement in Brooklyn to College
I experimented with pot as a kid. I loved to listen to music (Led Zeppelin, Yes, ELO, Hendrix) in my basement and relax. Not my favorite drug (I'm more of a caffeine fan) but it was fun. When I first graduated Chiropractic college (1986) we had a big final party. They served these funky brownies. It took awhile for me to feel anything, so I probably ate one too many. Then it hit me like a ton of bricks. This was my worst ever THC experience. The high went on and on, for more hours than I would have enjoyed. I was scared that I would never ever come down. Anyway, indulge but please don't drive.
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 480 informative videos on my youtube channel.
Ithaca is NOT GORGES It's Pipes, Bongs, Shishas, and Hemp
The prevalence of marijuana use continues to increase nationally not just locally. Whether this use pattern is due to it's increasing "legalization" or it's increasing "medicinal value" or it's new found increasing social acceptance is unclear.
Both directly and indirectly marijuana is assuming a new role as the second most used drug after alcohol. In the not too distant future I believe that pot will be easy to obtain, legal, prescribed by doctors, marketed and advertised both recreationally and in a host of products.
In my Ithaca legal practice I am seeing more DWI and DWAI cases that are involving the combination of alcohol and marijuana. From my perspective this is more common with the college crowd. This correlates with all the recent studies which indicate the most common age group to combine drugs and alcohol with driving is highest in those in the 19 - 20 age group.
The Green Dragon from weed forums.com
THE PROBLEM WITH COMBINING:THC and Alcohol
A study from the Netherlands (Dr. James O'Hanlon) examined the effects of THC upon driving in combination with alcohol. The conclusions reached were that one drug (THC) potentiated (increased) the effects of the other (alcohol).
1. .04 BAC alcohol plus low dose of THC = the impairment effects of .09 BAC
2. .04 BAC alcohol plus moderate dose THC = the impairment effects of .12 BAC
3. .04 BAC alcohol plus high dose THC = the subject could not even stand up (was falling down)
.04 BAC = approximately 2 drinks (2 shots = 2 regular beers = 6 - 8 oz. of wine)
The impairment effects from the combination of THC plus this low level of alcohol lingered for 3 hours. Alcohol at the .04 BAC level should dissipate back to zero within this same time period.
In fact, .04 BAC alcohol is not even impaired in NYS (.06 BAC to .07 BAC is legal impairment).
KEY TAKEAWAY: Choosing to drive when combining marijuana and alcohol can be much more dangerous than alcohol or marijuana alone. The impairment effects are far greater, and the effects last way longer than either by themselves.
Don't ride your car AFTER you ride the Green Dragon!
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.
Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 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. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. 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.
Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
I just read an interesting article on how Colorado and Washington state are "tailoring" their new pot laws to minimize harms. Tailoring means an adjustment here, and maybe a narrowing of the where, when, how, and how much. Scope of law is important, we all need limits, especially to behavior that could be potentially harmful to ourselves and others.
Number one on their agenda is there will be NO COFFEE SHOPS! ie. coffee = weed
Just like doctors who take a Hippocratic oath to first do no harm, the legislators must create these new cannabis law to minimize dangers to people and society. What the article failed to hone in on IMHO is that the real reason for NO coffee shops was to reduce the need to drive to and from a shop.
Rule Number ONE: Reduce Harms with any new law
That is why these states have also passed the first marijuana "per se" regulation. Per Se in latin means "in itself." Or just by itself, with nothing else needed. In other words, just a specific amount and you are legally too impaired to drive/operate a car/boat/snowmobile/truck.
The new amount is 5 nanograms. It is the new .08 BAC for alcohol. BAC = blood alcohol concentration. Nationwide, if you have .08 BAC while driving, you are "per se" drunk (intoxicated).
Alcohol Served in Bars, Taverns, and Restaurants Can Promote Higher BAC DUI/DWI I see a direct correlation (in my DWI/DWAI drugs practice) with the BAC numbers of my clients and the number of parties, bars, and places they frequented prior to their DWI stop. It makes sense, more places to drink and consume anything = higher amount of everything (generally).
I think we are moving in a good direction with the "decriminalization and legalization" of marijuana. It is less harmful than alcohol on a lot of levels. We are never going to completely eliminate drug use. Human beings are pleasure seekers. Regulating and minimizing harms should be government's goal and not just strict punishment.
NOTE:
Remember, New York State DWAI drugs (a misdemeanor) means almost any drug (medical/legal/illegal) that has impaired your driving to any extent. This includes marijuana. So don't smoke and drive, it is as bad as drinking and driving.
Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law
This is my 420th Post so I figured what better time to discuss THC and DWAI drugs.
I live in Ithaca, NY which has it's far share of "head" shops. Stores which cater to the smokers of marijuana. Pipes, bongs, roach clips, and assorted paraphernalia (gotta love that word) to use and enjoy the plant of their choosing. Some offer books on growing techniques and hydroponic set ups all in the name of good gardening.
In my younger days, or should I say as a teen I worked in a head shop in Brooklyn, NY that was located in Kings Plaza. It was a store with multiple vendors all sharing space and an occasional joint. There was a leather smith, a nick-nack area, and a household goods section. Many of the people working there would get high on breaks, maybe they would be considered chronic users. In those days, they were stoners, people who loved to get stoned (like all day). I partook on occasion, I did inhale, and the Led Zeppelin sounded that much better.
Today I defend people charged with use, possession, and abuse (bad use) of marijuana. Whether you have a reason to smoke or not, it is illegal in New York. Moreso, driving while under the influence of drugs of any type is a bad decision. Better to take that cab or call everyone you know. Impaired driving, buzzed driving, stoned driving, and drugged driving can all have fatal consequences.
Which brings me to today's topic, sometimes law enforcement will ask you for a body sample to check for drugs (ie. marijuana). Marijuana is the most commonly used substance after alcohol in upstate NY.
When can they legally request a sample of your breath, blood, urine, and/or salvia to check for THC?
After the lawful stop of a car a request can be made if they think you are driving due to an impairment from pot. If they smell it in the car, or on your person, or find some on you or in the car or in a handbag in the car or a pipe with resin (residue) it will lead them to think you are driving while impaired by marijuana.
Is urine testing for impairment by drugs (like THC) conclusive and accurate?
When you test someone's Urine you are testing for waste products of a drug's breakdown called metabolites not active substances. Urinalysis can not detect the presence of any ACTIVE THC.
Urine tests are cheap and inaccurate indicators of impairment, yet only 90% of all United States drug testing tests urine. Finding THC metabolites in the urine ONLY means one thing, it only indicates
prior THC exposure. The detection time is usually long past the window of impairment. Is blood testing for impairment by THC conclusive and accurate? Even if the police test your blood for ACTIVE THC (It is difficult to establish a relationship between
a person's THC blood or plasma concentration and their performance impairing effects). Impairment by THC is more complicated than just showing or proving a particular level in the blood. Many additional factors need to be taken into consideration. Was this a novice user or a chronic user? What was the level at the time of operation? How many hours have past since peaked THC levels? Was this a level that caused impairment in this individual? Marijuana use "can" impair driving at certain dosages, and at specific times after smoking.
Marijuana has
been proven to impair your ability to drive for up to 3 hours after smoking. The immediate and subsequent affects to users with eaten marijuana (taken in food) are different.
They affects of cannabis on driving are:
Decreased ability to control a car's handling and performance, increased (delayed) reaction times, impaired ability to estimate time and distance,
inability to maintain headway, sleepiness, incoordination of small and large muscles, and impaired sustained vigilance (focus and concentration to task).
If you are charged with DWAID (driving while ability impaired drugs) don't just assume it's all cut and dried. It is more complicated than just did you inhale.
