5 Nano grams is the new .08 BAC: Marijuana and Driving While High

Ithaca Pot Lovers, Meet The Pot Map, Remember Pot is Still Illegal Federally, from rolling stone.com

Many regular marijuana users have recently applauded states like Washington and Colorado on being progressive in passing liberal pot legislation. Yay! people can now smoke people legally (at least under state law) and /or get a medical certification to smoke for health reasons.

As they say, the other shoe has now fallen, now these same pot loving states have enacted the first marijuana while driving laws. These laws have a specific (per se) amount of the drug that charges DWI/DUI for THC. Pot is the number two most used drug while driving so this was a natural progression of sorts.

5 Nano grams of THC is the new .08 BAC, Is it a lot or a little?

THC reaches high levels (100s of nano grams) in majority of users within one hour of ingestion. The THC in the blood will level off to 2-3 nano grams after another two or three hours passes. But if we have chronic substance users tested, their blood levels are chronically high. Are these chronic users affected the same as novice users? Are they too impaired to drive at these blood levels? Blood testing for specific quantities of THC and then judging impairment based strictly upon a number is fraught with issues. Alcohol and pot are just not the same.

CNN Road Tests Chronic Pot Users vs. Novice Users vs. Baked Users

In February 2013 CNN did a "Smoke and Drive" Road Test (closed course) study with a medical marijuana patient, a chronic user, and a novice user. All three performed well on the road tests, as in safely. Watch the video here to judge the results for yourself:

http://www.youtube.com/watch?feature=player_embedded&v=dw1HavgoK9E

It was not until they got completely "baked"(their term) that road performance became dangerous. The main point being that the marijuana users could distinguish when they should not drive versus alcohol drinkers whose confidence increases with each drink. Alcohol tends to inflate one's sense of confidence and abilities. Being honest with yourself (when high) and conscious of what you can and can not or should not do is a good thing.

New York State Does Not Have a Specific Amount of THC (or any other drug)

NYS still does not have any quantified drug for DWI except .08 BAC for alcohol. Our DWAI (driving while ability impaired) Drugs is any degree of impairment, so having any amount in your blood, of any named drugs (there are 100s), and a demonstration of impairment is enough proof to convict.

Challenging these cases will rely upon the experts in toxicology, pharmacology, and pharmacokinetics. There is little to no agreement scientifically that any specific amount of a drug can determine a degree or level of impairment.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY 14850
http://www.ithacadwi.com

607-229-5184

New York DWI Hardship License Privileges

Getting Off a New York DWI

Well this is my 100th blog posting since I began my DWI blogging. Because I have taken a long summer haitus from writing I am filled with inspiration and ideas. I get calls all the time, just last week I got one of those 3 AM calls, yes, nothing like a 3 O'clock on a Saturday morning to shock your system... hello.. my daughter...was arrested... this was not the "should I take the breath test?" calls, it was the post DWI arrest now what? phone calls from a concerned parent.

I do my best to launch into explanation mode (hard to do half asleep) and tell her to have her daughter call me in the morning (Sunday)... I go back to sleep... my wife is very understanding thank G-d... 10 minutes later...another call..."I have a few more questions..." Meanwhile none of this is within the context of the hour, in other words, people sometimes expect me to be waiting by the phone and always ready, when it is necessary I am but sometimes things can wait.

Which brings me to my main point today, what is GETTING OFF,

in common parlance (as in parlez vous = you speak) means...

Not having any charges, or having them dismissed by the District Attorney or Judge, or being found not guilty of everything...

First, how common is this? Not common, but it can happen. If there is no PC (Probable Cause) for a car stop then all the "fruits" of that stop ie. the breath test are "poisoned" Attorneys call this the "fruit of the poisonous tree." PC in New York is a legitimate reason for a stop, a factual traffic violation. We can also raise issues concerning PC to make an arrest but this is usually a small hurdle for the Police to surmount with the stop cop talking about odor of alcohol, slurring of speech, bloodshot eyes, etc. Remember that the DWI common law charge, VTL 1192 (3) is based on the OPINION! of a police officer.

Second, District Attorneys make offers but usually do not let people completely OFF of all charges. It is a ridiculous fantasy. It bothers me when people call me stating that a lawyer or law firm "promised" and/or "guaranteed" them a particular result. It is unethical and unprofessional to ensure a result. I make reasonable predictions and show usual options but to do more in the initial stages (without all the paperwork, police reports, breath test records, etc.) is practically impossible. My promise is to always do my best. I had one attorney locally promise to get a son's client OFF for $5,000 on a 0.19 Aggravated DWI. I told her without any discovery, without a suppression hearing, and without a trial this was highly unlikely. But people want so badly to believe in a FANTASY. Maybe it's human nature, but if it sounds too good to be true, it probably is BS.

Third, the REALITY in this particular situation is that a Judge cannot accept a plea to reduce a Aggravated DWI (DWI per se with a BAC (blood alcohol concentration) of 0.18 or more) to a DWAI (Driving While Ability Impaired), a traffic offense, without strong reasons. To further believe that a Judge or District Attorney would dismiss the charges outright would equate with winning the lottery or being struck by lighting.

Fourth, the big win in New York State is a reduction to a DWAI because of two reasons:

1. the proof required is "any extent of impairment," a small burden of proof compared to intoxication (DWI, which requires mental and physical incapacity (to a substantial extent) to operate an automobile as a reasonably prudent driver)

2. since DWAI is a traffic offense you get a bench (judge) trial, no jury, and many judges feel that this outcome is more than fair and just compared to the DWI charges.

So please exercise your RIGHT to not accept anything blindly, and to be skeptical of anyone offering fast, easy, and cheap solutions. A great analogy is that almost all of the contestants on the show "The Biggest Loser" including the "winners" put all their weight back in the months after the show was over. THE REALITY: Long term "healthy" weight loss requires a lifetime of work and lifestyle changes it is not going to be accomplished with a short term FANTASY program.

So many things to talk about for September, 2010:

1. We have a new ignition interlock law (effective August 15, 2010), and IIDs have many issues and the implementation of them (monitoring) has been a nightmare for many counties.

2. We have new forensic studies that make our "one" breath test state even more suspect and in the words of my kids "sketchy."

3. New York Law is being challenged. Specifically the admission of the breath test calibration and simulation solutions records into evidence at DWI trials absent their certifiers appearance at trial. These are sixth amendment confrontation clause issues that have been raised nationally by the Supreme Court, and are now being raised locally by attorneys like myself.

So we are back or off to a new start, as a new school/college term is underway, and we are all learning.

Understanding the New York DWI PSI (Pre-Sentence Investigation)

There is not much written online concerning the process surrounding New York State's system of determining who receives a sentence of probation for a misdemeanor DWI. It is a mystery to many. I believe as a DWI defense lawyer that uncertainty is a nightmare for those going through this process. In this blog, and the next I hope to explain the procedure in simple terms.

First, the vast majority of DWI cases as well as other criminal cases in this state are negotiated with pleas. The cases that go to hearings and trials have issues that need to be addressed by either Judges and/or Juries.

If the case is resolved with a negotiated plea then the District Attorney may or may not agree (as part of the plea agreement) to waive a PSI (Pre-Sentence Investigation). What that means is that the District Attorney may or may not be seeking a term of Probation as part of the final sentencing of the Court. He may be seeking probation for your DWI because of the results of your drug/alcohol evaluation, the amount of your BAC (Blood Alcohol Concentration) at time of your arrest, a DWI involving (property or people) damages, prior criminal history, prior history of drugs and/or alcohol abuse, your age, and driving history.

For all New York State DWI Misdemeanors Probation Terms are for Three Years.

NOTE: Probation could be terminated early (less than a three year term) by your attorney filing a Motion with the Judge after a period of "good" probation. "Good" meaning a period of time in which you have no problems, no committed offenses, and/or crimes, involving the use of drugs, and/or alcohol.

A PSI is where you are interviewed by the Probation Department (usually of the County's Probation Office in the city in which you live) to determine an appropriate sentence for the crime being pled to. NOTE: If you are from Out of State, Probation can not be recommended by the department because it can not be transferred to another state or country so it unlikely that probation will be part of sentencing. Unfortunately, since the Judge and DA can not give a term of probation they may seek some jail time.

Now the Court (The Judge) can still seek a PSI (Pre-Sentence Investigation) before rendering it's sentence because ultimately the Judge must agree to "the deal" struck between both sides (Counsel for the defendant as well as Counsel for the State of New York). This can add many weeks to the process between making a deal, and having a final resolution of the matter. Sometimes PSIs (and their final report to the Court) can take four to six weeks even though the actual interview usually takes less than an hour.

The way that it works is if after a final disposition (case outcome) by negotiated plea bargain if can go one of two ways:

If the Judge and DA both agree to a CD (Conditional Discharge) then there is NO Probation and no need for a PSI.

OR

If a PSI is ordered by the Judge then Probation department will contact the defendant and set up an interview. This is a "this is your life" type of interview and review. Probation is usually for people who need supervision. Supervision normally entails being watched over with random screenings and tests for the use of drugs and alcohol. It is also likely to include some type of drug counseling/rehab/treatment program and/or mental health counseling.

In my next blog I will detail what goes into a PSI report, and how a probation determination is made.

New York DWI Windows of Opportunity

Funny how the things you think about can relate to so many other things. This morning I remarked to my wife how the pear I was about to eat had such a brief period of perfect ripeness. No, I'm not high, but I do get these moments of insight. I have found that pears unlike apples are good, crisp, and delicious (not mealy) for only a few days. Cut them too soon and they are hard and bland. 

Then it hit me, DWI cases also have temporary windows of opportunity. The clock begins to run on every case when you are first arraigned with counsel. This is where you enter your plea of not guilty, and are formally told of the charges against you, by The People (of the State of New York).

Once you are arraigned your attorney must NOW make a demand for Discovery, and for a Bill of Particulars. This is the government's evidence against you (how they plan on proving their case). 

The District Attorney now has 15 days with which to comply with that demand. In addition, you have ONLY 45 days from this first date (the date of the initial appearance) to make, and to file any pre-trial motions. Motions to suppress evidence, Motions to suppress statements, Motions to Contest the use of the refusal against you, Motions to state that the stop and/or the arrest were unconstitutional.

Does your attorney serve the demand upon the District Attorney in Court (at the Initial Appearance)? 

Does your attorney wait? A few days? A few weeks? Does he send a letter? 

My philosophy is that:

1. The ADAs (Assistant District Attorneys) have a lot more cases (files) than I do. 

2. The government employees are typically overworked, and can not possibly know each and every file. 

3. I have more time to spend and think about fewer cases (because I take fewer cases).

4. I have more time to demand, gather, interpret, and study the evidence.

5. I have an advantage IF I use time as an opportunity.

6. There is now a greater likelihood that I will better understand the facts and the case.

7. The sooner I begin, the better my defense (s) to the evidence.

Attorneys are on strict timelines (deadlines). Meaning that if you DO NOT file motions in a timely manner you will lose your opportunity (your chance) to contest and argue them at pre-trial hearings. Too bad, so sad or if you snooze you lose. 

Pre-trial hearings (suppression hearings) are really where cases are truly won or lost. They are opportunities (G-d I love that word) where a lawyer can truly test his defense theories, size up the police officer, and create narrow and focused points of attack. 

So much like seizing that opportunity to eat a piece of fruit when it is perfectly ripe I believe it is vitally important to strike early, strike first, and strike hard with DWI cases.