New York DWAI (driving while ability impaired) by Prescription Drugs

Many people are prescribed and take prescription medication. Just because you are "ON" a prescription drug doesn't automatically make you impaired by that drug.

Ithaca DWI Lawyer: Cross Faded Driving Dangers

Some of the funniest internet stuff involves cats?

Hanging out with my adult kids teaches me stuff. Some stuff I know about but not always the names of stuff. Seems like there are many more college drinking games these days or maybe I just don't remember. Mixing drugs has been around forever but calling it being "cross faded" has not. Marijuana plus alcohol = cross faded. Technically cross faded means drunk and high, be it pills, grass, or coke is still cross faded. In many cases this leads to puking or at the very least being sick.


How dangerous is it to drive while cross faded?

Is it any less dangerous for the chronic THC user?

Does alcohol increase the effects of THC?

Ithaca DWAI Lawyer: Stoned Driving is Different State to State

This country is at a crossroads in many respects. We are experiencing a dramatic liberalization of marijuana laws amongst the majority of states. I bump into more and more people, young and old who are smoking pot. It's not just for kids anymore, if it ever was?

But the confusion is only beginning with understanding what the law actually is and what it means when it comes to Stoned Driving? When is high, too high to drive? Where are the lines or thresholds for marijuana use from state to state? In New York State when am I too high to drive a car? Does New York prove DWAI drugs by blood or urine?

Ithaca DWI Lawyer: DWI Probation By The Numbers

Some people who are arrested for a New York DWI are placed on community Probation Supervision. Whether an adult who commits a crime needs to be supervised is the real question? Some people who are convicted of DWI or a DWAI drugs absolutely need some form of monitoring post-sentencing. Now whether the monitoring is just having an IID (ignition interlock device) installed in their car or whether they need an overseer for rehabilitation and treatment for a drug/alcohol problem are two ends of the spectrum.

How does a county probation department make that determination for a DWI or DWAI drugs offense? Where does the decision for New York DWI probation truly begin?

Ithaca DWI Lawyer: Can Your Depression Look Like Impaired Driving?

Antidepressants are CNS Drugs
Depressed People May Look Impaired 

It's a funny thing about depression, it has many of the same symptoms of DWAI drugs (driving while your ability is impaired). Yes it's true, many of the same signs and symptoms of untreated or even under treated depression can be viewed as a driver under the influence (impaired by) of drugs.

If you get pulled over while on your antidepressant medication can the officer charge you with DWAI drugs? Does that really mean you are driving while impaired in New York State?

Ithaca DWI Lawyer: Recreational versus Therapeutic Drug Dose and DWAI

DRE = Drug Recognition Evaluator

I just came back from Tucson, AZ where I attended a DUI conference on DWI and DWAI drugs cases. One of the main speakers Dr. Fran Gengo (University of Buffalo) spoke on DRE (drug recognition evaluation) as well as Driving While Impaired by drugs. Now Dr. Gengo is a pharmacologist and understands toxicology at a high level.

How drugs are dosed, metabolized by the body, and can potentially impair a driver is complicated stuff. Now the DRE and the drug recognition evaluations used by the police have many issues. Can a law enforcement DRE officer using a DRE (yes, the person and the exam) tell you are New York DWAI drugs?

Ithaca DWI Lawyer: Warns New York Students That Get High Don't Get Stopped in PA

College Memories

New York State and Pennsylvania are places of great similarity and contrast. I have practiced DWI defense in both, and the laws, rules, and procedures are night and day. For those that smoke pot in New York the DWAI drugs "driving while impaired by a drug" driving charge, and the required proof for that offense morphs into something far different and ultimately more dangerous just below us in Pennsylvania.

Ithaca DWI Lawyer: What if Atticus Finch was a DWI Lawyer?

from Pastemagazine, Good Old Atticus 

Atticus Finch is the fictional lawyer in To Kill a Mockingbird. I'd like to think we as present day DWI defense attorneys could learn a few things from this amazing man of fiction.

It all comes down to understanding yourself, and others.

Atticus has a young daughter, Scout. Like most dads he wants give his daughter a real life education not just an academic one. One line from the movie is most riveting:

If you can learn a simple trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it

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.

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607-229-5184

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My 420th Blog Post: New York Police: THC Urine Testing versus THC Blood Testing

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.

Lawrence Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

http://www.ithacadwi.com