Driving While Ability Impaired by Drugs

Driving while Ability Impaired by Drugs is a crime under the New York State Vehicle and Traffic Law. See § 1192(4).

Unlike in other states, there is no catchall provision in New York State which allows the police to charge someone for driving while impaired by either alcohol or drugs. Accordingly, at the time of arrest, the police must decide if they believe a driver is impaired by alcohol or drugs and charge accordingly.

In order to convict a defendant for driving while ability impaired by drugs, the People must prove:

1. That the defendant ingested a drug;
2. That the drug ingested is one listed under Public Health Law 3306;
3. That the defendant drove a car after ingesting the drug; and
4. That the defendant’s ability to drive was impaired by the drug which he took.

The People must prove not only that a driver ingested a drug but also that doing so impaired his ability to drive.

However, in prosecutions for driving while ability impaired by drugs, the district attorney’s burden of proof is much lower than it is for driving under the influence of alcohol.

In order to be found guilty of driving while ability impaired by drugs the People must prove only that the driver was impaired to any extent. This is a much lower standard than DWI (for driving while ability impaired by alcohol).

The big difference between DUI (based upon consumption of alcohol) and DWAI (by ingestion of drugs) is that New York Courts recognize .08% of BAC as proof of intoxication by alcohol.

Such a blood alcohol content percentile can be established with exactness by a scientific analysis of the alcohol content in a driver’s blood, breath or urine.

Impairment by drugs are much more subjective in nature and open to debate.

There is no numerical percentile (like a threshold of .08% for BAC) as there is with alcohol.

Moreover, it is a crime to drive while impaired by drugs even if the person was taking the offending drugs pursuant to a doctor’s legal prescription and even if the drugs themselves were otherwise legal to take.

Some of the common drugs for which a driver can be charged with driving while ability impaired by drugs under NYS VTL 1192 (4), and which are therefore punishable under this section include, without limitation:

1. Anti-anxiety drugs such as:
   1. Xanax (alprazolam);
   2. Diazepam (valium);
   3. Lorazepam (ativan);
   4. Clonazepam (klonopin); and
2. Opioids (like oxycodone);
3. Barbiturates (like phenobarbital);
4. Anabolic steroids (like testosterone or nandrolone);
5. Stimulants (like adderall or ritalin); and
6. Illegal “street drugs” (like heroin, cocaine, or morphine).

A majority of the cases in New York State for driving while ability impaired by drugs arise out of an officer’s subjective belief that a person smoked or ate marijuana or cannabis prior to driving.

The elements of proof related to cases brought for ingestion or smoking marijuana are often easier for the police to prove because the distinctive burnt marijuana smell is often still present in the car at the time of the DWAI arrest and because marijuana requires paraphernalia for smoking.

In fact, courts have held that the smell of marijuana smoke, without more, is sufficient to provide trained and experienced police officers with probable cause to search an entire car.

New York Criminal Courts require that the intoxicating drug be voluntarily consumed.

Therefore, it is a complete defense (to charge of driving while ability impaired by drugs) that the person took the drug accidentally.

It is also a defense to a DWAI drugs related charge that the defendant accidentally took a much larger quantity of the drug than prescribed by a doctor (where taking the normal dose of the drug would not have resulted in impairment).

In order to be found guilty of DWAI drugs, a defendant must be examined by a drug recognition expert (DRE) who has completed at least seventy-two hours of class training.

A person’s observation or analysis by a regular untrained police officer will not be sufficient for a conviction of driving while ability impaired by drugs.

If you have been charged with driving while ability impaired by drugs, please contact Stewart A. McMillan immediately at (914) 358-4326 or on his 24 hour cell phone at (917) 538-5016 or e-mail him at stewart@mcmlawyer.com.