Saturday, February 4, 2017

Ithaca DWAI Drug lawyer: Elements of DWAI Drug driving defense in NY


DWAI Drugs cases in New York are no joke.  These types of cases present unique challenges that must be dealt with appropriately from start to finish.  In NY, the police can use blood or urine to prosecute somebody for a DWAI drug charge (since breath is an ineffective measuring tool to see what's actually in your blood stream).  


The most important case on DWAI drug charge analysis is People v. Kahn, 610 NYS 2d 701 (1994).  KAHN describes the specific elements of the DWAI drug charge and how each must be proved beyond a reasonable doubt in NY.  

These elements are broken down as follows (and each must be proved by Prosecutor): 

(1) The defendant ingested a drug.

(2) The drug ingested by the defendant is one proscribed by Public Health Law § 3306. (See, Vehicle and Traffic Law § 114-a.)

(3) After ingesting the drug, the defendant operated a motor vehicle. (See, Vehicle and Traffic Law § 125.)

(4) While operating his motor vehicle the defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug.

These elements may seem straight-forward, but they can be met fairly easily if the Defendant agrees to a blood test  (or if the drug is found on or near the Defendant when they're arrested).  The prosecution can also prove DWAI Drugs with a D.R.E. "Drug Recognition Evaluation" --which is a series of motor coordination tests given by a police officer with special training.

In KAHN, the Defendant was a guy who had traveled for several days from South Africa to New York.  He had taken a prescription medication called Dalmane aka Flurazepam (to help him sleep) on the flight.  He told the police he had taken the drug 2 days prior to driving.  He blew a breath test that was 0.00 BAC (no alcohol present), but he had some erratic driving and seemed out of it to police.  He provided a sample of his urine and it came back positive for benzodiazepin. 

The Defendant had a physician/toxicologist testify that the drug only lasts for 8-10 hours and has no effects on the person after that period.  They also testified that the dalmane gets broken down by the body into metabolites of benzodiazepin and stays in the body for up to 14 days... 

Basically, the KAHN prosecutor could prove 3 out of the 4 elements.   They proved that 1) defendant took dalmane, 2) dalmane was one of list of thousands of drugs on the health code list, 3) even though 48 hours had passed, defendant operated a car ... but they couldn't prove beyond a reasonable doubt that the dalmane impaired his ability to drive a car.

The toxicologist helped the case get dismissed by explaining that the dalmane would not be effective in the defendant's blood stream 2 days after taking it --and the benzodiazepin in his urine was explained by taking the drug up to 14 days prior.  The Court goes on to say that the only way to really know what's in somebody's blood is if you get a blood sample around the time of arrest.  

KAHN court says "To find criminal culpability upon the stricter standard of mere presence of a proscribed drug in the defendant's body, coupled with observations of the defendant's behavior, would, on these facts, fly in the face of generally accepted scientific fact within our medical community and, in our view, impermissibly strain the meaning of the statute."

In other words, without more proof of what was in the blood (not just the urine), it is not enough to convict on  VTL 1192.4.  In KAHN, the expert toxicologist witness for the defense made all the difference.  

DWAI Drug cases can be difficult to defend --but not impossible.

KAHN emphasizes that you have to examine each element individually in a DWAI Drugs case. It also shows the usefulness of having an expert witness testify on behalf of the Defendant in a blood or urine case. When dealing with scientific cases that involve blood, breath, or urine, knowing and understanding the science can be critical in getting a good outcome. Big words, medical terminology, and fancy sounding things like "drug recognition evaluation" need to be easily explained to a jury so that they don't get confused or caught up in the "impressive words" of a case and instead focus on what those things mean. Explaining things well can make all the difference in any case.

If you give a sample of your blood to police, we also need to ensure the defense preserves the right to have the sample independently tested --because the police forensics lab is not perfect and can make mistakes from time to time.  Getting a second opinion is rarely a bad thing (especially if you believe you were sober at the time of driving).

In conclusion, be smart about the drugs you put in your body prior to driving and make sure you understand the possible side effects you could experience.  If you get stopped and arrested for a DWAI Drug charge, our best advice is to retain a knowledgeable attorney as soon as you can.  Time is of the essence in DWAI Drug defense cases. 


Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.

If you have questions about a DWAI Drug charge, DWI, felony charge, misdemeanor charge or another violation in Ithaca, Cortland, Watkins Glen, Elmira, Seneca, Chemung, Yates, Steuben County or the surrounding counties of Upstate New York , give us a call, shoot us an email, or fill out the form on our website:



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DISCLAIMER: If you or a loved one is charged with a crime in NY, we strongly urge you to consult with a local, licensed criminal defense attorney to help lessen the possible negative outcomes of the charge--including the potential loss of your freedom. 

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