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| image courtesy of Marijuanacentral.com |
PRESENCE OF A METABOLITE ONLY
IN YOUR BLOOD
IS NOT ENOUGH TO CONVICT
UNDER DWAI DRUGS (VTL 1192.4)
IN NEW YORK!
DWAI Drugs (VTL 1192.4) cases are difficult. There are very "science-y" and require detailed analysis of the blood test result. The most common 1192.4 charge is based on marijuana consumption...
Delta-9-Tetrahydrocannibinol (THC) is the active psychoactive chemical compound in Marijuana. However, the drug can remain in your system, in some form or another, for a very long time...even up to 30 days or longer (if you are a frequent user).
After the psychoactive ingredient (THC) has been processed and metabolized by your body, a drug test will still indicate the presence of the metabolized version...THC-COOH (doesn't contain Delta-9).
Why does this matter?
If you are charged with DWAI (Driving While Ability Impaired by Drugs) in New York, then the police will require a blood test. A forensic crime lab in New York will test your blood via Headspace Gas Chromatography for the presence of any number of illicit and prescription substances...
A DWAI Drugs case often hinges on the blood test result. (unless you were subjected to a Drug Recognition Exam by a certified police DRE expert...a complicated topic for another post)
For a marijuana case... if the blood test result indicates the presence of DELTA-9 THC, then the prosecutor has a potentially strong case. However, if the blood test reveals only the metabolite of THC (i.e. THC-COOH), then the prosecutor likely has an insufficient case (and it should be argued as such by defense counsel).
In 1993/1994, two separate courts in New York determined that "the mere presence of metabolites in blood insufficient to prove controlled substance actually impaired the ability of defendant to drive." People v. Kahn 610 NYS 2d 701 (Nassau Co Ct, 1994) and People v. Mercurio NYLJ 8/30/93, p25 Col 5 (Suffolk Co. Ct). The important thing to note is that in BOTH of the above cases, there was also bad driving! Even when coupled with bad driving (weaving, etc) that would normally indicate impairment to some degree, both courts ruled based on the testimony of forensic toxicologists that the metabolites alone in the blood were not enough to find the defendants guilty of 1192.4.
Unfortunately, these cases were not decided by the New York Court of Appeals (the highest court of the state), so the issue could be further argued in the future in another Court. But based on what we know about the science behind drug consumption in 2015, it would fly in the face of logic to go backward on those cases. The very definition of "metabolite" means that your body has already processed the chemical... so the active effects should be over (i.e. no impaired driving).
Drugs are not quantified in New York for a DWAI drug case.
Unlike alcohol which is quantified by the percentage of Blood Alcohol Content (BAC) at 0.08 or higher, there is no quantifiable way that drug impairment is measured in New York. This makes drug DWAI cases harder because the prosecutor usually has no frame of reference as to how impaired you were...
If you are charged with a low BAC number in New York (close to 0.08% BAC), then a prosecutor may go easier on you than somebody who is Aggravated (over 0.18% BAC), They have a relative frame of reference to make that decision. The same cannot be said about DWAI drug cases... that makes it more difficult to argue on the defense side of things.
VTL 1192.4 cases are tough, but that doesn't mean that are indefensible. If you are charged with a DWAI drugs case, we highly recommend that you retain an experienced DWAI drug lawyer immediately. Time can be critical in demanding evidence in these cases.
If you have a questions about a DWAI drug charge, call us at 607-229-5184.
By Attorney Mike Cyr
www.ithacadwi.com
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Copyright Cyr & Associates 2015
