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

ELEMENTS OF DEFENDING A DWAI DRUGS CASE IN NEW YORK VTL 1192.4

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).  

WHAT ARE THE ELEMENTS OF A DWAI DRUGS CASE IN NEW YORK? (VTL 1192.4)

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. 

BY MIKE CYR

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:

607-229-5184

NEWMAN & CYR

Or find us online! 

www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

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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*Educational Purposes only. Copyright 2017 NEWMAN & CYR PLLC.

Ithaca Watkins Glen DWAI Drug attorney: When can you get a RESTRICTED USE License in New York?

Ithaca & Watkins Glen DWAI Drug defense attorney:

WHEN CAN YOU GET A RESTRICTED USE LICENSE 

in New York?

In this video, Attorney Larry Newman, an Ithaca / Watkins Glen DWAI Drug attorney, explains when you can obtain a RESTRICTED USE License from the New York Department of Motor Vehicles. 

In general, there are three specific situations:

1.  If you are suspended due to getting 3 speeding tickets in 18 months  in NY

2.  11 points on license in 18 months

3.  Conviction under VTL 1192.4 Driving While Ability Impaired By Drugs 

It is important to remember that the above-situations are for a RESTRICTED USE license only.  A "Conditional License" is ONLY for alcohol-related driving offenses i.e. DWI. 

If you have questions about a DWI or DWAI Drugs case, call us:  607-229-5184

Or FInd us online!   www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

*Newman & Cyr is a boutique law firm in the Finger Lakes region of upstate New York focusing on DWI defense.

By NEWMAN & CYR, PLLC
Copyright 2016

DISCLAIMER: If you or a loved one is charged with a crime or ticket, we strongly urge you to consult with a local, licensed criminal defense attorney to help protect you from any possible punishment--including the loss of your freedom.

Educational use Only.

Ithaca Watkins Glen DWI lawyer: New York State's Two D.R.E.s -the Evaluation and the Evaluator

Schuyler County Courthouse - Watkins Glen, NY -
Newman & Cyr, The DWI Attorneys

New York State's TWO D.R.E.'s -

The Evaluation and the Evaluator

If you are charged with the criminal offense of New York DWAI drugs (VTL 1192 (4)) then they are alleging that you operated a motor vehicle or motorcycle while impaired by a drug. The government can prove their case against you in a number of ways.

The First Step in DWAI Drugs is Them Proving You are On a Drug

If you say nothing about drugs and they find no drugs on you they can still prove drug use by either a blood test or by a DRE (drug recognition evaluation) done by a DRE (drug recognition evaluator). This is recognized by the NYS courts as valid proof of you being on a drug.

DREs are Specially Trained Police Officers, Troopers, Deputies 

It is not easy being a DRE because it is a long process of hundreds of hours on top of all of their prior DWI training. The few officers that sign up must also be recertified every year, meaning they must do a certain number of evaluations to stay certified. 

As of May 2016 Tompkins county has only two DREs. They are both excellent police officers from smaller police departments. They would need to be called in to do a DRE on someone who is arrested for DWAI drugs. This is because regularly trained DWI officers can't do DREs nor can they testify to someone being under the influence of a specific drug category.

The DRE (drug recognition evaluator) as Professional Recognizer

The Recognition Evaluator presents his/herself as an expert of sorts. They are, in fact, certified to "recognize" use by putting you through a barrage of testing and procedures. Some of the tests performed by the DRE are checking for pupil size, blood pressure, heart pulse rate, and the Romberg test. These tests are actually part and parcel of most medical examinations. 

DREs Use Medical Testing to Recognize Drug Use

The problem is that medical testing is designed to be used by nurses, doctors, physical therapists, and physicians assistants to aid in helping people with their health problems. The intended medical goal under those circumstances is to come up with physical diagnoses to injuries or disease. 

The Same Tests with a Different Purpose

The intended purpose when a DRE uses the tests is to prove you committed a crime. They are stating that they believe that you are under the influence or impaired by a category of drug. 

The results from police testing under these conditions can be highly subjective. How many people experience anxiety and nervousness following an arrest, being in custody, and being interrogated for drugs? Would that elevate your blood pressure, your pulse, and perhaps even cause a heart attack? 

Well, maybe I'm being dramatic, but without knowing YOUR normal, without knowing your baseline, without multiple visits under calm circumstances, it is difficult to impossible to use medical testing of your vitals to form an opinion. As a former chiropractor, I believe using medical testing this way is not going to be accurate.  

What are the Various Drug Categories Opinions of a DRE?

The various drug categories cover many different drugs and cast the net far and wide:

CNS depressant

CNS stimulant

Hallucinogen 

Narcotic Analgesic

Dissociative Anesthetic

Inhalant 

and then a specific like Cannabis (THC) or alcohol.

Can You be Misdiagnosed by the DRE doing a DRE?

If you have any underlying medical problems, like high blood pressure, diabetes, heart disease, and/or neuromusculoskeletal disorders, etc. then the results of the DRE are further skewed. Many people walk, talk, and act like they are on drugs because they are sick, they are disabled, they are old, they are upset,or they are tired at 2:00am. Bad driving or impaired behavior may not be drugs at all. 

Is the real injustice being inappropriately evaluated, inappropriately arrested, or inappropriately treated because you are sick, old, or tired?

If you have questions about a DWAI drugs case in NY, call 

us: 607-229-5184

Or find us online! www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016. Educational Purposes Only.

*DISCLAIMER: If you or a loved one has been charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes, including the potential loss of your freedom.

*Attorney advertising

Ithaca Cortland DWI lawyer: Why DWAI Drug Charges in New York are so Nasty!

Welcome to City of Ithaca, NY sign -Route 13
Newman & Cyr, The DWI Attorneys

Why DWAI Drug Charges

in New York are SO NASTY! 

DWAI drugs is one of New York State's nastiest DWI offenses for a number of reasons. The charge of VTL 1192 (4) DWAI drugs means that you are impaired by a drug (legal or illegal) while operating anything that has a motor (motorcycles gas/electric qualify).

What makes the charge of NYS DWAI drugs So bad to defend?

1. It has the high level of punishment: misdemeanor for a first, felony for a second in 10 years and merely the proof level of a violation level offense

2. There are so many ways for the prosecution to prove you are under the effects/influence of a drug it is not in the least bit funny...

They can use statements/admissions (what you tell them) of your drug use; 

A Blood or Urine Test;

Them finding drugs in your possession or in your immediate control;

The police doing a DRE (drug recognition evaluation);

Then then police can bring charges with one or more than one of the above. 

3. The proof for impairment from drugs is "any extent" of actual impairment.

"ANY extent" is not a big stretch for people (on a jury or a judge) to get their head around.

For all these reasons we believe that the charge of DWAI drugs is one of the worst DWI charges to defend against - bar none.

If you have questions about a DWAI drugs case or DWI in NY, call us: 607-229-5184

Or find us online! www.ithacadwi.com

www.watkinsglendwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi

BY NEWMAN & CYR

Copyright 2016. Educational Purposes Only.

*DISCLAIMER: If you or a loved one has been charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes, including the potential loss of your freedom.

*Attorney advertising

Ithaca Watkins Glen DWI lawyer: How a Blood Test DOESN'T test your actual Blood in New York!

(image courtesy picturequotes.com)

HOW YOUR BLOOD GETS TESTED IN NEW YORK....WITHOUT EVER TESTING

YOUR ACTUAL BLOOD...

Huh?  What you say?  

If you are suspected of drugged driving or drunk driving in New York, then you will likely be subject to a BLOOD TEST by the police.  

If you give or are forced to give a sample of your blood to be tested in a New York crime lab, then your blood itself... WILL PROBABLY NOT BE TESTED.  

Instead, the gas portion of a vial containing your blood will be tested. 

WHAT AM I TALKIN' BOUT? 

--------

Let me break it down.  There are two common ways to analyze and separate compounds in liquid like human blood.  

1.  Gas Chromatography (where the actual liquid is heated into gas form and tested) 

[see this post]

AND...

2.  HEADSPACE Gas Chromatography (where only the GAS from a liquid sample is tested)

I'm referring to #2.   

What is "Headspace Gas Chromatography" ?  

It is basically the same process as regular Gas Chromatography; however, only the vapor from a liquid is measured and broken down by the machine (instead of the liquid itself...).  

Why does that matter if they use this method of testing on your blood in a DWI or DWAI drugs case? 

...BECAUSE IT CAN BE INACCURATE.

Problems with Headspace Gas Chromatography

1.  Twice the amount of potential error as regular Gas Chromatography:

The blood is taken by a human from your arm (possible error), then the blood is warmed in a vial until the liquid sample reaches "equilibrium" with the gas inside the vial (possible error).  Then a human removes a sample of the gas inside the vial (possible error). 

2.  The principle of measuring the GAS instead of the Blood itself is the same as in breath testing.  It relies on a scientific principle called "Henry's Law."  

Henry's Law states: 

1. In chemistry, Henry's law is one of the gas laws formulated by William Henry in 1803. It states: "At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid."  (Wikipedia)

From the definition, you can see that temperature can affect the validity of any sample.  Also, if the sample has NOT reached "equilibrium" then the sample itself would be invalid.  

3.  There are additional chemicals added to the blood sample to "help along" any alcohol rising into the GAS portion of the vial.  These are called "salting agents."  Chemically, it is possible that these added chemicals could create a HIGHER CONCENTRATION OF ALCOHOL in any gas sample... called a false positive. 

IF YOU ARE CHARGED WITH DWAI Drugs or DWI and you 

gave a sample of your blood to police, call us:  

607-229-5184

Send me an email:  mike.ithacadwi@gmail.com

Copyright Cyr & Associates 2015

By Mike Cyr

www.ithacadwi.com

www.facebook.com/ithacadwi

www.twitter.com/ithacadwi