While medical and recreational marijuana has become legalized in more states, New York’s marijuana laws remain mostly intact, with changes focused primarily on medical marijuana. To be sure, although penalties for marijuana possession have been somewhat relaxed, related marijuana laws have not. For example, the penalties for operating a motor vehicle while under the influence of marijuana remains intact.
More often than not, people associate driving while under the influence with the consumption of alcohol. However, the truth is that New York State Vehicle and Traffic Law (VAT) also criminalizes driving while under the influence of drugs, including marijuana.
Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, under Vehicle and Traffic Law Section § 1192
More specifically, VAT § 1192(4) – driving while ability impaired by drugs (DWAI) – addresses drivers who operate a motor vehicle while their ability is impaired by any drug identified in New York Public Health Law (PHL) § 3306, which specifically includes marijuana.
Moreover, VAT § 1192(4)(a) criminalizes operating a motor vehicle while a person’s ability is impaired by the combined influence of any drugs identified in PHL § 3306 and/or the combined influence of alcohol and drugs identified in PHL § 3306. Thus, a person can be charged under this section if they are impaired by only marijuana or the combined effects of alcohol and marijuana, or any other drug identified in PHL § 3306.
Law Enforcement Observations
With any suspected DWI/DWAI stop, law enforcement typically stops a driver who they believe to be impaired based upon their “observations.” First, there is the observation of how the driver operated their motor vehicle prior to the stop. Law enforcement will observe such factors as the driver’s speed in relation to the posted speed limit (i.e. either too fast or too slow), the driver’s ability to stay in their lane and the driver’s ability to adhere to the traffic controls (i.e. stop signs, stop lights, etc.).
Moreover, law enforcement’s observations include what they can perceive with any of their senses, which necessarily includes their sense of smell. It is no mystery that marijuana has a strong distinct smell. Thus, if a person is smoking marijuana while driving their car, the smell can often be perceived by other motorists or pedestrians, including law enforcement who happen to be in the area. Law enforcement can use their observation of smell as a basis for a stop.
Once you have been stopped, law enforcement will take note of a number of aspects about you that they are able to perceive. They will observe whether your eyes are bloodshot, watery or appear tired or glossy; whether your complexion appears flush; whether your speech is slurred; whether you smell of marijuana and whether your clothes appear disheveled.
If the law enforcement officer suspects your ability to be impaired after they had the opportunity to observe you, they typically will ask you to submit to a chemical test.
Tetrahydrocannabinol (THC), the primary psychoactive constituent (or cannabinoid) in marijuana, takes much longer than alcohol for the body to metabolize. Thus, it can appear in a person’s system several days or even weeks after the marijuana was originally consumed.
Consequences of Conviction of Driving While Under the Influence of Marijuana
So what happens if you are arrested and charged with DWI/DWAI? Unfortunately, a conviction will lead to you being subject to various penalties/punishments under VAT § 1193. Possible penalties/punishment for a DWAI violation include:
- First conviction:
- A misdemeanor conviction (criminal record);
- Up to one year in jail;
- A fine up to $1,000.00;
- A license suspension for 6 months;
- Second conviction:
- A Class E felony (criminal record)
- Up to four years in prison;
- A fine up to $5,000.00;
- One year license revocation; and
- A mandatory installation of ignition interlock device in all motor vehicles owned or operated by the convicted.
- Third or more conviction within 10 years:
- A Class D felony (criminal record)
- Up to seven years in prison;
- A fine up to $10,000.00;
- A one year license revocation; and
- A mandatory installation of ignition interlock device in all motor vehicles owned or operated by the convicted.
Please note that the penalties/punishment(s) are more severe if other factors exist.
As daunting as all of the consequences may seem, all hope is not lost if you are charged with DWI/DWAI. You still have rights.
What to Do If You Are Stopped and Arrested for Driving While Under the Influence of Marijuana
So what should you do if you are stopped and arrested for suspected DWAI by marijuana? Remember, you have rights.
The Fifth Amendment of the United States Constitution provides every citizen and resident of the U.S. the right to remain silent in a criminal proceeding. It states, in part: “[n]o person…shall be compelled in any criminal case to be a witness against himself.”
In essence, the right to remain silent means that you have the right to not make any statements or answer any questions at any stage of a criminal proceeding or investigation that may lead to criminal charges, including a traffic stop.
Law enforcement often ask questions like: have you had anything to drink or smoked marijuana?” or “where are you coming from?” You can exercise your right to remain silent and not answer any questions. Indeed, it is advisable to do so under most circumstances.
Additionally, law enforcement may ask you to submit to a chemical test if they suspect that you are under the influence or your ability is impaired. In New York State, law enforcement officers are required to advise a person that they ask to submit to a chemical test that they have the right to refuse the test. However, if you choose to refuse to submit to a chemical test, your refusal can be used as an admission of guilt in a criminal proceeding if you are ultimately arrested and charged. Although it appears that a person is exercising their right (to remain silent) in refusing the chemical test, they actually end up making an incriminating statement in doing so.
Additionally, a refusal subjects you to a hearing with the Department of Motor Vehicles (DMV) to determine whether your license will be suspended. If it is determined at the DMV hearing that you did in fact refuse to submit to a chemical test and that refusal was not justified, your license will be immediately suspended for a minimum of six months.
More often than not, refusing to submit to a chemical test when stopped by law enforcement creates more problems for you. Thus, it is usually not advisable to refuse to submit to a chemical test.
The Right to Not Be Questioned Without an Attorney
Similar to the right to remain silent, you have the right to have an attorney of your choosing present under the Sixth Amendment, if you decide to answer any questions. Once you tell law enforcement that you choose to exercise your right to an attorney/counsel, they are required to cease all questioning that would lead to an incriminating statement. Even if they continue to ask such questions you can continue to evoke your Sixth Amendment right.
However, law enforcement can continue to ask the standard background questions to determine your name, age, place of residence and occupation.
Why Hire an Attorney?
Although an attorney can be appointed to a criminal defendant for free under certain circumstances, the results of all criminal prosecutions are determined by the facts and circumstances of your specific case and the skill and experience of your defense attorney. A skilled defense attorney will analyze all the relevant issues in your case at the earliest stage possible to determine the strengths and weaknesses of your case. In some instances, the case can be thrown out the arraignment. Such issues that should be analyzed immediately include:
- the validity of the stop;
- the propriety of the administered chemical tests;
- the accuracy of the results of any and all tests;
- the admissibility of any alleged statements;
- any and all recordings of the stop, including dash-cam videos of the arresting officer(s); and
- whether you have any medical or health issues unrelated to drug use to explain the alleged police observations.
Remember, you have rights and the district attorney still has the burden of proof in a criminal prosecution.
The Law Office of Kevin J. Deloatch, Esq. has an extensive criminal law practice. If you or someone you know has been charged with DWAI call today at (646) 792-2156 for a free consultation. The outcome of a criminal case is often determined by what occurs at the beginning stages of the prosecution.
