Friday, June 12, 2015

You Can Huff and You Can Puff, but Sooner or Later the Legislature Will Blow Your House Down!

     Although this case/decision is out of Montana, it's still relevant to DWI law here in NY. Long story short, the issue before the court in Montana was whether an ingredient in an aerosol product that allegedly causes impairment (from huffing) but does not clearly fit within the definition of a “drug” under Montana law can still serve as a “drug” for purposes of a DUI prosecution. The court held that it can.
     New York State has been dealing with a similar quandary for some time now. Virtually every section of NY VTL Sec. 1192 that references impairment by drugs limits a prosecutable drug to those specifically enumerated in Sec 3306 of the NY Public Health Law (“PHL”), referred to as controlled substances. For example, VTL Sec. 1192.4, Driving While Ability Impaired by Drugs, states that “No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.” VTL Sec. 114-a contains the definition of a “drugs”: “The term ‘drug’ when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law.” So if it turns out that a driver is in fact impaired by a substance but that substances is not specifically listed in PHL 3306, they cannot be prosecuted for a drugged driving offense…that is unless the driver is charged with violating VTL Sec. 1192.4-a, generally referred to as a Combined Influence DWI. Then all bets are off!
     VTL Sec. 1192.4-a does not specifically limit the term “drug” to those listed in PHL 3306. The language of the statute instead merely prohibits driving drunk while also impaired by “any drug or drugs.” Does this mean that if you’re intoxicated AND impaired by a drug, it can be ANY drug? This has been the debate here in NY for a while now, and there are some who say yes! And there are also some who say no!
     The Sullivan County Court (Hon. Frank LaBuda) held in 2007 that the statute (VTL Sec. 1192.4-a) is limited only to those controlled substances listed in PHL 3306 (since every other use of the term “drug” throughout the chapter directly incorporates PHL 3306). However, not very long thereafter, in 2008, Hon. Matthew Sciarrino, Jr. of the NYC Criminal Court, Richmond County, held just the opposite when he decided that an 1192.4-a prosecution could continue despite the fact that the drugs the defendant admitted to consuming were not controlled substances pursuant to PHL 3306. The basis for his decision? VTL Sec. 1192.4-a did not specifically incorporate PHL 3306 into its language.
So there ya go, two sides to the same coin.
     But have no fear. The NYS legislature has put the wheels in motion to broaden the scope of offense punishable as DWIs! There is a bill pending now that would expand both VTL 1192.4 (DWAI-Drugs) and 1192.4-a (Combined Influence) to permit prosecution for DWI offenses involving literally any drug that has the potential to impair a driver’s physical and/or mental abilities. While not necessarily good news for New York Drivers who are on prescriptions medications (which today seems to be plenty of people…and plenty of medications!), I believe the immediate result of this new legislation (if it passes) will be increased litigation concerning every aspect of non-schedule controlled substances and their effects, and how the prosecution can even prove impairment from an inhalant, a substance that in most instances dissipates almost immediately. Should be fun for us defense attorneys though!

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