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!

Here's the article: http://www.greatfallstribune.com/story/news/local/2015/06/10/supreme-court-huffing-can-lead-dui-charge/71012998/

Close Call Indeed!

The guy in the article below, Mr. Green, very narrowly avoided a DWI prosecution thanks to a very honest witness. And avoiding a DWI in NJ is like a near-death experience, so this guy should count his blessings, and be incredibly grateful no one (other than him) was hurt!

(As someone who I greatly admire once said with regard to NJ and its DWI laws: "You ask what happened to the former Soviet Union? It became the state of New Jersey!")

Had the witness positively identified Mr. Green as the driver who struck the pole, he would have had a much more unpleasant evening, most likely having been arrested and processed for DWI in addition to the other summonses he was ultimately issued.

So why wasn't he arrested for DWI when he admitted to the police six days later that he actually was driving the truck? Since the witness was unable to ID Mr. Green at the time, and Mr. Green was already in his home (creating an issue of access to alcohol and a timeline problem), the police lacked probable cause to arrest Mr. Green for DWI and were consequently prohibited from administering any field sobriety tests or determining his BAC. Since the requirement for a DWI prosecution is that you be intoxicated WHILE operating a vehicle, the circumstances prevented the officers from attempting to determine Mr. Green's BAC or degree of impairment at any time remotely related to when he operated his vehicle.

Hopefully Mr. Green will fully appreciate the "break" he was given here and think twice before driving while intoxicated (or even while his ability is impaired) in the future.

Here's the article:

http://www.nj.com/cumberland/index.ssf/2015/06/stumbling_bleeding_man_unable_to_recall_drunk_driv.html

I’m (Drunk) On a Boat!

Warm weather is finally here in NY! Well, on most days, anyway. And thankfully warm weather means beaches and boats! And in a lot of instances, boats come stocked with beer! But be careful if you plan to have a drink or two out on your motor boat this summer, you motorboatin’ sonofagun, particularly if you’re the one driving. Although you may not be in a car or on a public highway when you’re tooling around checking out the girls in bikinis, you can still be arrested for operating a motorized vessel in an intoxicated or impaired condition, a BWAI (Boating While Ability Impaired) or BWI (Boating While Intoxicated). A BWAI is a violation level offense, but a BWI is a misdemeanor just like a DWI, which can result in a criminal record and suspension of your privilege to operate a motorized boat. Multiple BWI convictions can also result in a felony charge.

Many courts (and prosecutors) are not very familiar with BWI offenses. It is therefore critical that your BWI defense attorney is knowledgeable in all aspects of Boating While Intoxicated offenses. If you have been charged with a BWAI or BWI, call us today at (845) 454-1919 to schedule a free consultation.

DWI on an ATV? WTF?!

From what I can tell from the article below, these guys were riding trails and river banks before one of the poor bastards swamped his ATV only to then watch it float down river (and I'll assume the second guy stopped laughing his ass off once the officer's focused their attention on him). So maybe they had been drinking, but if that's the sole basis for the DWI arrest, these officers missed the mark. While you can be arrested for DWI on an ATV, you have to be operating it (or have operated it) on a public roadway in order to be subject to VTL1192. There is no set of DWI laws unique to ATV's like there is for boats (i.e., NYS Navigation Law Sec. 49-a).

Unless there's more to the story, I have a feeling these guys will be looking at non-alcohol related dispositions at the end of the day, which should help buy that replacement ATV!

Here's the article: http://poststar.com/news/blotter/two-men-charged-with-dwi-on-atvs/article_026b13dd-9a74-570e-b98c-e5f03e514d59.html

Mowing While Intoxicated???

Like to have a beer (or four) while mowing your lawn? Nothing wrong with that...just keep it in the yard, Jack! The guy in the article below didn't head those instructions. Now he's facing criminal charges!

As humorous as it sounds, picking up a DWI on a tractor is not as uncommon as you might think. I've even seen a few golf cart DWI's from time to time! If what you're driving is defined as a "motor vehicle" pursuant to NYS VTL Sec. 125 (and a tractor is!), and you're operating it on a on a "public highway" as defined in VTL Sec. 134 (which is really any road), then you are subject to most VTL laws, including DWI! 

So maybe think twice before driving your Cub Cadet across the street to mow your neighbor's lawn if you needed a few tall boys to get through your own yard!  

Here's the article: http://www.wkbw.com/news/police-blotter/man-gets-dwi-while-driving-his-cub-cadet-mower

DUI from a whip-it?!?!?

So according to the article in the link below, a young lady was arrested in Tennessee after crashing into a few mailboxes (and allegedly leaving the scene of an earlier accident). She was subsequently charged with DWI (or DUI in TN) after the arresting officers discovered quite a few cans of whipped cream and receipts in her car. 

This should be a fun one to defend! The high from a nitrous cartridge lasts all of what, 15 to 20 seconds (or, uh, so I've heard...)? Any impairment (if she were actually taking hits while driving) would have all but disappeared by the time the police arrived, rendering any field sobriety test entirely useless and unreliable. Obviously, there's no BAC, and you can forget about a blood test. Granted, this is Tennessee, but here in New York, based on what I gathered from the article, she'd be looking at maybe a reckless driving, at worst!

Here's the article: http://wkrn.com/2015/05/27/police-woman-high-on-retail-aerosol-products-hits-mailbox/