THE BLOG

Weed 1. DWI Drugs 0: Court Dismisses Case Where Defendant Admits to Smoking 'Weed' Before Driving

12/29/2015 03:59 pm ET | Updated Dec 29, 2015
  • Andrew Stengel Former prosecutor in the Manhattan District Attorney’s Office, current New York City-based criminal defense attorney

A recent case in Suffolk County may have made it more difficult to prosecute driving while intoxicated by drugs, a violation of Vehicle and Traffic Law Section 1192(4), also called DWI Drugs. In New York like other states, just as it is illegal to drive while intoxicated by alcohol it is also illegal to drive when one's ability is impaired by a drug like marijuana (which New York's law calls "marihuana").

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In the case of People v. Malone, 2015 NY Slip Op 51855(U) (Suffolk Cnty. Dist. Ct., Dec. 21, 2015), the defendant was charged with DWI Drugs after she was pulled over for driving 65 miles per hour in a 40-mile-per-hour zone. The criminal compliant signed by the arresting police officer stated that the defendant "had bloodshot glassy eyes, slurred and mumbled speech [and] was unsteady on her feet" and that field sobriety tests showed signs of impairment. The complaint also said that defendant said, "I smoked some weed earlier." But the complaint did not have any facts that the police officer recognized the signs of the effects of or impairment by marijuana. The defendant refused to submit to a blood test.

The Court in Suffolk County dismissed the complaint holding that it was not sufficient notwithstanding the defendant's admission. The decision is somewhat odd because--as weird as it may sound--an admission by a defendant is not considered hearsay in a criminal complaint or otherwise (see, e.g., People v. Shawn, 2013 NY Slip Op 51473(U) (Just. Ct. of Town of Hyde Park 2013)). But, while a criminal complaint may be sufficient with only a defendant's admission, at trial in New York an admission requires corroboration to sustain a conviction.

It is possible that the complaint in People v. Malone might have been held sufficient if it contained boilerplate language that the arresting officer was trained the recognition of drugs and that watery eyes and mumbling speech are signs of impairment by marijuana. In fact, when people are arrested DWI Drugs often a criminal complaint will allege that there was an odor of marijuana from the defendant or that marijuana was recovered from the defendant or the defendant's car, which leads to additional charges.

Generally speaking it is difficult to prove cases charging DWI Drugs. (This is of course not an endorsement to smoke marijuana and then drive!) Unlike alcohol, where there is a per se illegal floor of .08% blood alcohol content (often incorrectly referred to as the legal limit), there is no set blood alcohol content for any drug in New York. Whereas states like Washington and Montana have a per se limit of 5 nanograms of delta-9-THC per milliliter of blood for marijuana.

In New York, with or without a blood test, in order for a prosecutor to prove a DWI Drugs case beyond a reasonable doubt, there would likely need to be evidence of impairment like observations of poor driving or a crash. As the tide of marijuana decriminalization--which is not legal in New York--rolls through the country more jurisdictions may take a per se-based approach to marijuana, which would make it far easier to prove the crime.

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