DWAI by Drugs in New York: What You Need to Know

February 9, 2021

By Jill K. Sanders, Esq.

In 2018, 12.6 million people drove under the influence of drugs. And in 2016, 43.6% of fatally-injured drivers tested positive for drugs; half of those drivers tested positive for two or more drugs. As such, New York is tough on people who drive when their ability is impaired by drugs (“DWAI by Drugs”). Here, we describe how you can be charged with this offense and what the penalties may be.


What is DWAI by Drugs?

If you drive with drugs in your system, you can be charged with DWAI by Drugs under Vehicle and Traffic Law § 1192(4). The statute prohibits any person from operating a motor vehicle when their ability to operate the vehicle is impaired by the use of a drug. Specifically, a “drug” is any substance listed under Public Health Law § 3306. This includes:

  • Opiates and opium derivatives
  • Hallucinogens
  • Marijuana and THC
  • Depressants, including barbiturates
  • Stimulants, including cocaine and amphetamines
  • Synthetic drugs

For a conviction, the prosecution must be able to prove:

  1. Voluntary ingestion of a drug
  2. Drug ingested is one of the prohibited drugs
  3. Operation of a motor vehicle
  4. Defendant’s ability to operate the motor vehicle was impaired by ingesting that drug

A police officer will take note of your appearance when you’re suspected of DWAI by Drugs. Observations made by officers include, among other things, impaired or rapid speech; lack of coordination; glassy, red, or watery eyes; dilated or small pupils; involuntary movements; and lack of attention. However, this list isn’t exhaustive; there are many other signals that may indicate that you’ve taken a drug and your ability is impaired.


DWAI by Drugs and Marijuana

There has been a growing movement in the US to de-criminalize or legalize marijuana. Indeed, New York recently de-criminalized possession of smaller amounts of the drug. Yet, it still remains illegal to drive while under the influence of marijuana. This means you can be charged with DWAI by Drugs. For example, a driver’s response time will be affected by the THC in marijuana. Moreover, a driver may experience hallucinations or visual distortions from THC. Such affects make it more likely the driver may fail to follow the rules of the road, and they may get into an accident or hurt someone.

One issue that comes up in litigation is that there is no specific THC concentration that indicates impairment. So, if a driver provides a blood or urine sample, the prosecution cannot rely on the THC measurement alone. Often times, metabolites of THC can remain in a person’s system for as long as a month. This doesn’t mean their ability is impaired for the whole month. Rather, an officer’s observations and/or a defendant’s admissions may also be evidence of impairment.


DWAI by Drugs and Prescription Pills

There are many people who are prescribed controlled substances by their physicians. For example, many people take opiates to deal with pain. However, these drugs may affect their ability to operate a motor vehicle. The fact that the drug ingested was prescribed by a doctor is no defense to a charge of DWAI by drugs.

Similar to marijuana, the concentration and frequency of use can change how it affects an individual. There is also a level of subjectivity when it comes to drugs; a drug may affect people differently. As such, an expert will usually be needed to interprets the results of blood and urine tests to determine if the person’s ability was impaired.


Penalties for DWAI by Drugs

The penalties for DWAI by Drugs are similar to that of Driving While Intoxicated by Alcohol. The offense is an un-classified misdemeanor, punishable by as much as one year in jail. More often, a Conditional Discharge or a term of probation is imposed for a conviction. And the fines can be as much as $1,000 plus any mandatory surcharge. Additionally, your driver’s license will be revoked for a minimum of six months. Note that penalties will increase if you refuse a chemical test.

If you’re charged with DWAI by Drugs again within 10 years, you will be charged with a felony. For example, many charged with felony DWAI by Drugs receive a sentence of five years’ probation along with a fine, surcharge, and license revocation. And the fines are much steeper – up to $10,000. In some cases, a person can be sentenced to state prison for the offense.