Marihuana and Driving - Part 2
February 1, 2017
In an entry we published some time ago, we discussed some of the legal risks people run when they drive after smoking marihuana*. What we didn’t really get into there is that - in New York - the risks run by drivers who use marihuana or other drugs (legally or illegally) are actually greater than those run by people who merely drink and drive.
This is because, when it comes to impairment, alcohol is privileged under Section 1192 of the Vehicle and Traffic Law.
It’s a criminal offense, of course, to drive ‘while intoxicated’ by alcohol. As defined by Section 1192, you can be found guilty of driving while intoxicated either by meeting an ostensibly objective standard (Subdivision 2), or by meeting a patently subjective one (Subdivision 3).
Subdivision 2 of the law forbids driving with a certain blood alcohol content (BAC). On its face, this is objective: you take a measurement and come up with a number (whether the number is correct is an issue we won’t get into here). If the number equals a BAC of .08 of 1 percent, you’re guilty of the crime. If not, you’re not.
The other way you can be found to have committed the crime (Subdivision 3) is very subjective. You can’t operate a motor vehicle ‘in an intoxicated condition’.
What does it mean to drive while ‘in an intoxicated condition’? The term ‘intoxicated’ has more than one definition. Several are set forth in People v. Litto, a 2007 opinion from the Court of Appeals. The definitions include the following: “one is ‘intoxicated when he has imbibed enough liquor to render him incapable of giving that attention and care to the operation of his automobile that a man of prudence and reasonable intelligence would give.’ A violation of Subdivision 3 of 1192 is generally proven using the arresting officer’s observation of the defendant’s driving and behavior during and after the stop. You can be convicted under Subdivision 3 even if you have a BAC of less than .08 of 1 percent although, under Vehicle and Traffic Law Section 1195, a BAC of .07 means you were not intoxicated, unless the prosecutor can prove otherwise. It’s interesting to note that, per Litto, you can’t be convicted of driving while intoxicated if all you have in your system is something other than alcohol.
Even if you’re not ‘intoxicated’, however, you can still fall afoul of Section 1192. You can violate Subdivisions 1, 4 and 4-a of the law by driving in an ‘impaired’ condition. Each of these subdivisions begins with “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by . . . .” However, a violation of Subdivision 1, which deals with alcohol, is treated very differently from a violation of either Subdivision 4 or 4-a, which deal with drugs.
First, though, what does ‘impaired’ mean? As noted in Joseph R. Carrieri’s commentary on Section 1192, there is no statutory definition of the word ‘impaired’. Carrieri points out, however, that New York’s Court of Appeals (in a case called People v. Cruz) has filled the gap by ruling that “driving a motor vehicle while there is any alcoholic impairment of the driver’s ‘ability to operate such vehicle’ would constitute a violation” of Section 1192. The key word, in conjunction with ‘impairment’, is ‘any’. While Cruz addresses the issue of alcoholic impairment, a case entitled People v. Rossi, makes it clear that 1192(1) and 1192(4 and 4-a) use the same definition of ‘impaired’.
In other words: (1) impaired is impaired, whether you’re dealing with alcohol or some other substance; and (2) ANY level of impairment, no matter how slight, makes you impaired under the statute. So much for similarities between alcohol alone and drugs or alcohol plus drugs.
The big difference is that it’s not a crime under Subdivision 1 of 1192 (it’s a traffic infraction) to drive while you’re just impaired by alcohol (You have to be intoxicated, or impaired plus, to be guilty of a crime, if all you have in your system is alcohol). Furthermore, if a BAC was obtained Section 1195, as we’ve mentioned, contains certain objective guidelines: we’ve talked about what a BAC of .07 means; a BAC of .05 makes it difficult to prove you were even impaired.
On the other hand, it is a crime (rather than a traffic infraction) if you drive while impaired to any extent by drugs or by a combination of drugs and alcohol. ‘Drug’, by the way, is defined in Vehicle and Traffic Law Section 114-a. It means “any substance listed in section thirty-three hundred six of the public health law.” And taking a look at New York’s Public Health Law Section 3306, we see that it contains comprehensive schedules of controlled substances. These include many types and categories of drug that cover heroin; prescription drugs such as xanax and klonopin, and marihuana. If we’re talking about a prescription drug, by the way, it makes no difference, under the law, whether it was properly prescribed or not.
Keep in mind, too, as pointed out in our prior entry on the subject of marihuana and driving, that the labs employed by the state only test for the presence of a drug. They do not test for quantity. The only evidence in a prosecution for impairment by drugs, etc., is highly subjective - red eyes and a stumble while exiting your car, plus the presence of THC or xanax in your system, can equal a criminal conviction.
* Note: We use the spelling ‘marihuana’ throughout this entry because that’s the spelling the legislature has used in the relevant statutes.