Driving While Ability Impaired by Drugs, VTL 1192.4


There are literally hundreds of drugs that could affect an individual's ability to operate a motor vehicle in New York.  The Vehicle and Traffic Law contains pages and pages of recreational and prescription medications that are considered illegal to operate a car while feeling their effects.  

DWAI Drugs is a very serious charge in New York.  It is also a more complicated case than a regular DWI case due to the fact that you likely submitted to a Blood Test.  

A Blood Test case requires a greater level of scientific understanding because we need to be able to read and understand the forensic blood test results including the chromatograms from the headspace gas chromatography computer.  We also would need to make every effort to obtain the blood sample used by the police so that it could be independently tested by experts on our side of the case.

Penalties of VTL 1192.4

  • Up to 1 year in county jail
  • Up to 3 years of probation (closely-monitored community supervision)
  • $500-$1000 fine
  • $395 or $400 court surcharge (depends on if City or Town/Village court)
  • Revocation of license for 6 months [1 year if under age 21]
  • Mandatory attendance to Victim Impact Panel
  • DMV fines of $750 over 3 years (Driver Responsibility Assessment)
  • Fees for DMV relicensure 
  • Community Service Hours
  • Permanent Criminal Record (there is no expungement in New York)

Forensic Blood Testing

If you give or are forced to give a sample of your blood to be tested in a New York crime lab, then your blood itself... will probably not be tested.  

Instead, the gas portion of a vial containing your blood will be tested.

There are two common ways to analyze and separate compounds in liquid such as human blood.  

1.  Gas Chromatography (where the actual liquid is heated into gas form and tested) 


2.  HEADSPACE Gas Chromatography (where only the GAS from a liquid sample is tested)

New York typically uses Headspace Gas Chromatography in the majority of cases.

What is "Headspace Gas Chromatography" ?  

It is basically the same process as regular Gas Chromatography; however, only the vapor from a liquid is measured and broken down by the machine (instead of the liquid itself...).  

Why does that matter if they use this method of testing on your blood in a DWI or DWAI drugs case? 


Problems with Headspace Gas Chromatography

1.  Twice the amount of potential error as regular Gas Chromatography:

The blood is taken by a human from your arm (possible error), then the blood is warmed in a vial until the liquid sample reaches "equilibrium" with the gas inside the vial (possible error).  Then a human removes a sample of the gas inside the vial (possible error). 

2.  The principle of measuring the GAS instead of the Blood itself is the same as in breath testing.  It relies on a scientific principle called "Henry's Law."  
Henry's Law states: 

In chemistry, Henry's law is one of the gas laws formulated by William Henry in 1803. It states: "At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid."  (Wikipedia)

From the definition, you can see that temperature can affect the validity of any sample.  Also, if the sample has NOT reached "equilibrium" then the sample itself would be invalid.  

3.  There are additional chemicals added to the blood sample to "help along" any alcohol rising into the GAS portion of the vial. These are called "salting agents."  Chemically, it is possible that these added chemicals could create a higher concentration of alcohol in any gas sample... called a false positive. 

Due to highly scientific nature of BLOOD TEST cases, it is extremely important to have an attorney representing you that understands theses processes and the ways that prosecutors and forensic lab technicians can make mistakes.  

The general public does not understand the inherent margin for error in these tests and it is our job as defense attorneys to educate the prosecutor, the Judge, and most importantly, the JURY about the errors in the process and the risk for false positives.

No Ignition Interlock Requirement for DWAI Drug cases

There is a common misconception among Town Justice Courts and Probation Departments in upstate New York that it is appropriate to order an Ignition Interlock Device for 1 year for a person convicted of a SINGLE COUNT of DWAI Drug (VTL 1192.4). 


What does the law say?

The Ignition Interlock Device sentence is found in Penal Law section 65.10(2)(k-1):

"The Court may require the IID condition only where a person has been convicted of violation of VTL 1192.2 (DWI over .08), 1192.2a (Agg. DWI .18), or 1192.3 (DWI common law), or any crime defined by the VTL ("Vehicle and Traffic Law") or this chapter of which an alcohol-related violation of any provision is an essential element."  

There is more information in Vehicle and Traffic Law, section 1198(2)(a) and 1198(3)(d).

ALSO, this provision was challenged in the New York Courts in 2012.  In People v. Levy, the Appellate Court (2nd dept) found that it was an imposition of an illegal sentence to make an Ignition Interlock Device part of a VTL 1192.4 sentence for a Felony DWAI drug conviction.   

Why should you care?

Unfortunately, I've seen many instances of Town and Village Court Justices who do NOT understand this provision and attempt to sentence people to an IID when it is ILLEGAL.  

That is why it is important to be represented by an attorney who handles DWI and DWAI drug cases on a frequent basis.  These kinds of cases are full of pitfalls for the inexperienced criminal defense attorney (or even the general criminal practitioner).  

DWAI drug cases (VTL 1192.4) are a subsection of law all their own.  They require attention to detail and scientific knowledge to defend them the best way possible. 

If you are charged with DWAI Drugs (VTL 1192.4), call us: 607-229-5184

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