30 | New Year 2022 | BAEC Bulletin
Driving While Impaired By Drugs Now In Line With Driving While Intoxicated BY HON. TIM FRANCZYK (RET.)
Introduction As of December 2021, the crime of Driving While Ability Impaired by Drugs (DWAID) under VTL 1192 (4) has been revised to define “impaired” in the same way as “intoxicated” (rather than “impaired” as was previously the case) under People v Cruz, 48 NY 2d 419 (1979). In Cruz, the Court of Appeals held that a person is INTOXICATED when, as the result of the voluntary consumption of alcohol, he/she is INCAPABLE of employing the physical and mental capabilities that he/she is expected to possess to operate a motor vehicle as a reasonable and prudent driver. (id at 428). In contrast, a person is IMPAIRED when his his/her ability to operate a motor vehicle as a reasonable and prudent deriver is adversely affected to ANY EXTENT. The difference between the two conditions, then, is one of DEGREE and a motorist crosses the line from IMPAIRED to INTOXICATED when his abilities to drive (e.g., perception, motor control, reaction time) have been impaired to a SUBSTANTIAL EXTENT. (People v Ardila, 35 NY2d 846 [1995]). Driving While Ability Impaired by Drugs vs. Driving While Impaird (By Alcohol) As stated in VTL 1192-1, a person is guilty of DWAI when he/ she operates a motor vehicle (i.e., drives or manipulates the machinery to put it in motion) on a public highway (which includes a private road accessible from a public highway, a parking lot with four or more parking spaces) while his/her ability to do so is IMPAIRED by the consumption of alcohol. (See: People v People v Alamo, 34 NY2d 453 [1974], People v Williams, 6 NY2d 657 [1987]). The bar for alcohol impairment is quite low, requiring only that the evidence (e.g., manner of operation, defendant’s physical appearance/coordination) establishes that the motorist’s ability drive in a reasonable and prudent manner was affected to ANY DEGREE, however slight. (People v Cruz, supra). It is important to note that DWAI is a VIOLATION (not a crime) and carries a mandatory minimum fine of $300.00 up to a maximum of $500.00 along with a suspension of the driver’s license days for 90 days (which may be stayed pending enrollment in the Drinking Driver program). There is also the potential for 15 days in jail. By contrast, DWAID (VTL 1192-4), like DWI (1192-3) is a CRIME punishable by a fine of $500.00 to $1000.00, license revocation for six months, three years of probation and up to one year in jail. Even though VTL 1192-4 speaks of IMPAIRMENT by drugs (including marijuana), up until just recently, the definition of impairment was the SAME as for the non-criminal violation of DWAI. That is, under the former law, “a person’s ability to operate a motor vehicle is impaired by the use of a drug when his/her use of a drug has actually impaired TO ANY EXTENT, the physical and mental abilities that he/she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” (People v Caden, 189 AD3d 84 [3d Dep’t 2020]), citing People v Cruz supra at 427).
This definitional anomaly was rectified in Caden, a vehicular manslaughter case in which the Third Department abandoned the lower threshold in favor of one that defines impairment in terms of the higher degree of impairment required to sustain a conviction for Driving While Intoxicated. New Definition of Impairment in DWAID Cases So now, the CJI on DWAID states, in pertinent part, that “A PERSON’S ABILITY TO OPERATE A MOTOR VEHICLE IS IMPAIRED BY THE USE OF A DRUG WHEN HIS/HER USE OF A DRUG HAS RENDERED HIM/HER INCAPABLE OF EMPLOYING THE PHYSICAL AND MENTAL ABILITIES WHICH HE/SHE IS EXPECTED TO POSSESS IN ORDER TO OPERATE A VEHICLE AS A REASONABLE AND PRUDENT DRIVER.” As with DWI, the People must now meet the Cruz standard for intoxication when trying to establish the defendant’s impairment by the use of drugs. In other words, the evidence must show that the defendant was impaired to such an extent that he/she could not employ the requisite abilities to drive in a reasonable and prudent manner.
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