Prescription Drugs, Miranda Rights, and DWIs: What You Need to Know

Rachel Kugel: Hey, I’m Rachel Kugel and this is Rachel Defends you. Thanks so much for joining me. Today, I don’t have any guests with me, but I did wanna take the opportunity to get on here and answer some questions. I’ve been getting FAQs through my website and email and I thought this might be a good opportunity to answer some of them.

And perhaps these are questions that everybody is interested in or anybody who’s facing a DWI or has a loved one dealing with this. These might be questions, the answers to which are helpful to everyone. So I thought, why not record an episode where I simply talk to you and answer some questions that I’ve been getting. So to that end, here we go.

I was arrested for DWI in New York after taking prescription medication, not alcohol. I had no idea that taking prescription medication could lead to a DWI. Can you explain how DWIs work when drugs, even legal ones, are involved?

A really great question and one I get all the time. So DWI isn’t just about driving while intoxicated with alcohol. It is absolutely possible to be DWI on drugs and even further to be DWI on legal drugs. Even over the counter drugs in certain instances, like NyQuil or Tylenol PM. Prescription drugs that you have a right to be taking. Ambien, OxyContin, Percocets, Xanax, any of these things. It is possible if the drug is impairing to the driver at the time of the operation of the car. That is enough to make a DWI case against you. All that being said, I will say that DWI drugs is a much more complicated case for the state to prove.

And the reason for that is if you think about DUI alcohol, there is a specific legal limit in New York, New Jersey, and pretty much everywhere in the country which is 0.08. And there’s a specific method to test the amount of alcohol in someone’s blood through their breath.

So we’ve got all kinds of alcohol tests and different devices that can test if someone is 0.08 or more. And it is possible in most states to be found guilty based on a reading of 0.08 or more. But with drugs, it’s a lot more complicated and we’re seeing this more with the legalization of marijuana in many states. We are seeing more DWI drugs on marijuana and other drugs, and there aren’t a specific set of standards for what amount makes someone impaired or intoxicated. In most instances, a combination of evidence is required. So instead of the state having this easy case to prove wherein they pull someone over for speeding, the person goes to the precinct, they blow into a machine, they blow 0.08.

The case is maybe a one or two witness case, right? A police officer, an alcotest operator is about all the state would need to make that case out. On drugs it’s a much more complicated situation because we’ve got to prove what drug is in the person’s body. Typically that’s done via a urine test or in some cases a blood test.

And how do we know that specific drug is impairing the person at the time of the arrest of the stop of the vehicle? Typically that’s done through something called A DRE or drug recognition expert. And this is a police officer who’s specially trained, took some extra training, some extra classes, to be able to try and identify certain classes of drug.

And it’s in combination, the combination between the presence of an impairing substance in the person’s body, coupled with testimony from an expert witness. It could be this DRE. In some instances, it could be a medical doctor, a lab tech, a chemist. I mean, there are different scenarios to give the finder of fact information to show how that person is being impaired by that specific drug at the time.

In other words, it’s not enough to just show that the person consumed the drug. You have to be able to show that specific drug is impairing that specific person at the specific time of the stop of the vehicle. And while it is absolutely possible for the state to make that case, it is certainly much harder for the state to make that case.

From a defense perspective, a harder case for the state is a better case for the defense. I hope that answers that question. Next one. I’ve heard in New Jersey that there isn’t the offer of jury trials for DWI cases. Is that true? And if so, how is that even legal?

Well, it is true. In New Jersey, we do not get jury trials on drunk driving cases.

If you are going to have a trial on your drunk driving case, that case will be decided by a judge. It’s called a bench trial rather than a jury trial, wherein the judge acts as finder of fact, reviews all the evidence, hears all the arguments, and determines guilt beyond a reasonable doubt.

How is that legal is because in New Jersey, a drunk driving case is not a crime. It’s what’s called a quasi-criminal case, which means that while it is a traffic offense and not a crime, you do have most, if not all, other than the jury trial piece, you have most of the other rights you would have in a criminal case.

But not all of them, not the right to a jury trial. And because it’s not a crime it cannot result in a jail sentence of more than six months. In New Jersey, even if it’s a third or fourth or fifth offense DWI, the jail exposure is a mandatory six months incarceration. Because it’s not a crime and does not carry a sentence of longer than six months in jail.

In New Jersey, it is legal to have a bench instead of a jury trial. Last one, my friend just got a DWI and the officer never read his Miranda rights. Does that mean the whole case could get thrown out?

This is probably the number one question I get asked. I get asked this all the time, I wasn’t read my rights and therefore, shouldn’t the case be thrown out?

Unfortunately, the remedy for not being read Miranda Rights is not that the case gets thrown out. If you think about what Miranda says, the Miranda warnings, which everyone knows. You have the right to remain silent, anything you say can and will be used against you.

So what Miranda rights really address are statements, incriminating statements. The trigger for a police officer needing to read you the Miranda rights are two things. You have to be in custody, not free to leave, usually that means when you’re being handcuffed.And also being interrogated or being asked questions.

So in custody, handcuffed and being asked questions, that is the scenario under which the police would be required to read you the Miranda Rights.

If they don’t read you those rights what happens?

Well, if you haven’t said anything incriminating, then no harm, no foul. Nothing happens. If on the other hand, you’ve made incriminating statements in response to interrogation type questions, and the officer has not read you Miranda rights at the time that you were placed in custody, the remedy for that would not be that the case would be dismissed. The remedy would be that those incriminating statements could not be used against you in court.

And so the remedy isn’t really dismissal, it’s actually suppression of any incriminating statements.

So sorry to be the bearer of bad news, but not reading Miranda in and of itself is not going to get your case totally thrown out. It looks like I’ve got a couple more questions. These look like they relate to New York DWI charges.

Can a DWI charge in New York be reduced to a lesser offense like a DWAI or driving while ability impaired? And what factors would influence the possibility of that reduction?

So that’s a good question. In New York, we have levels of offenses. We have a standard regular first offense DWI, a misdemeanor charge in New York.

It is a criminal charge and it will add to a person’s criminal record. We also have a lesser offense called a DWAI or driving while ability impaired rather than intoxicated. And this offense is a violation and not a crime and would not give someone a criminal record. It’s possible to be found guilty of a DWAI, even if one blows under the legal limit.

So 0.05 to 0.07 could still be a DWI. But it’s also a pretty common scenario that one is charged with a misdemeanor DWI, even with a blow of over 0.08 and their case is eventually reduced to a DWAI.

And so what is the likelihood of that happening? There’s a bunch of factors that play in. Is it the person’s first arrest? Are there any aggravating factors like an accident? For example, things like that would play into it.How the person behaved? Were they horrible to the officers? Is there anything particularly out of the norm in terms of what happened?

In most areas of New York, the biggest factors that a prosecutor is going to look at when they’re determining how to craft and offer are a few things.

The level of the reading, so the BAC, blood alcohol content, in the case, whether or not there’s a refusal and whether or not there’s an accident. If your case ticks those boxes, then many of the times they will not make an offer to reduce that charge from a misdemeanor to a traffic infraction.

Generally speaking, if you have a reading of 0.14 or higher, the state will not offer the reduction. If you refuse to submit to a chemical test, that’s another box ticked where they will not consider reducing that charge.

Lastly, if a case involved an accident, most of the time the state will not consider reducing that charge. It’s important to say this does not mean it is impossible to get the state to reduce the charge from a DWI crime to a non-criminal offense. What it does mean though is that it’s unlikely to be the offer out of the gates and it’s likely to require a lot of effort.

It’s likely to require some litigation. It’s likely to require some inroads to be made in your case as it goes forward and is litigated through the courts. It’s likely to require your attorney to be able to poke some holes in some of the state’s evidence or point out a discovery issue or perhaps be able to put together a mitigation packet about you and your character and who you are as a person.

So it’s not to say that it’s absolutely impossible to get that reduction, but it’s much less likely to be the out of the gate offer, and it’s much more likely to require a lot of work on behalf of your attorney and maybe even you to try to get there.

In New York, what are the consequences of refusing a chemical breath or blood test and how does that impact the outcome of a DWI case?

So in New York, we’ve got two separate tracks that’ll go along at the same time. A person would have a DWI case in criminal court and if they refuse to submit to a chemical test, they will have a companion refusal case that will be ongoing at the Safety Hearings Bureau of the DMV. Those cases are linked, but they are different. In New York, a first offense refusal would result in a one year revocation of a person’s ability to drive. It’s important to understand that there’s a real complex interplay between refusal and DWI and maintaining your ability to drive. And I won’t get into it here ’cause it’s super deep. Maybe we will go into that in a different video at another time.

But suffice it to say that going with an attorney who really understands that interplay is important if you need to keep driving, because refusal can make it harder for the state to prove their case beyond a reasonable doubt on the DWI because they don’t have a number.

And so it’s less evidence they have. But on the other hand, if driving is important to you, it’s very, very, very important that you and your attorney understand the role that the refusal plays and the DWI charge plays in getting you driving again because it’s possible to win the battle and lose the war. Meaning it’s possible to win your DWI case but if you lose your refusal hearing at DMV, you would then be unable to drive with no ability to get a conditional license.

So if driving is important to you, it’s very important that you and your lawyer speak about that, strategize about that and really talk about the strategy, not just to win your case, but to get the best possible outcome that keeps you functioning.

So the consequences at that Motor Vehicle Commission hearing, would be a one-year license loss, even on that first offense. And again, you’re gonna have that separate hearing. If you were found guilty of that, there would be surcharges from the DMV as a result.

There are monetary penalties as well. Interestingly in New York, the same is true of breath and blood, whereas in some states, like New Jersey, a person has the right to refuse a blood test without consequence. In New York, a refusal of a blood test will put you in the same position as refusal of a breath test.

Anyway, these are very specific, intricate hearings that it’s important that your attorney understands how to kind of get through them with the best impact. There’s a lot of really strange rules at Motor Vehicle Commission hearings and it’s a strange animal in terms of the type of hearing that it is to get the best possible result for your client.

You really need to strategize about that and think about it before you just jump into that Motor Vehicle Commission hearing. I know that some attorneys believe in waiving that hearing.

I personally do not believe in waiving that hearing. I think you’re better off having it and you never know. Those hearings sometimes get won even when you expect to lose them. So it’s definitely worth going ahead and having those hearings. So that’s all the questions that I have on my plate at the moment. I hope this was useful and valuable if you or a loved one is facing a DUI, a DWI and incidentally, just before I go, let me speak to that ’cause I know I have interchanged those words a lot today.Where I practice, there is no difference between DWI and DUI. The statutes can be written as DWI, but in terms of the lingo it’s not as if there’s a separate charge for DUI and it’s different than the charge for DWI.

I know in some states that might be different, there might be a difference between intoxicated versus under the influence. But at least here in New York and New Jersey, you’ll hear people say them rather interchangeably. So it’s important to know that too. And that’s, hopefully a little tip as well.

So that’s all the time I have. Thank you so much for being a part of this. I hope to answer more of your questions in the future, and I hope that this has been helpful.