As we approach legalized recreational marijuana in New York state, it is important to consider its impact on the prosecution of driving under the influence of marijuana cases in the criminal justice system.
Currently, district attorneys in New York have the discretion to reduce driving while intoxicated by alcohol cases, a misdemeanor, to driving while impaired by alcohol, a traffic infraction. This allows individuals charged with such offenses to avoid a criminal record, and has the benefit of reducing the costs of such prosecutions since it allows for many cases to be resolved by a plea rather than a trial.
There currently is no driving while impaired by marijuana infraction because until now the use of marijuana itself was illegal. With the legalization of marijuana, the legislature must seriously consider amending Vehicle and Traffic Law 1192 to include a traffic infraction for the operation of a motor vehicle while impaired by marijuana.
Without doing this, courts will become clogged with prosecutions, and individuals charged with driving while impaired by marijuana will still suffer the same consequences as found in the criminal justice system before legalization.
Steven B. Epstein, Esq.
Founding Partner and Head of DWI and Vehicular Crimes Litigation, Barket Epstein Kearon Aldea & LoTurco, LLP