The breathalyzer has become the most well-known tool in the fight against drunk driving. But what about drugged driving? No single device has yet been created to test a person for all of the drugs that might impair a driver. Some field tests of saliva have been developed that test for marijuana, cocaine, and other drugs. But even if drugs are detected in a person’s system, the laws of many states do not currently have established standards for what constitutes “drugged driving.”

The standard for drunk driving is well-established across the country. All 50 states currently follow the .08 standard for drunk driving. If the person’s blood alcohol concentration is .08 or higher, the person is legally intoxicated and would be in violation of the law if he or she drove a car. New York goes even further, creating a lesser charge for DWAI (Driving While Ability Impaired) for .05 to .07 blood alcohol concentration. Even lower blood alcohol levels apply for drivers of commercial vehicles and drivers under age 21.

But while a person may be charged with DWI or DWAI on the basis of a breathalyzer test, no such standard exists for what level of concentration is unacceptable for drugs. This is true of all types of drugs–over-the-counter, prescription or illegal.

Fifteen states have “per se” laws, which mean that any detectable level of an illegal drug while driving is, by definition, a violation. Although that may sound like a good standard, it doesn’t take into account the fact that a driver may still have trace elements of a drug in his or her system long after the actual effects of the drug have worn off. It also doesn’t take into account prescription drugs, such as benzodiazepines (Valium, Xanax) or opiate analgesics (morphine, codeine), all of which could affect a driver’s abilities, even though legal. In New York, the many “controlled substances” that form the basis of a prosecution for DWAI-Drug are set forth in Public Health Law § 3306.

New York’s approach to drugged driving takes a broader approach, relying on a standard of whether the consumption of any sort of drug set forth in Public Health Law § 3306 impaired the driver’s ability to operate the vehicle. Because this is not a simple yes-or-no test, it’s important for anyone facing a charge of Driving While Impaired by a Drug (“DWAI-Drug”) to have an experienced attorney to help navigate the process and protect the driver’s legal rights.