If you drive while you are intoxicated in New York, it will not matter if you’ve been drinking alcohol or smoking pot. If you are convicted of DWI – driving while intoxicated – in this state, the penalties are essentially the same, and those penalties may be quite harsh. If you are charged with DWI, it is imperative to contact an experienced Westchester County DWI lawyer immediately.

Although the laws regarding the possession of marijuana by adults continue to be liberalized almost everywhere in the U.S., concerns are also growing about drivers who smoke marijuana before or as they drive.

In fact, as more states make pot legal for adults for both recreational and medical purposes, more drivers across the nation are being arrested for marijuana-related DUI and DWI charges.


When alcohol is involved, if a driver measures a blood alcohol content (BAC) level at or above 0.08 percent, that measurement legally establishes that the driver is intoxicated. But how much marijuana has to be “in your system” for you to be considered too intoxicated to drive?

While pot may be less harmful in a general sense than some other intoxicants, the experts say that additional studies are needed to understand pot’s effect on motorists and their driving ability.

Some states set a marijuana blood content limit for drivers. In the states of Washington and Colorado, for example, the limit is five nanograms of tetrahydrocannabinol (THC, the active ingredient in marijuana) per milliliter of blood.

In these states, that measurement legally establishes that a driver is intoxicated. Other states, like New York, hold to a zero tolerance policy regarding marijuana and driving.


The problem with both approaches – the zero tolerance approach as well as setting a blood content limit – is that a positive test for marijuana does not prove that someone is intoxicated.

That’s because residual THC remains in someone’s system for days and weeks – long after any sense of “being high” has faded away.

Nevertheless, for now, zero tolerance is the law in the state of New York.


The penalties for a driving while intoxicated conviction – whether the intoxicant is alcohol or marijuana – vary depending on the defendant’s previous DWI convictions, if any:

1. For a first DWI conviction in New York, an offender can potentially be fined from $500 to $1,000, sent to jail for one year, or both, and the offender’s driver’s license can be suspended for up to six months.

2. For a second DWI conviction in a ten-year period, an offender can be fined up to $5,000 and sent to prison for up to four years, or both, and the offender’s driver’s license can be suspended for up to a year; a court may also order alcohol or drug education or treatment.

3. For third and subsequent DWI convictions within a ten-year period, an offender can be fined up to $10,000 and sent to prison for up to seven years. The offender’s driver’s license will be suspended for at least one year.

A DWI penalty in New York can be “enhanced” – that is, harsher – if a minor was a passenger in your vehicle when you were stopped for suspicion of driving while intoxicated.

You should also understand that in New York, if you are driving with marijuana in your vehicle, the possession of marijuana is still illegal under both federal and state law.


If you are stopped and arrested for DWI in New York, and if the intoxicant is marijuana, you must reach out to a DWI lawyer immediately for the legal advice and defense representation that you are very much going to need.

Your lawyer will defend you in a marijuana-DWI case in much the same way a lawyer would defend you if the intoxicant were alcohol:

1. The actions of the police officer or officers who stopped and arrested you will be scrutinized. If your rights were violated, it is possible that the driving while intoxicated charge could be dismissed.

2. If your blood or urine was tested for THC, your attorney may challenge the test results or the way the test was administered.

3. If the arresting officer testifies, your lawyer may challenge the testimony.


Cannabis is not the sole intoxicant drug raising safety concerns. Motorists right here in Westchester County have been stopped while driving under the influence of cocaine, heroin, PCP, opioids, and even LSD.

Many over-the-counter drugs and legal prescriptions can also impair someone’s driving ability. In fact, drugged driving is a rising threat to everyone on this state’s streets and freeways.

Still, if you are accused of driving while intoxicated, the state must prove your guilt beyond a reasonable doubt in order to convict you, and your own attorney will work to cast doubt on the state’s evidence against you.


If there is no way to have the charge dismissed, and you are innocent, your attorney will take your case to trial and ask a jury to find you not guilty.

However, in some DWI cases, the evidence will be overwhelming, and a conviction will be inevitable. In such cases, a good DWI attorney will negotiate for the best possible plea agreement and alternative sentencing arrangement.


Finally, here are some basics to remember if you are stopped by the police while you’re driving:

1. After you’ve identified yourself and presented your license and vehicle papers, be cooperative and polite, but be smart, too. If you’re asked further questions, simply say something like, “Officer, I would very much like to exercise my right to remain silent.

2. While you should obey a police officer’s orders, do not verbally consent to a search of your vehicle. Never physically resist the police. Always present yourself as friendly and cooperative, but insist on your rights.

3. If you are arrested for DWI, contact an experienced DWI attorney, and do not try to be your own lawyer. Too much is at risk, and good legal help is your right. If you’re charged in New York with DWI, exercise that right and get that legal help – immediately.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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