Traffic Lawyer’s Advice: Three Things You Must Know Before Going to Your DWI Alcohol Evaluation

It is likely that you will have a drug/alcohol screen/evaluation for your arrest for DWI for the following three reasons:

1. Under NYS law, an alcohol/drug screening and evaluation is mandatory if your BAC (blood alcohol concentration) at the time of your arrest (as measured by the breath test) was .15 or higher.
2. The results of an evaluation can prove helpful to your lawyer for plea bargaining purposes to demonstrate that your conduct on the night of the arrest was a one time event, and not a pattern of alcohol abuse behavior.
3. The alcohol screening/evaluation is part of the DMV's DDP (Drinking Driver Program) and must be done to obtain a conditional driving privilege. The program's completion is predicated upon a follow through with any treatment recommendations made by the OASAS (Office of Alcohol and Substance Abuse Services) certified provider. They have an excellent website to locate providers in your area, just put OASAS into Google.

My advice before having your alcohol screening/evaluation:

1. Be prepared to answer questions about your drug and/or alcohol use.

Read through the MAST (Michigan Alcohol Screening Test) to have an idea of the type of questions that will be on the screening forms. Within the DDP program the alcohol screening is a questionnaire/form to determine if you need an evaluation/assessment by a provider.

2. Be prepared to provide a urine sample for a drug screen.

NOTE: Drug screens are not drug tests. Screens are very general, fast, and inexpensive. They have a high sensitivity (show allot of false positives), and are not specific as to quality or type of drug. A drug test is very specific, and designed to qualify and quantify a certain drug. You may not have to provide a urine sample but why risk it. It is always better to expect to give a clean sample than to decline. I tell all my clients to avoid being around cannabis for at least four weeks prior to the test and other drugs for at least two weeks before the screen.

Many drugs both legal and illegal have a long half life (stay in your body for a long period of time). The way half life works is that every 7 days half the drug is left over after your use. After an additional 7 days half of the remaining half is left over- that is 1/4 left. After an additional 7 days, half of the remaining 1/4 is left- that is 1/8 of the original dose and so on. After 5 half lives 1/64 of the drug may be left- at this point it is likely that there will not be any clinical effect from the drug. This half life is dependent upon the frequency of the drug's usage, method of intake, length of usage, your tolerance to the drug, your fluid intake, your body size, your body fat, your metabolism, and the specific range that the drug testing uses to signify a “positive” for drug use. THC in particular is stored by the body in the fatty lipid tissue and are gradually released into the blood stream until cleared. For chronic users with a high body fat percentage, this process of elimination can take several weeks. Sometimes people on diets may be burning off fat, and releasing stored drugs (drugs stored in fat cells) into their urine.

The table below gives a guide to detection periods for many commonly used drugs:

Drug & Approximate Time Period of Detection

Alcohol 6–24 hours Amphetamines 2–3 days Barbiturates 1 day to 3 weeks Benzodiazepines 3–7 days Cocaine 2–5 days Euphoric (MDMA, Ecstasy) 1–3 days Marijuana (THC) 7–30 days (mild use - moderate use - frequent/chronic use)Steroids (anabolic) 14–30 days

Any prescription drugs not reported to the provider but that may show up in your urine will be suspect as drugs of abuse. Remember that second-hand cannabis smoke exposure can also cause you to fail a standard urine drug screen.

Some OTC (over the counter) medications can also trigger false positives on drug screens:

• Ibuprofen (Advil, Motrin) • Midol • Sudafed • Vicks Nasal Spray • Neosynephren • Ephedra and Ephedrine (often in diet products) • Vicks 44

If you are determined to be a drug abuser (having drugs in your system that are unreported, unprescribed, and/or illegal) you will get a treatment recommendation of 3-12 months time. This is usually a twelve step based group and/or individual program with a frequency of 2-3 times per week. This program is likely to include follow up drug screens, and an order to completely stay away from drugs and alcohol. Note: You are allowed to obtain one second opinion concerning your evaluation. This second evaluation is then the final one for the Court.

3. Be prepared to follow through on all recommended treatment, and evaluations because the Court is going to want proof of completion.

If you receive a CD (conditional discharge) from the Court this will be one of terms of that discharge. If you fail to meet the Court's conditions your case can be re-opened and your failure will be considered a violation of the Court's Order.

If your alcohol evaluation indicates a "no treatment recommended" that will often be helpful to avoid the prosecutor (Assistant District Attorney) recommending a term of probation as a condition of your final sentence. This report of No Treatment by an evaluator can also assist your attorney in getting a ADWI (Aggravated DWI) charge where your BAC was .18 or higher reduced to a "regular" DWI.

I hope that this article sheds some much needed light on the DWI alcohol evaluation process.