Proposed bill would close New York's drugged driving loophole
A legal loophole in New York allows drugged drivers to escape accountability until the damage has already been done.
In New York, to charge an impaired driver, police must name the exact drug ingested and confirm it's on a pre-existing list. If a driver refuses to name the drug or to take a toxicology test, they walk. They can't be charged or placed into treatment until tragedy strikes.
Families of people injured or killed by an impaired driver have been asking lawmakers to close the loophole since 2007.
CBS News New York investigator Mahsa Saeidi has been trying to talk to state leaders about it for months and has been ignored, so she went to Albany to get some answers.
Bill would expand definition of a drug in New York state
Assemblyman Bill Magnarelli has proposed a bill that would align New York with 46 other states.
"We need to have people understand, you don't drive while you're impaired, I don't care what you're on, period," he said.
The proposal expands the definition of a drug to include any substance that impairs.
"It's just about impossible in many cases to determine exactly what the drug is," he said.
Prosecutors say video of interactions makes it difficult for police to frame the innocent.
"There haven't been these problems that have been raised in 46 other states, so why is New York state holding this up and allowing our citizens to be maimed and killed?" Magnarelli said.
Gov. Kathy Hochul has said she wants the loophole closed. The question is will she be able to convince the Speaker and Senate Majority Leader, who want the status quo?
Speaker Carl Heastie addresses drugged driving loophole concerns
Since September, Saeidi tried to speak with the leader of the Assembly, Carl Heastie. She called, emailed and sent messages and tweets to the speaker, his office and staff.
For six months, those attempts went ignored.
The day before a drugged driving rally in Albany, Saeidi found the speaker at the Capitol.
He initially ignored Saeidi's questions and told her to check with his team, but he came back a few minutes later.
"So I wanted to talk with you to see what your concerns were about this loophole," Saeidi said.
"I think because that because there's no set technology that says, that can determine when someone was, if we're talking about cannabis, when someone was smoking weed. You know, that's the thing. Like, you have a breathalyzer if someone's been drinking alcohol," Heastie said. "I'm also concerned that, particularly, you know, communities of color get overpoliced, and I just don't want this to be something that opens the door to overpolicing."
"So this does not impact who you pull over or how you pull them over. This is only about getting people who are severely impaired off the road. And officers are trained, when someone is–" Saeidi said.
"I know what the bill does. I know very well what the bill does. I'm saying to you, it's based off of a police officer's interpretation," Heastie said.
"So until there's a breathalyzer type of test, you do not support closing this loophole?" Saeidi asked.
"I'm not saying that. You asked me what my concerns were, I answered your question," Heastie said.
The speaker also expressed concerns about solely relying on an officer to determine impairment without a test on scene.
How to determine impairment from drugs
Under current law, if an officer smells marijuana when they pull someone over and the driver is exhibiting signs consistent with marijuana usage, the driver can be charged for drugged driving.
Magnarelli's law, however, wouldn't impact marijuana, it's about other substances that officers can't identify.
So is it possible to give a driver a test to determine if they are on any of those other substances?
"Just this idea of a you know, an omnibus breathalyzer that can test every drug under the sun, it's just kind of silly," forensic scientist Michael Archer said.
He says drugs are different than alcohol, and from each other.
"When they give somebody a breathalyzer, they calibrate it right on the spot," he said. "If there were this magic breathalyzer for 30 different drugs, that would be 30 pre-calibration tests before they even ran the first test."
Families fight to pass bill to protect innocent lives
This month, families returned to Albany in support of Magnarelli's bill.
One month before his high school graduation in 2007, Migdalia and Henry Rivera's son Alex was killed by a drugged driver.
"And being here today brings that memory, when I had to walk into that hospital and see my son in a bed, dead in a bed, full of blood," Migdalia Rivera said.
Alex Rivera's friend was also killed in the crash. Monroe County prosecutors say the same driver had been involved in two previous crashes while high.
"This law needs to be passed immediately. It's a righteous law," Henry Rivera Sr. said.
"It's emotional to see so many people here trying to fight for something that it's our right, for something that we have lost and that they can't acknowledge it, they can't see it," Migdalia Rivera said.
"We're always thinking what Alex would've done if he was here. Where would he be now? Would he have kids? Would we have been grandparents? That's what I think of, anytime I speak, and I'll do it until my last breath so my son's life is not in vain, and some innocent person's life is not taken out there," Henry Rivera Sr. said.
