Prosecutors, federal officials push to close loophole in New York law that allows drugged driving

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    NEW YORK, New York (WCBS) — It’s illegal to drive drunk. No exceptions.

But in New York, at times, a driver can be seriously impaired by a drug, and yet face no consequences.

CBS News New York Investigates is exposing this troubling loophole in state law and went digging for answers.

A recent incident on the Long Island Expressway

During a late July rush hour on the LIE, an officer is heard on police body-cam video trying to question a truck driver. Police said he hit the median, crossed all lanes of traffic and crashed. Since the case is still open, we’re not identifying the driver.

Officer: “No drinking today, right? Alright, so what did you do?”

Driver: ” … man.”

Officer: “You gotta stay with me, man.”

Driver: “I gotta get off.”

Officer: “No, no, you gotta stay with me.”

Driver: “I’m trying. I’m trying.”

Officer: “I know you’re trying. I know you’re trying. So what did you take?”

Driver: “I’m really sorry.”

Officer: “What did you take? Bro, it’s not my first day. What did you take? Tell me.”

The driver never answers that question. Repeatedly, he appears to doze off.

Driver: “…yes.”

Officer: “Where do you work out of? Where’s the truck going?”

The officer then administered a field sobriety test. In court records, he alleged the driver became responsive when he received Narcan, medicine that reverses an opioid overdose.

The man was charged with driving while impaired by drugs, but CBS News New York Investigates found out six months later, the charge was dismissed.

For the charge to stick, the officer has to name the exact drug ingested, and the drug has to be on a list created by lawmakers.

If a driver refuses to name what drug they’re on, or if they refuse a toxicology test, they cannot be charged with drugged driving. Also, if the driver’s drug of choice isn’t on the list, it doesn’t matter how impaired they are. They cannot be charged with drugged driving.

CBS News New York Investigates did speak with the driver in that case. He said he was suffering from heat exhaustion. He is still facing a drug possession charge.

Kristian Roggio’s tragic story

Frank Roggio left New York years ago, but he met with CBS News New York Investigates briefly, next to his old home, to talk about his daughter, Kristian, who was in a car with friends in Brooklyn and was almost home when they were hit.

“She went across the street, she spoke to her brother, jumped into the car, and they just pulled out from the curb,” Roggio said. “His vehicle came across the double-yellow line. Head-on collision, right here.”

Roggio recounted other things he remembered from that day.

“Oh, I remember her … bleeding from every opening — eyes, ears, nose, mouth, as she lay there,” Roggio said. “Twenty years later and it’s still just as hard.”

Kristian Roggio was a go-getter. But she is now gone longer than she was here.

But she’s not forgotten by friends or her high school love.

“He celebrates Krissy’s birthday every year,” Roggio said. “It wasn’t just something in passing. It was something for life.”

Prosecutor, federal official at odds with New York’s list

In 2004, Maureen McCormick, a prosecutor in the Suffolk County District Attorney’s office, was assigned to the case. It was alleged that the driver who hit Kristian Roggio had ingested “Dust-Off,” a substance not on the list.

“He was intentionally pressing the little stick from the can against his teeth and huffing it in, when he lost consciousness,” McCormick said. “We didn’t have the drugged driving charge.”

Prosecutors lost that specific charge and then the entire case. The driver was acquitted. McCormick blamed the loophole, and has been trying to close it since.

Last year, she urged lawmakers to pass the “Deadly Driving Bill,” which broadened the definition of a drug to include any substance that impairs.

“What I know is that it wasn’t moved,” McCormick said.

National Transportation Safety Board Chair Jennifer Homendy was asked if she wants New York to get rid of the list.

“That’s right. Get rid of the list,” Homendy said. “In that situation, people can drive impaired and it’s not illegal. That’s a problem.”

CBS News New York met with Homendy at her office in Washington D.C. She said she wants the loophole closed, too. It exists in just three other states — Alaska, Massachusetts and Florida. Twenty months ago, she sent a letter to New York Gov. Kathy Hochul, but says she still hasn’t heard back.

“It’s really frustrating and heartbreaking,” Homendy said. “Our recommendations are issued because somebody died, somebody died, and that means somebody is going to die again.”

CBS News New York Investigates requested an interview with Hochul. In response, the state Department of Motor Vehicles sent a statement, saying the governor’s top priority is safety, and that she’s proposing to lower the bar to permanent license forfeiture if a person has multiple alcohol- or drug-related driving convictions.

But critics say the existing loophole prevents convictions.

Frank Roggio said he doesn’t think it will ever change.

“My daughter to them is insignificant,” he said.

As for the driver who was acquitted, prosecutors say when you charge someone with drugged driving, there’s a presumption that the impairment caused them to, for example, cross into oncoming traffic. But no charge means no presumption. In this case, the jury seemed to have believed the defense’s argument that someone else in the car moved the steering wheel. CBS News New York Investigates did attempt to reach out the driver, but was not successful.

CBS News New York Investigates reached out to leadership in the House and Senate, but hasn’t heard back.

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