Marijuana nursery. Photo: Shutterstock

Legalization of adult recreational marijuana use in New York—something that’s now on the table with the shift in control of the state Senate—could alleviate a strain on the state’s criminal justice system for low-level drug charges.

But it could also present challenges to law enforcement officers tasked with keeping intoxicated drivers off the roads.

That’s because, unlike other aspects of legalization, measures to evaluate an individual’s level of intoxication when assessed by a police officer and then charge them with a crime have not been discussed to the same extent as other aims of the legislation.

That changed this week when Sen. Todd Kaminsky, D-Nassau, held a roundtable discussion with attorneys, law enforcement, and other stakeholders about the challenges of keeping roads safe while also allowing marijuana to be legalized for adult use.

Kaminsky said during an interview on Thursday that one big takeaway from the event was that the conversation on how to prepare law enforcement for the consequences of legalization needs to happen alongside negotiations on other aspects of the issue.

“We have a long way to go in our state to make sure we have safe roads if marijuana is made legal,” Kaminsky said. “Certainly, we don’t want to have the sales start occurring before the law enforcement is ready.”

The issue is expected to be part of Gov. Andrew Cuomo’s executive budget proposal, which he is set to present to state lawmakers and the public on Tuesday. If it’s to be included in the state budget, Cuomo and legislative leaders will have to negotiate a plan for legalization by the end of March.

If New York legalizes marijuana for adult recreational use, it will join 10 other states that have already done so since 2012.

Steve Epstein, a founding partner of Barket Epstein Kearon Aldea & LoTurco, said in an interview that lawmakers should include in those talks a plan for training law enforcement officers to recognize and possibly even test when a driver is suspected to be impaired by marijuana.

“What you’re going to be able to do now is take some of the funds raised from the taxes and the selling of the marijuana to train law enforcement officers to detect driving while ability impaired by marijuana offenses,” Epstein said.

Kaminsky said funding will be a big part of the transition, especially when it comes to law enforcement. Not all officers in New York are trained to definitively detect when someone is impaired by drugs, for example. The state Department of Health has projected revenue from legalizing marijuana could range anywhere from $248.1 million to $677.7 million annually.

“The resources that are needed for law enforcement to properly patrol the roads to deter and catch those driving while high is immense,” Kaminsky said. “Right now in New York [state] we only have 250 drug recognition experts who are trained after an intensive course to be able to testify in court that someone was under the influence of marijuana while driving.”

There are also specific challenges that come with detecting when someone is impaired by marijuana and prosecuting that individual on a related offense, said Deena Ryerson, Traffic Safety Resource Prosecutor for the state of Oregon, which legalized marijuana in 2015.

Ryerson, speaking at Kaminsky’s roundtable, said implementing sound policy to prosecute marijuana-related driving offenses is difficult because of how the drug works. Instead of remaining in the blood, like alcohol, the active ingredient in marijuana travels out of the blood over time and into different parts of the body. That creates a challenge for officers to test someone’s marijuana intoxication and present that evidence in court, Ryerson said.

“There is never going to be one number that correlates to impairment the same way that alcohol does in the blood,” Ryerson said. “The problem for us in law enforcement is that we can’t give jurors that number.”

That’s compounded by the nature of different strains of the drug, Ryerson said. Because some strains of marijuana are stronger than others, it’s difficult to measure how long it’s going to impair someone and how quickly it will move from the blood to brain tissue. A blood test might be able to show half the story, but there’s been little research on the issue, she said.

“The studies are lagging far behind on how long it’s going to impair a person,” Ryerson said. “The problem is that it’s not one-size-fits-all.”

Oregon is currently working on a pilot program to introduce saliva testing in the field for officers to detect the presence of marijuana quickly and with relatively accurate results. Epstein predicted that New York will take a similar approach in training its law enforcement officers on road safety following legalization.

“You’re going to see more and more use of saliva testing in the field with somebody to detect who’s smoked marijuana,” Epstein said. “It’s a good screening device. It’s simple, it’s easy to use, it’s relatively inexpensive. It’s easy to train police officers and the test can then be sent to a lab for confirmatory testing because it’s susceptible to false positives.”

There are also a few setbacks that prosecutors and defense attorneys will face if marijuana is legalized in New York. Epstein, who specializes in litigation related to driving while intoxicated, wants to see lawmakers create a new low-level charge for driving while impaired by marijuana that’s similar to someone accused of driving while impaired by alcohol.

A defendant who’s accused of driving while intoxicated can currently plead down that charge to a traffic violation of driving while impaired rather than a misdemeanor. There’s currently no similar option for someone accused of driving while impaired by drugs, Epstein said.

“You are going to see an increase in the number of people arrested for DWI,” Epstein said. “If there’s no charge to reduce them to, to plea bargain them to, then those cases are just going to clog up the court system.”

Epstein argued that it’s not uncommon for prosecutors to offer defendants the lesser charge when it’s their first offense for driving after consuming alcohol. The same should be true for marijuana-related driving offenses, he said.

But prosecutors in New York may also struggle with how, exactly, to charge someone with driving while impaired by marijuana if they can’t prove what drug the person has used. Mary Tanner-Richter, a traffic resource prosecutor with the Albany County District Attorney’s Office, said law enforcement officers are not allowed to collect a blood sample from a driver if they refuse to give one unless someone is seriously injured or killed.

If there’s no evidence proving the person has used a specific drug and no test to show they are under the influence of marijuana, the individual will likely avoid charges, Tanner-Richter said.

“If they don’t tell us what they’re taking, if we don’t have evidence at the scene … then we’re out of luck,” Tanner-Richter said. “So, we may be letting an impaired driver who is endangering everyone on our roads free because we’re locked into this [law].”

Kaminsky suggested the law could be amended by creating probable cause to obtain a warrant for a blood sample if a law enforcement officer suspects an individual of being impaired by marijuana, regardless of whether there’s been a serious injury or death.

“The law has to catch up to both the new technology and the increase in the number of people who are going to be driving under the influence,” Kaminsky said.

Lawmakers will begin to hold hearings later this month on the state budget, including the legalization of marijuana in New York. A final spending plan is due at the end of March.


Cuomo, Legislative Leaders Renew Support for Child Sex Abuse, Criminal Justice Measures

NY Lawmakers, Attorneys Propose New Ethics Watchdog Modeled on Judicial Conduct Monitor

Voting Reform Among Top Legislative Priorities for NY Lawyer Groups