Driving while stoned – will it be a problem?

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State officials will try to get ahead of the potential problem before cannabis legalization moves into full swing next year.

New York earlier this year became the 16th state to legalize adult-use cannabis despite concerns from some law enforcement agencies that traffic crashes could increase if more people get behind the wheel stoned.

There are various studies out there that come to different conclusions.

Some studies concluded that traffic crashes did increase in the early years of states that legalized cannabis, such as Colorado.

For example, a recent American Automobile Association survey found that people who use both cannabis and alcohol and get behind the wheel are much more risky drivers.

“They’re more apt to run a red light or be aggressive on the road or speed,” said Elizabeth Carey, a spokeswoman for AAA Central and Western New York.

Other studies concluded the increase was not significant and leveled off once the program got past the early obstacles of educating the public that driving while stoned is a crime and would not be tolerated.

“There are a number of different studies out there that show different things,” said Erie County District Attorney John Flynn, who said he already has had cases in which people got charged with impaired driving for using cannabis.

He believes the education component of the legislation will be critical. The state has set aside 20 percent of the tax revenue for drug treatment and public education. That’s at least $70 million of the $350 million per year the state estimates it will collect from the various cannabis taxes.

But just as important, Flynn said, will be developing the technology that can detect levels of THC, the psychoactive ingredient in cannabis, at the roadside versus having to draw blood at a police station that could be hours after the stop.

“They’re working on saliva ones right now where they take your saliva,” Flynn said.

“Right now, it’s not perfect. I do anticipate in the future we’re going to be able to do that, but until we get there, what do we do? The only answer to your question is that we need to fund more drug recognition experts.”

Drug Recognition Experts, or DREs, are not new. They often tackle DUI cases and conduct comprehensive evaluations of the drivers at the jails.

Kyle Clark, project manager for the International Association of Chiefs of Police and a certified DRE, said the evaluations are a 12-step process to help identify the substance that has impaired the driver. The process includes breath tests, interviews of the arresting officer, screening for medical issues, eye exams, checking vital signs and blood or urine testing. 

Clark said DREs account for 1% of all police officers in the nation.

But in New York, DREs account for one-half of a percent, or half the national average, Clark said.

“And if you look to other states who’ve also decriminalized or legalized marijuana in some capacity, we should see there’s going to be a greater demand for DREs, so there is going to be a shortage,” he said.

State Assembly Majority Leader Crystal Peoples-Stokes, D-Buffalo, was a top proponent of cannabis legalization.

She said the legislation sets aside funding – more than $40 million – for training more DREs and it mandates the state Department of Health to conduct a study on methods and technologies to detect cannabis-impaired drivers.

In fact, there is the potential that New York could be a leader in this research that would result in crafting regulations to certify a specific test or device that can detect the presence of cannabis in drivers.

Peoples-Stokes has doubt that the state would see a sharp rise in cannabis-related vehicle crashes.

After all, just because the state did not legalize cannabis does not mean people did not partake in it. In fact, one study found that New York City residents smoked more cannabis than any other city in the world.

“We live in a reality now where New York State is the largest market of underground marijuana in the country,” Peoples-Stokes said.

“And so if law enforcement can’t identify increases in impairment based on those dollar amounts, then I’m not sure how they can suspect that it will be different.”

Mike Taheri, a defense attorney who specializes in impaired driver cases, said prosecutors have a much tougher time proving a motorist was driving while impaired on drugs.

“In an alcohol-related case, if a person takes a chemical test of a blood test, they have a number: .08 [Blood Alcohol Content],” Taheri said.

“Here, you’re not given any quantitative amount, but you have to rely on what they call drug recognition experts.”

Taheri also said that cases of people being charged with driving under the influence of cannabis are not bogging down the courts now.

“These cases are not frequent fliers in the system,” he said.

“I do think one of the reasons are there are proof problems.”

Regardless, it remains illegal to drive under the influence of any drugs, including cannabis. The odor of marijuana can be used as a reason to suspect a driver is under the influence, but law enforcement will continue to have the challenge of proving impaired driving until they get help from technology.

Peoples-Stokes said therefore the law required a study of emerging technology that can help law enforcement nab drivers impaired on cannabis.

“I think we’re ready to do the science,” Peoples-Stokes said.

“We have some of the best research institutions in the country, in the world, right here in the great state of New York. We can do the science, do the innovation and create some sort of tool that our law enforcement will be able to use on the road.”

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