When the general election took place in early November, New Jersey voters had polarized opinions about candidates. But one thing that a surprising percentage of voters seemed to agree on was that recreational marijuana should be legal. With the votes counted, it is now up to the state legislature to determine just what legalization and regulation will look like.
Unfortunately, there are likely to be some controversial discussions about certain aspects of regulating marijuana use – particularly when it comes to allegations of impaired driving. Unlike alcohol, which is easy and quick to measure “in the field,” it is more difficult to test for evidence of marijuana in the body, and even harder to determine when it was ingested and at what concentration an individual becomes impaired.
Impairment and concentration vary by person
With alcohol, someone who has a blood-alcohol concentration of 0.08 percent is considered legally drunk even if they were observed driving in a safe manner. People can be convicted of drunk driving with a lower BAC, but prosecutors must usually show that their ability to drive was hindered by alcohol. Alcohol also leaves the body at somewhat predictable rates, making it easier to determine how long ago a person consumed it.
Marijuana is different. THC stays in the body long after the high wears off. And because people all process intoxicants at different rates, there isn’t really a concentration threshold that could definitively show that a person is or isn’t impaired at the time they are pulled over.
In states where marijuana use is patently illegal, any detectable amount of THC in a driver’s body could lead to impaired driving charges. Because marijuana will soon be legal in New Jersey, however, a different standard of evidence is needed. This leads to the second controversy: the use of so-called drug recognition experts.
Relying on the opinions of ‘experts’
Drug recognition experts, or DREs, are law enforcement officials with additional training in how to identify drug impairment in suspects. They examine behaviors and physical characteristics like heart rate, pupil size and muscle tone in an attempt to spot the outward signs of drug impairment.
DREs are already used in New Jersey and other states, but it’s possible that New Jersey’s legalization bill could lead to much more widespread use of these specially trained officers. But there is a problem with investing in more DREs: There are many who believe that their methods aren’t all that scientific and that their conclusions can’t necessarily be trusted.
Just as a sober person can fail a field sobriety test because they have bad balance or medical issues, people can exhibit symptoms consistent with drug impairment for many reasons that have nothing to do with drug impairment. Yet DRE’s can provide “expert testimony” (without being required to prove their claims), and this testimony is often sufficient to secure a conviction for drug-impaired driving.
What you should know if facing criminal charges
Drugged driving (involving marijuana) will likely continue to be a controversial topic until or unless a more scientific test is developed. In the meantime, anyone charged with drugged driving should know that there is room to argue and to challenge the evidence – if you work with an experienced and skilled defense attorney, of course.