Legalized pot opens a can of prosecutorial worms

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Jul. 18—Cannabis legalization comes with many legal nuances states will need to negotiate. For New Mexico, these include how the state is equipped to handle a likely increase of cannabis DUIs, cannabis DUI testing and officer training surrounding cannabis.

When Colorado and Arizona legalized recreational cannabis, the two states saw an increase in impaired drivers, Capt. Micah Doering, district 10 commander with the New Mexico State Police, said. He added that, when Colorado legalized pot, he saw an increase in cannabis DUIs and crashes in the northwest corner of the state.

Doering, based out of Farmington, is an instructor in the state police's Drug Recognition Expert program for officers, he said. Currently, there isn't a threshold for cannabis impairment like there is for alcohol, he said.

For alcohol, a person is legally considered impaired if their breathalyzer test comes back with a blood alcohol content of 0.08% or higher, he said. Since cannabis impacts everyone differently depending on a person's use and tolerance level, it's more difficult to establish these types of thresholds.

This is why it's important to have Drug Recognition Expert officers, Doering said, noting that these officers can help distinguish if a person is truly impaired by cannabis.

"There are those who use regularly and are far less impaired, or not impaired, with cannabis in their system," he said. "We need to treat people individually based on their personal impairment level, not just a number."

He said alcohol is more predictable in terms of impairment than cannabis. Someone who has never had cannabis before will be more impaired at a much lower level than someone who uses regularly, he said.

There are about 70 to 80 Drug Recognition Expert officers in the state, Doering said. He said he would like to see more participation in the program to help spread the workload and have more expertise at law enforcement agencies.

With legalization, New Mexico lawmakers also approved legislation that included $750,000 in funding to the New Mexico Department of Public Safety to help more officers get Drug Recognition Expert certification and roadside impairment tests.

At the Santa Fe Police Department, there are currently two Drug Recognition Expert officers on staff, Support Operations Capt. Anthony Tapia said. He said he'd like to have at least six such officers, giving the department one drug expert per shift.

"(It's) a difficult course to get officers into, especially with the legalization," he said. "We hope that the state of New Mexico will bring those courses locally, so we can send more officers to that type of class."

Tapia said he's spoken with Colorado agencies, which say they saw an increase of DUIs with legalization and expect that to be the case in New Mexico. He said he hopes people are responsible, and do not consume cannabis and drive.

As far as detecting whether someone is intoxicated, both Tapia and Doering said a standard field sobriety test is used for both alcohol and drugs. Officers will first look for erratic driving, bloodshot eyes, possible impaired speech and the smell of such substances as alcohol or pot.

Officers can still use the smell of cannabis in DUI investigations, just like they would with the smell of alcohol, the two officers said. However, officers can no longer use the smell of cannabis as a suspicion of illegal activity or to search someone's vehicle.

Things get a little trickier when chemically testing for cannabis impairment versus alcohol. With alcohol, officers can use a breathalyzer test to determine someone's blood alcohol content — but no such test exists for cannabis.

Currently, the main way for law enforcement to check for cannabis use is a blood test, judicial and law enforcement officials said. However, the test determines only recent use.

"Laboratory blood testing does not determine intoxication," David Morgan, spokesman for the New Mexico Department of Health, said via email. "It demonstrates exposure and possible intoxication."

The Department's Scientific Laboratory Division is responsible for testing for cannabis. The toxicology bureau tests blood for the presence of cannabis and cannabis metabolites, which can indicate recent use that may, or may not, cause impairment.

He said it's more difficult to test blood for active cannabis metabolites versus alcohol. It's also harder to extract from blood and requires a skilled forensic scientist to analyze the sample.

"Cannabis is more potent: blood concentrations are about 1,000 times less for cannabis versus alcohol for similar potential driving risk," he said in his email.

He said he doesn't know if there will be increased demand for cannabis testing with legalization.

However, defense attorneys say it's important to distinguish cannabis use from cannabis impairment.

"I think, with a lot of drugs, people just automatically think anybody that's using something is impaired," Chief Public Defender Ben Baur said. "There are all kinds of things that we take, with or without prescriptions, including alcohol and ... antidepressants, that actually do not impair people's ability to drive."

Appellate Defender Kim Chavez Cook with the Public Defender's Office said she thinks that what officers observe from the driver is more important than "any number on a piece of paper from a chemical test." With its current illegal federal classification, researching cannabis is still challenging.

There isn't a consensus among the scientific community on cannabis impairment like there is with alcohol, she said.

"(Cannabis) stays in your system for hours so, even once you've 'sobered up,' that number might still suggest that you would be impaired, but the fact is that you weren't," Chavez Cook said.

She added it's important to note arrest for a cannabis DUI doesn't necessarily equate to conviction. She noted the increase in cannabis DUI arrests in Colorado with legalization, but said there wasn't good data to show how many of these arrests led to a conviction.

Dianna Luce, 5th Judicial District Attorney and president of the New Mexico District Attorney Association, says this speaks to the importance of drug recognition officers. She said that because there isn't a good way to chemically test for impairment, cases will likely depend on officers' observations.

"The question is, how will they be investigated? And what will be the quality of the case that comes to a prosecutor's office for review? Then, will that lead to a conviction, or not enough evidence, as deemed by a judge or a jury?" Luce said.

Due to a 2016 U.S. Supreme Court Case, Birchfield v. North Dakota, officers can no longer require a warrantless blood test on DUI cases, Luce said. In New Mexico, a person arrested for a misdemeanor DUI is not required to do a blood test. The person still must comply with a breathalyzer test because that is considered less invasive and falls under implied consent.

To get a blood test, the person must willingly comply with officers or, in a felony DUI case, officers must get a search warrant. This leaves one more piece of evidence prosecutors won't be able to use in cannabis DUI cases,Luce said.

She said she's worried about public safety with a likely increase in cannabis DUIs and the limited number of drug recognition officers in the state.

Defense attorney David Foster said it's important to protect someone's constitutional rights to privacy when it comes to blood tests, as the Supreme Court ruled. He said the blood test evidence might also be confusing to a jury.

He added officers also shouldn't be able to use the mere presence of cannabis in a vehicle as indicative of consumption. He said it should be treated like an unopened alcohol bottle because even an old, half-consumed cannabis joint in a car doesn't indicate recent use.

Foster said he believes prosecutors need more education on how cannabis metabolites can affect someone; without it, he fears too many people will be improperly charged.

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