Marijuana is legalized, but Rochester law enforcement officials note not everything surrounding pot is legal
Jun. 4—ROCHESTER — Just because Minnesota became the
23rd state to legalize some recreational use of marijuana,
doesn't mean people can get away with driving while under the influence.
While there will be some changes to which criminal cases will be investigated and prosecuted, when it comes to impaired driving, police will continue to do what they've done for years to keep impaired drivers off the road. Some are even raising concerns over a possible increase in drivers who are under the influence.
"It makes me sad that our society is willing to give up more deaths, serious injuries, minor injuries, and crashes in general just because a small element of our population willingly puts a foreign substance in their body and will then choose to drive," said Olmsted County Sheriff Kevin Torgerson.
Looking at other states like Colorado that legalized recreational use may give some insight into what might happen on Minnesota roads.
In Colorado, deaths involving a driver who tested above the legal limit for active THC increased 58% between 2020 and 2021,
according to the Colorado Department of Transportation.
Colorado legalized the recreational use of marijuana in 2012
but only began testing for drugs besides alcohol in 2019
.
According to CDOT,
10% of drivers convicted of a DUI had only THC in their system,
with alcohol being present in the vast majority of cases.
Law enforcement needs a reason, usually referred to as probable cause, to pull someone over, according to both the Olmsted County Sheriff's Office and the Rochester Police Department, which are following roughly the same procedure when it comes to investigating drivers for being under the influence of marijuana.
"When a person calls in an impaired driver it is viewed as a "make your case" type of incident, meaning the deputy usually looks for a moving violation before making the stop," Torgerson said, adding that things like a lit marijuana joint or an odor of marijuana emanating from the person or vehicle is cause to investigate further.
"The smell of marijuana will continue to play a significant role in developing reasonable suspicion when enforcing impaired driving laws," said Rochester Police Capt. Aaron Penning.
Once law enforcement has established probable cause, they have the right to ask a person to submit to a field sobriety test. If the test indicates impairment, a Drug Recognition Evaluator may be called to the scene to assess the situation and provide further guidance.
If, after all this, law enforcement believes the driver is impaired, the driver may be taken into custody and asked to submit to a urine or blood test, which will be sent to the Minnesota Bureau of Criminal Apprehension for lab testing.
"Until there is a roadside test accepted by the courts in Minnesota, this is the process we will have to follow," Torgerson said. "a roadside test could be several years away from permitted use on the roads by law enforcement and accepted by our courts."
Minnesota, much like California, does not have a legal limit of prohibited THC, the active ingredient in marijuana.
"The suspect's THC levels, driving conduct, and other signs and symptoms of impairment are used in the prosecution of marijuana-related driving cases," Penning wrote. "When a vehicle collision involves the injury of a person other than the driver, and the driver is suspected of impaired driving, the case is investigated as criminal vehicular operation."
RPD is also working on phasing out its use of K9s imprinted with the scent of marijuana to ensure their K9s are trained to only detect prohibited narcotics.
"As a public safety agency, we are concerned that an increase in the use of marijuana will have an effect on public safety as it pertains to the safety of our roadways. We want to ensure that the public understands the dangers of impaired driving, whether it's alcohol or marijuana. We will continue to diligently enforce impaired driving laws," Penning said. "The department will also work with members of the community to ensure the new legislation does not create quality-of-life issues within the community."
The law, signed by Gov. Tim Walz on Tuesday, May 30, 2023, will be enacted Aug. 1, 2023. Until then, RPD is waiting to determine what best practices are developed and is seeking guidance from both the Rochester City Attorney's Office and the Olmsted County Attorney's Office.
"We will also follow the recommendations for best practices developed by The Chiefs of Police Association and Sheriff's Association," Penning said.
So far, no state guidance has been handed down to either local law enforcement or county attorney's offices. The Minnesota Attorney General Office did not immediately respond to a request for comment.
"The Minnesota sheriffs will be in conference in June and are awaiting legal advice from our attorneys and will also seek advice from each county attorney before Aug. 1 as we begin to navigate the new norm in Minnesota," Torgerson said.
With the passing of this law, it becomes legal for
anyone over 21 to possess or transport up to two ounces of cannabis flower,
eight grams of concentrate and 800 milligrams of edible product and keep up to two pounds of cannabis flower at home. Prior to the law's passing, any person caught with those amounts would have been subject to felony-level charges.
So does this mean cops can partake in a joint or two after work?
"No, absolutely not. And continuous employment will also not tolerate marijuana use off duty," Torgerson said. "If any incident were to happen on duty like a use of deadly force and the inability to identify levels of impairment with marijuana, like alcohol, the simple presence would be enough to cause great concern to a person's ability to make sound judgment in a stressful situation and continue employment in our profession."
RPD is currently following the city of Rochester policy regarding off-duty marijuana use, which bars it and is seeking guidance from the city's Human Resources Office, the Rochester City Attorney's Office and the Minnesota Board of Peace Officer Standards and Training.
Though not much is changing as far as prosecuting those suspected of driving under the influence, current and former criminal cases may be affected, according to Olmsted County Attorney Mark Ostrem.
His office has been holding back on charging marijuana-only cases for the last several months in anticipation of legalization, and he anticipates any cases currently in the court system will likely be dismissed.
"I'm a little concerned about what's going to happen on Aug. 1. Some people might just go crazy and maybe there will be smoking in the streets," Ostrem said. "I hope not, but there certainly is going to be a lot of misunderstandings because the bill itself is huge. Who's got time to read that and understand that? I don't, and I've tried."
During his 2022 campaign, Ostrem said he was against the
legalization of marijuana
and warned that the state still doesn't have a way to test for marijuana on the road.
"Our objective in prosecuting drug crimes is to help people that are in addiction get past the addiction and get them some help," Ostrem said. "A lot of times criminal behavior goes with (addiction), whether it's driving offenses or assault offenses or burglaries, a lot of conduct is driven by drugs."
He also considers marijuana to be a gateway drug, saying that he's yet to meet someone in addiction that didn't start with marijuana.
There is research that suggests marijuana use is likely to precede the use of other drugs,
according to the National Institute on Drug Abuse,
but the institute notes an alternative to the gateway drug hypothesis is that people vulnerable to addiction may just start taking more readily available substances such as marijuana, tobacco or alcohol. The institute encourages further research on the topic.
"Not everybody that uses marijuana is an addict. I get that," Ostrem said. "But it's just ... I feel like we've thrown the door wide open to potential other societal problems."
Ostrem said he's concerned the Legislature moved at the pace it did when working this bill through the Senate and the House, citing the lack of THC limit for intoxication and the lack of roadside testing.
The bill authorizes $15 million over the next two years to help train law enforcement to recognize impaired driving under marijuana and for a pilot program to help develop an oral test.
Ostrem said while testing from BCA does give them a number to show the levels of THC in someone's system, his office relies 100% on officers' observations for prosecuting those cases.
Colorado's limit for Delta 9 THC in a driver's blood is five nanograms or more per milliliter in the blood, but any amount in most states is enough to charge someone with impaired driving if it negatively affects how they operate a vehicle.
"The good news is we've got body cameras and squad cameras, so we're going to be able to show the jury almost exactly what the officer sees," he said.
The Minnesota County Attorney Association also will host an impaired driving school this summer to help local officer prosecute impaired driving cases. The association recently spoke with the Minnesota State Patrol regarding the new law.
"So we've been trying to get up to speed and stay up to speed, but there wasn't a part of the legislation that said 'Somebody should go out and train everybody to be ready,'" Ostrem said.
The other issue with the law, according to Ostrem, is that possession becomes legal this summer but dispensaries won't be open yet to legally sell marijuana to consumers. It's legal to give a small amount to someone 21 or older, but that also isn't outlined in the law, according to Ostrem.
He's worried about how law enforcement is supposed to enforce the statute if someone has marijuana in their vehicle but hasn't been able to buy it legally here or if it's over two ounces.
"If (police) find four ounces in a vehicle, what are they supposed to do? I honestly don't know," Ostrem said. "Two ounces, they just look the other way. Four ounces? Give them two ounces and throw the other two away? I don't know."