Driving assessment

In wake of marijuana legalization, NYPD focus on impaired driving

NOTE: A version of this story first appeared in The New York Cannabis Insider, a new publication covering the state’s marijuana market. NYCI is hosting a half-day virtual event on March 31 about financing your canna business, sourcing and securing capital, changing your community’s perception of marijuana, and collaborating and respect for Native American cannabis operations. Tickets are available here.

Sergeant Michael Curley, spokesman for the Utica Police Department, said his agency foresees “a need for new DREs, which will be funded solely by the department.” He added that through a partnership with neighboring Oneida County, his department has “access to the latest technology and recognition experts to detect impairment while operating a motor vehicle.”

With approximately 100 trained DREs on staff, the New York State Police “trains all soldiers in the Advanced Roadside Impairment Driving Enforcement program, which provides additional training to observe and identify signs of drug-related impairment, alcohol or both,” according to an emailed statement from the department.

The DRE concept, however, does not come without baggage.


The original idea of ​​a law enforcement drug evaluation was conceived in Los Angeles in the 1970s. Then, in the early 1980s, the National Highway Traffic Safety Administration used the LA program as a model for a national effort.

The administration then commissioned two of the three studies debunked below.

Questions about the accuracy of the DRE surfaced in 2013 when researcher Greg Kane published an analysis of three scientific studies frequently cited in court cases involving the accuracy of law enforcement Drug Influence Evaluations (DIEs).

Kane’s research found that all three used flawed methodology and concluded, “The accuracies reported by these studies do not quantify the accuracy of the DIE process now used by US law enforcement. These studies do not validate the current practice of EID.

Further concerns emerged in 2019, when the The Boston Globe reported that defense attorneys and civil liberties advocates in Massachusetts – which had legalized recreational marijuana three years prior – said their state’s DRE program was “unscientific, deeply flawed and could punish innocent people” .

The Globe said the DRE program “has been rejected in numerous cases by Massachusetts judges who have ruled it lacks scientific validation. Studies have shown that the program’s claims of accuracy are overstated, that it is biased and prone to false alarms.

Michael Sisitzky is Senior Policy Advisor to the New York Civil Liberties Union. He told NY Cannabis Insider that his organization is “deeply skeptical” of using DREs to determine a motorist’s level of impairment.

“They have never been rigorously tested and validated as a means of detecting impairment, whether from marijuana or other types of drugs,” he said. “The idea that DREs will lead to increased road safety is not based on science.”

Sisitzky noted that law enforcement officers already have “tools in their toolbox” — namely the standard road sobriety tests currently in use — to determine driver impairment.

And while DREs have the word “expert” in their title, Sisitzky called this “misleading” because “it implies expertise beyond what they actually have.”

“At the end of the day, [DREs] offer an opinion, which might run the risk of being informed by their own personal biases,” Sisitzky said. “What we’ve seen is that DREs aren’t the answer.”

While using ERDs can present challenges for law enforcement, the biggest hurdle — accurately determining a driver’s level of marijuana intoxication while behind the wheel — can leave police officers with little choice.

Unlike alcohol, which leaves the human body within hours, THC – the psychoactive ingredient in marijuana – remains present in the body (metabolized into fat cells) long after its effects have worn off.

So, although blood or saliva tests can detect THC, this does not necessarily indicate that the individual was under the influence at the time of the test.

Research published last December by the Lambert Initiative at the University of Sydney in Australia stated that “blood and oral fluid [saliva] THC levels are relatively weak or inconsistent indicators of cannabis-induced impairment. This contrasts with the much stronger relationship between blood alcohol levels and impaired driving. The findings have implications for drug-impaired driving law enforcement globally.

New tools

The ideal solution for law enforcement is the development of a tool to determine, in real time, whether an individual is under the influence of marijuana, and which provides an accurate, fair and scientific standard of intoxication to THC.

“The private sector will take care of that,” Phelan said, referring to detection devices.

In fact, portable THC breathalyzers that are supposed to measure marijuana intoxication in real time are currently being developed.

One of these portable devices, built by Dog labs in Oakland, is touted as a “highly sensitive” and “fair” testing solution that, according to the company’s website, “differentiates the person who legally and responsibly smoked cannabis at a Friday BBQ evening, of his colleague who smoked Monday morning On the way to work.”

A Hound Labs spokeswoman told NY Cannabis Insider that the company’s breathalyzer is not yet available, but “will be over the next few months.”

Cannabix Technologies Inc. is a publicly traded company based in Vancouver that says he created a portable THC breathalyzer that performs what amounts to a smell test on a person’s breath.

The tool’s underlying technology “uses microfluidic sensors coupled with machine learning algorithms that operate on principles similar to mammalian olfaction systems,” according to the Cannabix website.

Cannabix did not respond to requests for comment.

None of these tools take into account the growing popularity of THC-infused edibles – candies, cookies, etc. – which have intoxicating effects that cannot be measured by a person’s breath.

Joseph Sinagra is a member of the Cannabis Industry Association chapters in New York and the Hudson Valley. He is also the chief of the Saugerties Police Department.

“No, I’m not a user,” he said in a recent interview. “I want to see that everything is done well. If it’s done right, I think it’s a good deal. It is a good source of income for the state and the localities.

Sinagra agrees that law enforcement “doesn’t have enough DREs to fix the problem.” But he laments that they may not be the most effective way to enforce the law, proposing the following scenario:

“Maybe I see a seal or gasket in the car and detect an odor in the vehicle,” Sinagra said. “The smell doesn’t give me a probable cause, but the seal or gasket does. If there’s no alcohol in the person’s system, I bring a digital rectal exam. If the DRE determines the influence of the drug, the person is arrested.

But the problem becomes that “the DA probably won’t be able to prosecute because we don’t have definitive scientific evidence that the person’s intoxication was the result of cannabis,” Sinagra continued.

“So we have to figure out where the person was for the previous three or four hours, get witnesses and put the puzzle together. But how much time and energy is expended? »

Ultimately, Sinagra thinks New York State took the leap.

“I don’t have a problem with legalization, but we did before to address concerns about real-time detection without roadside instruments to test people,” Sinagra said.

“As far as drunk driving is concerned, we have established thresholds. But with cannabis, they have not been established. We do not have road test equipment available for THC testing. There is no way for a DA to prove when someone is under the influence – there is no real-time detection.

“We put the cart before the horse in New York,” Sinagra said.