N.J. Supreme Court decision could change how police test weed impairment

In question is the protocol and use of specially trained officers known as Drug Recognition Experts, who perform marijuana sobriety tests


By Jelani Gibson
nj.com

TRENTON, N.J. — The New Jersey Supreme Court case that could decide how cannabis impairment is — or isn’t — measured by police is nearing a conclusion with multiple ramifications.

In question is the protocol and use of specially trained officers known as Drug Recognition Experts (DREs), who perform marijuana sobriety tests. The case, State v. Olenowski, involves the state Office of the Public Defender challenging the scientific validity of how police officers detect drug impairment, including on drivers suspected to be under the influence of THC, the psychoactive ingredient in cannabis.

The case does not ban police and prosecutors from proving that reckless driving was taking place via dashboard and body camera footage.
The case does not ban police and prosecutors from proving that reckless driving was taking place via dashboard and body camera footage. (Photo/Police1)

The case could also affect other provisions in the law that require sobriety to be measured in the workplace since much of those impairment testing protocols pull heavily from the same training standards DREs receive.

“We are waiting to see what is going to happen with that case,” said state Cannabis Regulatory Commissioner Krista Nash at a Saturday business cannabis event organized by Roll-Up Life, a New Jersey-based CBD delivery company. “We don’t want to write rules and then have a court case settled be in conflict.”

THC can impair skills required for driving safely by slowing one’s reaction time, decision-making and coordination.

There is currently a lack of technology that can tell in real time what threshold makes a person too impaired to drive, meaning police officers had to rely on a sobriety test their profession created.

There are provisions in the cannabis law that allow police to receive funding for even more DREs that can be affected as well.

The OPD attorney leading the case, Kimberly Schultz, said she was waiting on next steps.

[RELATED: N.M. police agencies prepare for cannabis-impaired drivers]

“Our briefs were submitted in March and we are waiting to hear from the judge about whether he wishes to have an oral argument,” Schultz told NJ Cannabis Insider.

The New Jersey Association of Drug Recognition Experts declined to comment on the case until it is resolved.

The state Attorney General’s Office went on record in a previous article signaling support for the program.

“New Jersey has long taken a proactive approach to impaired driving, which historically accounts for about a quarter of all of our traffic fatalities,” said Lisa Coryell of the AGO. “We have embraced the DRE program as an effective tool in addressing drug-related impaired driving.”

In that same article, Nick Morrow, a former DRE instructor, who served with the protocols implementation in the earlier days of its California debut, vigorously criticized the protocols’ selective methodology. He also described how officers would often fail the test themselves when he was in charge of instructing them on how to administer it to civilians.

Requiring rigorous science to prove impairment while still allowing enforcement powers to prevent impaired driving will be a balancing act, said Alex Shalom, ACLU director of Supreme Court Advocacy.

Whatever the outcome, the case does not ban police and prosecutors from proving that reckless driving was taking place via dashboard and body camera footage.

Using the cannabis law to fund more drug enforcement protocols, however, is antithetical to the legislation’s stated intent of healing the harm from the War on Drugs, Shalom said.

“Even assuming it was tested, it misses one of the prime rationales for the legalization of cannabis in New Jersey, which is, this has been an overpoliced part of our society and the policing has been targeted at Black and brown and communities,” Shalom said.

[RELATED: Legal Marijuana: Cops' opinions on decriminalization, incarceration & more]

“To think, ‘what can we do differently about marijuana?’ and to think what we need to do is spend more money on policing marijuana is really baffling to me,” he said.

Michael Millburn, a scientist and psychology professor who taught for 40 years at the University of Massachusetts Boston, created an app called DRUID, which claims to have a more objective way of measuring impairment through a series of tests one can do on their phone.

It’s important to note that sleep deprivation and overall health can also cause impairment, Millburn said.

“DRUID can become a standard measurement of impairment across all sorts of situations,” he said.

Millburn voiced skepticism on cannabis breathalyzers due to the fact that they indicated recent cannabis use, but made no claims to whether or not someone was impaired.

“I feel like public policy should reflect the best science and the DRE program and sobriety tests do not do that,” he said.

Rutgers law Professor William McNichol, who teaches a course on cannabis regulation, has been a critic of DRE testimony. He is familiar of Millburn’s technology, and wants to see more data on how the app could not only determine impairment, but whether people were specifically too impaired to drive.

“At no point did the DRUID study subjects attempt to drive an actual or a simulated car (as has been done in other, better studies), so there’s no way to know whether any of the DRUID study’s subjects were impaired to the point of being unsafe drivers,” McNichol said via email.

“Whether the DRUID app can correctly identify drivers who are impaired remains to be established by a larger study that actually looks for impairment, not for agreement with some of the psychomotor tests that DREs use,” he said.

As for an increase in impairment due to cannabis legalization, Thomas Shea, program director for the police graduate studies program at Seton Hall and a former officer of 20 years, noted that in his experience with traffic crashes, alcohol and other drugs served as more of a factor than cannabis.

[RELATED: How marijuana legalization impacts highway safety]

“I don’t think I ever responded to an accident where someone was high on pot, but I responded to a bunch of people who were high on other drugs and alcohol,” he said.

“Honestly, I just don’t see a mass increase in driving under the influence in marijuana arrests,” Shea said.

There are other officers who hold the same sentiment, but police culture functions around solidarity, Shea said.

“I think it’s very tribal in a way,” he said. “If you’re a part of an organization, are you going to go against the creed or rationale of your organization? Are you going to push back against that even if you don’t necessarily agree with it? I think not just respective to police, I think people in general don’t really do that. I think human nature has shown us that in the past and not just in the policing population.”

Shea said he’s known multiple police in positions of leadership that don’t genuinely view cannabis as harmful to society, but saying so could upset cultural norms and have political backlash.

“I’ve met with and I’ve known a lot of chiefs personally, I know a lot of them feel the same way I do, whether they admit it publicly or not,” he said. “They’re in a different position. It’s very unpopular for a chief — the head of a law enforcement agency to come out and say that. It’s a very dangerous statement.”

“If we talked more about our personal feelings — [If] we weren’t afraid to objectively and independently think as opposed to following the company line, I think it would change the whole relationship between the police and the community,” Shea said.

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