“These piecemeal approaches are only going to cause a lot of victimization, frankly, for those who are falsely accused.”
By Sophie Nieto-Munoz, New Jersey Monitor
Cannabis experts are concerned about a lawmaker’s attempt to require motorists suspected of driving under the influence of marijuana to provide a blood sample to police.
Critics of the recently introduced bill say it would not only give police more power that would likely be wielded disproportionately against people of color, but they also argue the testing methods called for in the bill don’t even work.
Joshua Bachner, a cannabis attorney at law firm Mandelbaum Barrett, criticized the move as an example of government overreach.
“The state should develop—and there’s many of us in the state happy to coordinate with them—a comprehensive, reliable method for determining impairment,” he said. “But these piecemeal approaches are only going to cause a lot of victimization, frankly, for those who are falsely accused.”
Under current law, anyone in New Jersey who drives is consenting to provide a breath sample if police believe they are driving drunk—it’s called “implied consent.” The new bill would expand that to include a blood test and apply to any narcotic, hallucinogenic or other drug. Someone would be deemed under the influence of marijuana if they test positive for 3 nanograms or more of THC—the chemical that gets cannabis users high.
The push to expand implied consent laws to apply to drivers suspected of marijuana use comes two years after New Jersey’s recreational marijuana market launched, and as legal cannabis becomes more prevalent nationwide.
The National Highway Traffic Safety Administration called the growing issue of drug-impaired driving a “major highway safety issue.” From 2007 to 2014, there was a 48 percent increase in drivers testing positive for THC, according to a NHTSA study.
Bill sponsor Sen. Shirley Turner (D-Mercer) did not respond to a request for comment. Turner introduced a similar bill in the last legislative session but it never reached a committee vote.
Bauchner pointed to a report from the National Library of Medicine that he says debunks the suggested method for testing laid out in the bill. The study also says people’s response to amounts of cannabis can change depending on their tolerance.
The handful of states with marijuana-impaired driving limits allow for varying ranges of THC amounts in a driver’s system. Nevada and Ohio allow for 2 nanograms, while Illinois and Washington allow for 5 nanograms. According to the National Conference of State Legislatures, there is no national standard for drugged driving, unlike the nationally recognized alcohol impairment level of .08 blood alcohol concentration. New Jersey currently has no THC limit in place for drivers.
There’s no proven way to test whether someone is high from marijuana at the moment. Unlike alcohol, which breaks down in someone’s bloodstream over hours, cannabis can remain in someone’s system for over 45 days. Bauchner said that’s another problem with the bill.
“This isn’t based on science, this is based on guesswork,” he said.
Alex Shalom, an attorney with the American Civil Liberties Union of New Jersey, said it’s fair for the state to look for new ways to tackle impaired driving, but he echoed worries that the bill could result in people who are not impaired being arrested. He also wondered whether there is established science to determine when someone is impaired by cannabis.
“We need a process where we rigorously figure out what the right level is to determine if people are impaired, and I’m not sure we’ve done that yet in New Jersey,” he said.
One of Shalom’s largest concerns about the bill is that police could improperly force drivers to provide a blood sample without a warrant. He noted that cops can, under current law, seek a warrant for a blood sample, meaning there is judicial oversight involved.
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“It forces the police to have to get the approval of a judge before they invade a person’s bodily autonomy,” he said. “That is both consistent with the Constitution and consistent with our values that say, before the government can stick a needle in your arm, they better have an awfully good reason.”
People of color already face disparate treatment from police, Shalom said. Black and Latino drivers are overrepresented in traffic stops, and are more likely to be searched than their white counterparts, even though the searches are less likely to result in evidence, according to a Northeastern University study into New Jersey State Police stops.
Bauchner worries the behaviors police look for to gauge whether someone is an impaired driver are the same as those of a nervous person: sweaty palms, avoiding eye contact, sniffling, anxiety and increased heart rate.
“If you’re an African American person getting pulled over by law enforcement in this country, you are manifesting those conditions. Not because you’re impaired, but because you’re a Black person getting pulled over and you’re afraid for your life,” he said.
This story was first published by New Jersey Monitor.
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