Driving Under the Influence of Marijuana, Not a Problem Here

By Melissa Drift | Posted August 15, 2024

Just a few years ago, The Montgomery News police blotter section was full of people getting arrested for having marijuana or drug paraphernalia in their car.

Sometimes, the arresting officer smelled weed or saw plumes of smoke as the car window lowered after a routine traffic stop. No question about it. The driver could and would be charged at least with possession, according to police blotter.

SIMULATED MARIJUANA SMOKE billows out of the windows of a car during a demonstration by the Colorado Department of Transportation. David Zalubowski/AP

When Gov. Murphy signed the Marijuana Decriminalization & Cannabis Legalization into law in February 2021, marijuana charges virtually disappeared from police blotter. Overall, driving under the influence of marijuana has not been a huge problem in Montgomery Township since the laws changed, said Jason Larsen, administrative division commander for the Montgomery Police Department.

“Since the decriminalization of marijuana, it’s been very low key in Montgomery. We haven’t had a significant increase in DWI arrest due to drugs and not alcohol. We haven’t really seen any issues arising that much from it,” said Larsen.

JASON LARSEN, administrative division commander for the Montgomery Police Department.

He pointed out that accidents caused by alcohol vastly outnumber those caused by marijuana and other drugs. All, however, are on a decline.” He attributes this to the popularity of ride sharing apps such as Uber and Lyft.

Most accidents, in fact, in our area are caused by distracted sober drivers, who were just not paying attention to the road. “The police department encourages people to be responsible whether it’s consuming alcohol, recreational marijuana, and just don’t drink and drive, don’t smoke and drive. Get a ride. Use ride share apps. And just be safe. Our big focus is just the safety of the community,” Larsen said.

But what happens in a case when a Montgomery police office does suspect a driver is high? Unlike alcohol, there is currently no definitive amount of cannabis that defines a standard dose. This means there is no quantifiable low to high-risk amounts on which to base recommendations. A legal limit has yet to be established in New Jersey and many other states.

According to the National Conference of State Legislatures, only five states, Illinois, Montana, Nevada, Ohio, and Washington have legal limits for THC, ranging from 2 nanograms per milliliter (ng/ml) of blood and 5 ng/ml. Larsen said the charge of DWI, (driving while intoxicated,) or DUI, (driving under the influence,) applies to any substance. Some states draw a distinction between DUI and DWI, which is a lesser charge in those states, but New Jersey doesn’t have that distinction and the two terms are used interchangeably here.

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For alcohol, though, the penalty varies, based on the level of intoxication, and the number of prior convictions a driver has. Since there is no legal limit for marijuana, the level of intoxication isn’t a factor when determining the penalty.

Larsen said he is hopeful that this could change in the future when more research is done on how different levels of marijuana affect people’s driving, and tests such as Xaliva come into common use. “I think if they can determine scientific levels of intoxication or impairment due to marijuana, then it may affect the penalty phase for a DWI/DUI conviction,” he said.

For now, marijuana users will only be suspected of DWI and subsequently convicted if the police officer has a reason to believe their driving is impaired because of it. Police officers are trained to recognize signs that a person is under the influence of many drugs.

“In New Jersey, if somebody is stopped for a motor vehicle violation, and the officer believes that there is a level of impairment there, the officer can conduct what’s known as standardized field sobriety test," Larsen said. “So the standards for those are set by the National Highway Safety Transportation Authority. NHSTA for short. And it’s instructed to the officers via the New Jersey State Police. They put on the training courses for officers for detecting impairment while driving.”

When a Montgomery police officer (or any New Jersey officer) believes that an impaired driver may be under the influence of another substance besides alcohol, they will call in a certified Drug Recognition Expert, known as a DRE, to evaluate the person at the police station. DREs are police officers who have taken a training program through the New Jersey State Police, that teaches them how to recognize the signs and symptoms of many kinds of drugs. Not every department has a DRE. Montgomery Township does not have one, so if one is needed, they will call one from another department.

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Officer Andrew Redfield, a New Jersey detective sergeant, who does not work for the Montgomery police, is the legal advisor for Ricovr, the Princeton company that has developed a new test called Xaliva, which uses saliva to detect whether a person has used marijuana within the last six to eight hours. Redfield explained what happens when a driver is suspected of DWI and how to spot symptoms of marijuana or other drug intoxication. He completed the DRE certification in 2017.

Redfield says the way the driver is operating the car is the first clue. "So basically if the car is not facing [in the proper direction] in the lane, that might alert my suspicions to the fact that the driver might be impaired," he said.

"If it’s just a non moving violation, I might talk to the driver. Marijuana has an overwhelming odor. There’s nothing else like it,"he said. Once you go up to the car, you can smell it and you can tell whether it’s fresh marijuana or burnt.”

Lawyers defending drivers who have been charged with DUI for marijuana have debunked the DRE program as “junk science.” (See njdwilegal.com/nj-police-drug-recognition).

The development of a reliable THC test would surly help law enforcement and employers to assess whether someone is too stoned to work or drive, just as the Breathalyzer has done for alcohol.