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(Marijuana) rules of the road

There’s no reliable way to measure how impaired a driver is after smoking weed, experts say. And because of legal precedent, it’s harder to talk about it in a courtroom.

Payton Guion and Claude Brodesser-Akner For The Star-Ledger Justin Bealor weaved through the streets of Sea Isle City shortly after midnight one July morning in 2002, an open 12-pack of beer in the back seat and the odor of burnt marijuana in the car. Police saw him cross the yellow lines in the road several times before he turned into oncoming traffic.

Two state troopers pulled him over and arrested him after finding a used marijuana pipe in his pocket. They found marijuana residue in the pipe and a urine test later confirmed that Bealor had marijuana in his system.

But none of that meant Bealor was impaired by marijuana, his attorneys later argued, and upon appeal, New Jersey’s Supreme Court concurred in a 2006 decision. The court noted the state trooper who arrested Bealor wasn’t an expert in assessing the effects of marijuana use, and the state’s forensic expert who was hadn’t bothered to explain what effect it might have had.

The Bealor decision and other legal precedent established in other states raise huge concerns for police departments across New Jersey that they may not be able to effectively deal with people suspected of driving while high, concerns that could soon become even more pressing as state lawmakers appear to be getting closer to legalizing marijuana.

SEE MARIJUANA, A13

Arrests made by New Jersey police in 2016 of people suspected of driving under the influence of alcohol or drugs.

19%

Of drivers killed in car accidents in New Jersey in 2016 tested positive for marijuana, though those tests don’t show whether the driver was impaired at the time of the accident, according to AAA Northeast.

Shutterstock images

FROM A1

“New Jersey will be relying on officer observation as the primary tool to prove impairment,” says John Zebrowski, the chief of police in Sayreville and chairman of the Legalization Working Group for the New Jersey State Association of Chiefs of Police. “And I think it will only be natural to see a tsunami of litigation” on officer observation.

Data from the New Jersey State Police show that in 2016 New Jersey police arrested 23,579 people on suspicion of driving under the influence of alcohol or drugs. The data didn’t separate the arrests by whether the driver was suspected of being under the influence of alcohol or drugs, or both. A report from AAA Northeast last year found that 19 percent of drivers killed in car accidents in New Jersey in 2016 tested positive for marijuana, though those tests don’t show whether the driver was impaired at the time of the accident.

Marijuana intoxication is more unpredictable than alcohol, and there’s currently no reliable way to measure cannabis intoxication. The legalization bill in New Jersey also doesn’t have a legal standard for cannabis impairment and instead relies on existing protocol for judging whether drivers might be impaired. Add to that the fact that New Jersey is the country’s most densely populated state and it’s clear why legal weed is concerning for law enforcement.

The high court in Massachusetts dealt with the question a few months before legal weed sales began in that state. The Massachusetts Supreme Judicial Court ruled last year that police officers could no longer offer their field sobriety tests as evidence a driver was under the influence of cannabis.

Officers cannot even describe a field sobriety test as a “test,” nor conclude a driver “failed” it, the court ruled; only so-called DREs, or drug recognition experts, may do so. Now New Jersey seems poised to follow suit, according to former New Jersey Supreme Court Justice Virginia A. Long, counsel to the law firm of Fox Rothschild. She pointed to the 2006 State vs. Bealor case.

“It seems to have reached the same conclusion as the Massachusetts case,” Long said. “If the issue is presented today, the question will be whether there is now a consensus as to what the signs and symptoms of a drug high look like. The court in Bealor said there was not such a consensus at the time.”

Over a decade later, numerous studies from the National Institutes of Health have concluded that there is consensus on what a cannabis drug high looks like and that observation by trained experts in the field, and not blood testing, is the best indication of driver impairment.

With no legal standard for cannabis impairment in the current legal weed bill, police chiefs worry impaired-driving arrests made without the use of a DRE will crumble under any legal challenge.

In the meantime, Patrick Colligan, president of the state’s Policemen’s Benevolent Association, warns that the costs associated with training a sufficient number of drug recognition experts will be staggering, particularly in departments with only a handful of officers. That could mean some departments in New Jersey could have no trained DREs on the force.

“I agree that the layman officer should not be testifying,” Colligan said. “But the DRE training is extraordinarily expensive, and smaller communities cannot absorb these costs.”

Joseph Abrusci, a past president of the New Jersey Drug Recognition Expert Association, said “it is probably in the area of $5,000 to $6,000 to train a new DRE student.” Abrusci notes New Jersey has roughly 450 certified DREs and 75 instructors. That’s more DREs than any state other than California. But that number would have to increase for New Jersey to deal with legal marijuana, said Christopher Dudzik, a lieutenant in the Toms River Police Department and president of the New Jersey Association of Drug Recognition Experts.

“Our main concern is what we’re going to do to prevent impaired driving,” he said.

The drug recognition experts are trained by the New Jersey State Police, funded by a grant from the state’s Division of Highway Traffic Safety. Dudzik said he would expect the grant to cover an increase in those officers, but it’s not a certainty that the cost would be covered.

Attorney General Gurbir Grewal said last year that the state was working to train at least 80 more police officers as DREs, focusing on departments that don’t have any, in anticipation of marijuana legalization.

Grewal said he expects legalization to present “a challenge,” but one his office will be prepared to meet.

Payton Guion, NJ Advance Media, PGuion@njadvancemedia.com Claude Brodesser-Akner, NJ Advance Media, cbrodesser@njadvancemedia.com

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