Professor: Cops can’t tell if you’ve got a marijuana buzz | Opinion – NJ.com

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professor cops cant tell if youve got a marijuana buzz opinion nj comprofessor cops cant tell if youve got a marijuana buzz opinion nj com

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EDITOR’S NOTE: NJ Cannabis Insider is hosting a two-day business and networking conference March 9-10, featuring some of the state’s most prominent industry leaders. Early-bird registration is open. Tickets are limited.

By William J. McNichol

The people of New Jersey have voted to legalize adult recreational use of marijuana. This new venture requires new levels of skill from the police and courts, which will have to deal with persons who use marijuana irresponsibly when driving.

New Jersey police rely on “drug recognition expert” (DRE) police officers to identify marijuana-impaired drivers and New Jersey courts have allowed DUI defendants to be convicted on the testimony of DRE police officers. However, there is no scientific validity to the DRE procedure and no one should be convicted of a DUI offense on the basis of a DRE police officer’s testimony. The legalization of adult recreational use of marijuana should be a catalyst for New Jersey to end the use of DRE police officer testimony and to begin a search for a science-based means for identifying marijuana-impaired drivers.

DRE police officers use a 12-step “protocol” that they claim allows them to identify drug impairment. Yet, attempts to validate the DRE protocol as a means of identifying impairment have failed miserably, especially when the drug in question is marijuana.

The DRE protocol calls for the DRE officer to make roadside or police station diagnosis of various medical, or psychiatric conditions. These include a diagnosis of the “possible paranoia” that DRE’s say is characteristic of marijuana use, even though police officers are not trained to make psychiatric diagnoses. Not even a psychiatrist would want to diagnose paranoia in a few minutes at the roadside or at a police station.

DRE officers also take the subject’s pulse three times and are even trained that they can do so by placing their hands on the subject’s throat to obtain a carotid pulse. An elevated pulse is said, by DRE police officers, to indicate marijuana intoxication but does anyone seriously think that a person’s pulse rate won’t jump when a police officer takes that pulse three times at the roadside or police station, possibly with his hand on the person’s throat?

According to DRE police officers, elevated blood pressure is another indicator of marijuana use and impairment, but about half of all Americans suffer from high blood pressure and even perfectly sober persons who don’t suffer from high blood pressure will surely see their blood pressure jump during a roadside police stop or when they are taken to a police station.

Another indicator of marijuana impairment that DRE officers use is “increased appetite.” Yes, the stereotype of potheads having the munchies is part of the basis for DRE police officers’ supposedly expert opinions concerning a defendant’s marijuana impairment. How this is evaluated at the roadside or police station is unclear, but if a DRE officer slyly offers some Doritos to a person accused of impairment they should probably say: “No, thanks.”

These components of the DRE procedure may sound bizarre or even funny. But all of them (and more) can be found in the written materials used in the NJ State Police DRE training program.

It isn’t surprising that the DRE procedure has not stood up to scientific scrutiny. DRE officers sometimes point to studies that were financed and conducted for the purpose of proving the validity of their training as a means of detecting marijuana impairment, but most of these studies concede that they were unable to show that DRE officers could correctly identify impaired drivers.

Courts in Rhode Island and Maryland forbid DRE police officers to testify as experts. The Minnesota Supreme Court has concluded that the DRE procedure “dresses up in scientific garb that which is not particularly scientific.” Now, it is New Jersey’s turn. The New Jersey Supreme Court has before it the case of State v. Olenowski, where the admissibility of DRE police officers’ expert opinions will be decided. The New Jersey Supreme Court should reject this unreliable, pseudo-scientific testimony.

Rejection of DRE officer testimony is only the first step in finding a practical, and scientifically valid way to enforce DUI laws in the era of legalized marijuana. Blood THC level has been proposed as a marker for impairment, analogous to blood alcohol levels. Unfortunately, blood THC level has proven to be a failure as an indicator of impairment.

The American Automobile Association, the National Highway Traffic Safety Administration, and many others have conducted extensive studies and concluded that blood THC cannot be correlated with impairment. Other biochemical indicators of marijuana use remain positive for days after the subject has used marijuana, making them useless as indicators of impairment. This does not mean that science cannot find a valid biochemical indicator of marijuana impairment, only that the leadership and funding to do so has been lacking.

New Jersey can use the occasion of its legalization of recreational marijuana to supply this funding and leadership. Tax revenue from sales of recreational marijuana are to be directed to a Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization (CREAMM) fund. A portion of the CREAMM fund, perhaps 5%, should be directed toward research to find a valid and practical biochemical marker for marijuana impairment. New Jersey is blessed with excellent private and state-supported research universities, and they will be able to effectively tackle this project. In doing this, New Jersey will do more than simply ensure that its citizens get the benefit of accurate and just administration of its DUI laws. It will provide leadership in this area of growing national importance.

William J. McNichol is an adjunct professor at Rutgers Law School, where he teaches a course on Current Issues in Marijuana Regulation. He has written on the reliability of DRE police testimony and other issues relating to legalized marijuana. The views expressed here are his own.

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Source: https://www.nj.com/opinion/2021/02/professor-cops-cant-tell-if-youve-got-a-marijuana-buzz-opinion.html

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