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Marijuana legalization opponents make last-ditch effort to stall NY legislation

New York Now
Opponents of marijuana legalization speak outside the State Capitol on Monday, March 29


Opponents of legalizing marijuana in New York made a last-ditch attempt on Monday to stall the issue, saying concerns still remain over a handful of issues, including the ability to detect when someone is driving while impaired by the drug.

Democrats could vote as soon as Tuesday afternoon on legislation introduced over the weekendto legalize marijuana in New York for recreational, adult use.

Supporters of legalization have argued that allowing the drug in New York would go a long way to restore social equity in communities that have been disproportionately targeted by prohibition. 

Aside from fully legalizing the drug, the legislation would also allow automatic expungement of certain convictions, and require part of the revenue from the industry to be reinvested into social and economic equity programs, for example.

They’ve also argued that, if people are going to continue to use marijuana in New York, the state might as well create a system to tax and regulate it. 

But others have said New York isn’t ready to legalize marijuana, and that Democrats haven’t thought through the long-term implications. Allowing the drug could endanger drivers, children, and businesses, they said Monday.

One provision of the bill would require the state Department of Health to partner with college and university research institutions to study how members of law enforcement could detect when someone is driving while impaired by the drug.

The legislation would also require the State Police in New York to ramp up the number of certified drug recognition experts on call, and provide training throughout the state.

But opponents of legalization said Monday that the bill doesn’t go far enough to address the potential danger of impaired driving.

Patrick Phelan, a former police chief who’s now the executive director of the New York State Association of Chiefs of Police, said their concerns stem primarily from road safety, not just the use of the drug.

“I’m not talking about stopping a guy from sitting in his backyard and smoking a joint. Honestly, I really don’t care,” Phelan said. “But I know people are going to get in traffic crashes and they’re going to die.”

There’s currently no easy or inexpensive way to instantly detect when someone’s been impaired by the drug. There are certain saliva and respiratory tests, but some have questioned their accuracy. Blood results sent to a lab would take days, if not weeks.

Police officers in New York currently aren’t equipped to detect when someone’s driving while impaired, but can arrest someone based on probable cause, like a field sobriety test.

The legislation under consideration wouldn’t change that, or assign any new criminal penalties to driving while impaired by marijuana. But law enforcement officers would no longer be allowed to use the smell of cannabis, burnt or not, to pursue a criminal charge.

“That’s going to hurt law enforcement,” Phelan said. “A lot of gun and drug arrests come from the odor of marijuana emanating from a vehicle.”

Local prosecutors have also voiced concerns over the inability of law enforcement to definitively detect when someone’s been impaired by the drug.

Monroe County District Attorney Sandra Doorley, the current president of the District Attorneys Association of the State of New York, said adding more drug recognition experts would be a step in the right direction, but wouldn’t solve the problem of road safety.

That’s because, according to Doorley, state law requires prosecutors to name the substance someone’s been impaired by to succeed in court. If someone ingests the drug in an edible form, versus a smokeable product, that could be tougher to detect and prosecute, Doorley said.

“Drug recognition experts are only part of the solution and may not always be able to detect if someone has ingested edibles that will be legal to sell and purchase under the new law,” Doorley said. 

“Unless there is a consistent way of detecting impairment and defining impairment, there could be unequal treatment between those who smoke and those who ingest THC.”

On the flip side, there’s also concerns that legalization will lead to more civil litigation related to workplace safety.

New York’s workplace safety laws can currently hold employers fully liable if a worker is injured on a job site, regardless of whether that person was intoxicated at the time. That’s according to Tom Stebbins, executive director of the Lawsuit Reform Alliance.

“If we are going to have more marijuana on our job sites, we’re going to have more injuries. And because of the archaic laws in New York, it means we’re going to have more claims against our employers, more claims against the state,” Stebbins said. “It’s going to raise costs for everybody.”

Opponents are also worried that children will gain access to the drug in the same way they currently seek out alcohol and other drugs. Marijuana would only be legal to use for individuals ages 21 and older.

David Little, executive director of the New York State Rural Schools Association, said he was worried that children would romanticize the idea of their first experience with marijuana, like having a first drink at age 21. 

That could encourage them to try the drug before they’re legally allowed to, he said.

“We are way too early on this, and our children will suffer because of it,” Little said.

Lawmakers are expected to approve the bill in Albany sometime this week. With support from Cuomo, it’ll likely become law before the weekend.

Dan Clark is the host and producer of New York NOW, a weekly television show focusing on state government produced by WMHT in Albany. Clark has been reporting on New York state government and politics for the last six years, during which time he's worked out of the state Capitol in Albany. Clark reported for the national political fact-checking publication PolitiFact, the Buffalo News, the statewide political television show Capital Tonight, and most recently the New York Law Journal. At the New York Law Journal, Clark has focused on state legal challenges to President Donald Trump, as well as litigation concerning laws enacted by the New York State Legislature. Clark covered the Legislature in each role he's held and is a familiar face to state lawmakers and staff. Clark is a native of Afton, NY in Chenango County. He's lived in Albany with his husband since 2011.