Border Wars: How Would New York Enforce The Law If Marijuana Is Legalized In New Jersey

Photo Credit: Kyle Lawson

As New Jersey lawmakers debate legalizing marijuana for recreational use in the Garden State, the focus in New York has shifted to the border.

Should a bill make it to New Jersey Gov. Phil Murphy’s desk, he’s already said he would sign it. That would allow Staten Islanders to travel across the border, buy and use marijuana, and return home without issue.

But, according to federal law, they legally would not be able to bring weed back into New York, creating what could be a crackdown at the Outerbridge Crossing and Goethals and Bayonne bridges.

A glimpse into the future?

To learn how local law enforcement might deal with the issue, the Advance recently sent a team of reporters to the Pacific Northwest, where marijuana and impaired drivers cross daily from Oregon into Idaho, one of states in which the drug remains strictly prohibited.

Reporter Kyle Lawson and multimedia specialist Amanda Steen rode with members of Idaho’s Domestic Highway Enforcement Team, who are trained with federal dollars to prevent traffickers from crossing into the state while keeping an eye out for impaired drivers.

Along the Oregon-Idaho border

Troopers there said there’s a constant stream of marijuana — both black market and store bought — entering Idaho from legalized states like Oregon or Washington.

“Every time I’m on patrol, I see marijuana,” said Trooper Curt Sproat, adding that it wasn’t always that way.

He said troopers no longer arrest every person in possession of marijuana. Instead, they issue a misdemeanor summons — a shift in policy that he said is indicative of an increase in offenders.

“Certain jails are getting so overpopulated, and a part of that is the issue of people having marijuana,” he said. “That being said, there are times people who have a pipe go to jail.”

But the task force’s main target is high-end traffickers, who, according to experts, are able to triple their profits in some cases with shipments to Minnesota, Texas and Idaho — where marijuana laws are strict but the demand is high.

“There’s drugs coming through this interstate (Interstate 84) probably as we speak right now,” said Sproat. “If you’re including user amounts of any drug … it’s on the interstate all hours of the day, every day. Whether it’s 1 a.m. or 8 a.m., weekend, week day. Doesn’t matter.”

Twice in recent months, troopers seized hundreds of pounds of unregulated and untaxed weed headed from Oregon to New Jersey.

“That’s marijuana that could be going to kids in middle school, or high school, and then when you start dealing with street level, you’re dealing with gangs and the violence that comes with that,” said Trooper Steve Farley.

In September, an additional 16 counties, or cities, in the U.S. were designated as High Intensity Drug Trafficking Areas by the Office of National Drug Control Policy, including Ocean County, N.J., and Oneida County, N.Y.

“[There’s] clearly a link with marijuana,” said Sproat.

In New York and Pennsylvania, dealers have said the quality, variety and consistency of products with THC — tetrahydrocannabinol, the main active ingredient in marijuana — have steadily increased as laws have relaxed nationwide.

Weed from Oregon often is produced by medicinal growers who opted out of the cost and regulations of a recreational license, according to an Oregonian report.

The article cites a 2017 analysis by Oregon State Police that estimated the state could potentially produce a surplus of cannabis with an estimated street value between $4.7 billion and $9.4 billion.

In Colorado, prosecutors said recently they busted a 74-person operation producing 100 pounds of marijuana per month — enough to generate $200,000 monthly, tax free, for more than four years, according to a USA Today report.

Keeping the roads safe

During the Advance’s ride-along, Sproat (pictured above) and a fellow officer parked along the median on Interstate 84 near Fruitland, Idaho, watching for signs of drug activity.

Increased availability of marijuana means an increase of impaired drivers, which goes against the state troopers’ top objective — keeping the roads safe, said Sproat.

“From time to time, we’ll spot somebody smoking a marijuana joint, driving down the roadway,” he said. “First off, it’s illegal in Idaho and secondly … there are [drivers] involved in serious crashes and or fatalities that do test positive for marijuana.”

Whether a driver is nervous about being high or trafficking, there are certain tells troopers have been trained to spot: An unnecessary decrease in speed, an attempt to mask their face with a sip of a drink, or a move to the far lane.

Enforcement in New York

With the potential legalization of marijuana in New Jersey, and amid an ongoing opioid crisis on Staten Island, officers here and citywide have begun impairment recognition training.

The training, conducted at the Police Academy and at local precincts, is taught by two drug recognition expert (DRE) instructors who recently spoke with the Advance about the importance of every officer being able to accurately spot an impaired driver.

“This is the first time in history drug-impaired driving has surpassed alcohol-impaired driving,” said Officer Tim Kessler. “It’s a problem we’ve never faced before. With the legalization of marijuana, it’s becoming more and more of a threat.”

That said, one officer who has worked the night shift on Staten Island for the past few years said drivers impaired by marijuana haven’t been much of an issue on his beat.

“In Brooklyn, I saw more weed. I saw everything,” he said. “It’s more heroin on Staten Island.”

If a driver is suspected of being impaired by an illegal, prescribed or over-the-counter drug, they are placed in police custody pending a sobriety test by a DRE officer.

The DRE is trained to test the driver’s pulse, examine their pupils, instruct them to balance on a straight line and request them to submit to a urine test, among other things.

If the driver refuses a urine test in New York, their license could be revoked for one year regardless of whether they are found guilty of driving while impaired.

If any trace of marijuana is found in the blood, the offender faces up to one year in jail, a $1,000 fine or both.

The argument for more DREs

If a case involving a fatal crash goes to trial, a DRE’s opinion about a driver’s state of impairment would hold up in court, whereas an officer’s would not, which is one of the reasons  borough officials have for years requested more DREs on the Island.

DREs “bolster the prosecution in drug cases by providing expert witness testimony at trial, which can help us ensure that these defendants are held accountable for their actions,” District Attorney Michael McMahon told the Advance.

The Island currently has one DRE officer; there are eight citywide.

Testing for THC

The process of testing and prosecuting a driver for impairment varies from state to state.

In Colorado, where weed was legalized in 2014, authorities set the minimum THC level at 50 nanograms per milliliter of blood.

In Oregon, state law prohibits a blood test unless a crash resulted in a serious injury or death.

In New York, drivers arrested for a routine DWI are asked to submit to a urine test, while those involved in fatal crash would be asked to take a blood test.

Some experts argue the method of testing for marijuana in the blood or urine is questionable, as traces of THC can remain in a person’s system for weeks after they’ve last ingested weed.

“Because THC is soluble, drivers could be testing positive long after they’ve stopped [using],” said Mark Kleiman, a professor of public policy at New York University and expert on crime reduction. “It’s complete nonsense.”

How high is too high?

In terms of measuring impairment, studies have shown drivers often react differently to the same amount of marijuana based in part on how experienced they are with the drug.

In one case, experienced smokers showed almost no functional impairment under the influence of marijuana except when it is was combined with alcohol, according to the U.S. National Library of Medicine.

Those studies fall in line with law enforcement experts who say it can be difficult to determine a driver’s level of impairment.

“People who are high on opioids, our officers can recognize that … marijuana is a little more challenging,” said Assistant Chief Kenneth Corey, the new NYPD borough commander. “There is no standard, or effective way, to measure how high you are … the law hasn’t in that area caught up.”

The effects of driving while impaired

Research presented to Congress in July by the National Highway Traffic Safety Administration showed the “potential for marijuana to impair driving-related skills.”

While there is evidence marijuana use could impair psycho motor skills, divided attention, lane tracking and cognitive functions, it’s role in contributing to crashes remains unclear, according to the study.

“While useful in identifying how marijuana affects the performance of driving tasks, experimental and observational studies do not lend themselves to predicting real-world crash risk,” the study said.

According to the NHTSA, stoned drivers typically drove slower, followed further behind cars in front of them and took fewer risks than when they were sober, as opposed to drunken drivers who exhibited more aggressive behavior.

Researchers suggested the overly cautious behavior exhibited by stoned drivers was a way to compensate for the effects of marijuana, but ultimately would not likely “mitigate the detrimental effects on driving-related skills.”

Some experts argue that driving while stoned should be considered a simple traffic offense.

“It’s more like driving with hands free cell phone than it is driving drunk,” said Kleiman. “The risk is much stronger with alcohol.”

Sproat said he’s aware of the push back.

“I had one woman drive by while I was performing a search, slowed down, looked me straight in the eyes and yelled, ‘That is bulls—!'” he said, laughing. “She looked like a soccer mom.”

What about crossing state lines with weed?

If a driver is arrested after crossing into New York with more than 25 grams of weed, legal experts caution they’ve technically broken a federal law, which could result in a stiffer penalty handed down by a state judge.

Leland Berger, who helped draft the legislation to legalize marijuana in Oregon, said there’s a chance that could someday change.

“There’s an argument the constitutional right to travel applies in circumstances where you’re traveling through a prohibitionist state,” he said.

The larger objective for most pro-cannabis advocates, however, has long been to remove the Schedule I classification of marijuana at the federal level, he added.

“Two cases have gone to the U.S. Supreme Court, and they’ve made it clear it’s going to require Congressional action.”