New Mexico's Cannabis Regulation Act includes no specifics on DWI threshold

May 9—The way Capt. Micah Doering sees it, the process of detecting an impaired driver won't change much once the use of recreational cannabis becomes legal by the end of June.

Those field sobriety tests will remain the same, he said.

Walk and turn.

Stand on one leg.

Keep your head still while your eyes follow the small object — left to right, up and down — the police officer places about a foot away from your nose.

Doering, a drug recognition expert and commander of the Farmington district for New Mexico State Police, said there is "no difference between medical cannabis, legal recreational cannabis or illegal cannabis" when it comes to traffic stops and field sobriety tests.

"On the side of the road, it is exactly the same set of field sobriety tests that we use now — the standard field sobriety tests that every officer is trained on and which are very good to determine if a person is impaired to where they cannot safely operate a vehicle," he said.

But if some elements of a DWI traffic stop remain unchanged as New Mexico enters an era of marijuana legalization, other key components remain unknown. State lawmakers, who established the benchmarks for impairment for alcohol, have not yet devised similar guidelines to test for cannabis impairment.

As it is, almost everyone agrees determining impairment with cannabis users is difficult, regardless of whether the substance is legal.

And that, some experts acknowledge, could cause trouble as recreational marijuana becomes part of everyday life in New Mexico.

"Yes, there is a big conundrum in terms of regulating driving habits once marijuana is legalized," said former state Court of Appeals Judge Roderick Kennedy, who also spent years presiding over DWI cases as a Metropolitan Court judge in Albuquerque. "The question is: How do you prove somebody is incapacitated?"

Various factors complicate that issue. Under New Mexico law, police officers on a DWI stop cannot by law require a suspect to take a blood test if the charge is no more than a misdemeanor — which, in New Mexico, means the first three DWI convictions, assuming there are no aggravated circumstances.

With alcohol, the impairment level is cut and dried: 0.08 percent equates to impaired driving. But cannabis can remain in the system of a user for days, making it a challenge to prove it is the reason for impaired driving.

A 2017 National Highway Traffic Study Administration report to Congress said the presence of THC was not always equated to the impairment of the driver. Additionally, the study said there are "no evidence-based methods to detect marijuana-impaired driving."

In an effort to find a way to deal with that lack of evidence, some states with legalized cannabis have set impairment standards. In Colorado, where recreational marijuana use has been legal since 2012, lawmakers established the threshold for impairment at 5 nanograms of THC — the primary psychoactive compound in cannabis.

Kennedy said the state Legislature could and should amend the bill in the future to set some sort of DWI cannabis standard for law enforcement to operate under.

But establishing a THC threshold is a controversial prospect in New Mexico, both for members of the Legislature and some law enforcement officials.

State police Capt. Doering and state Sen. Daniel Ivey-Soto agree the Colorado limit for THC is far from perfect.

Unlike alcohol, which flushes out of a body as inebriation dissipates, THC sticks around after the high has passed, Ivey-Soto said.

"So for a regular user who hasn't used in a day or a half, THC could still be in your system when you are pulled over," said Ivey-Soto, a proponent of legalizing recreational cannabis.

Ivey-Soto said the Legislature will need to determine a way to link the level of impairment and the level of THC before it establishes laws for using a threshold similar to Colorado's.

Doering said state police officials prefer not to set such standards because of the challenge involved with connecting THC levels to impairment.

"I've dealt with people who have been above that 5 nanograms level without impairment," he said. "And some at 3 [nanograms] can cause a fatal crash because of poor driving due to impairment."

A looming battle

Doering and other law enforcement officials cautioned the uncertainty over an established THC level doesn't mean police won't be able to arrest impaired drivers — or that prosecutors won't be able to file charges against them.

"It's a normal investigation, and whether drugs or alcohol are involved, the process is still the same," said Julie Gallardo, a senior trial attorney and DWI expert for the First Judicial District Attorney's Office. "The police make contact, they interplay with the driver and see how they do on a field sobriety test. That's all the same."

But unless laws are changed to allow police to conduct blood tests for first-, second- and third-time offenders, prosecuting those drivers if they are impaired will remain a challenge, acknowledged First Judicial District Attorney Mary Carmack-Altwies.

She said if police cannot obtain a search warrant for a blood draw at the scene, it will be difficult "to go forward with any sort of prosecution. They can arrest on suspicion, but we will not be able to prosecute because we can't prove they are under the influence of something, and we have to prove that something."

She said district attorneys around the state pushed behind the scenes to have lawmakers include such blood-draw provisions in the cannabis legalization bill without success.

"That should have been in the law," she said.

In a follow-up email, she wrote it's possible district attorneys will fight to have that provision included in future legislative sessions.

Whether lawmakers will agree to such a provision is unclear. Rep. Bill Rehm, an Albuquerque Republican who is a retired police officer, unsuccessfully tried to pass legislation to set nanogram levels for all drug-related charges behind the wheel in both this year's regular 60-day legislative session and the two-day special session that followed.

Rehm said the Legislature is "absolutely gonna have to" come up with some standard in the future now that recreational cannabis has been legalized.

"For us to be blind and not deal with it is not very thoughtful," he said.

Rep. Javier Martínez, an Albuquerque Democrat who was one of the main sponsors of the Cannabis Regulation Act passed into law during the special session, said he could not say whether legislators might include a "per se" limit, as it is known, to the act in future sessions.

"That is certainly out there as a discussion point," he said.

Martínez is confident technology — in the form of some sort of cannabis Breathalyzer-style test — eventually will provide a way for law enforcement officials to tie impaired driving to cannabis use.

He added the new law changes nothing about the way law enforcement officers handle DWI cases on the road.

"If you are impaired to the slightest degree, that is generally enough to be arrested and charged," he said. "That will continue to be the case. Legalizing cannabis does not mean we are legalizing driving under the influence."

Experiences elsewhere

Will New Mexico see more DWI cases related specifically to cannabis? A review of data from other states that have approved the use of recreational use says that over time, there has been little difference in the number of DWI cases before and after legalization.

Colorado initially reported more DWI cases in the immediate aftermath of legalization, and Doering said state police are anticipating an initial increase in New Mexico.

"We do expect and are preparing for a bit of an uptick in DUI arrests, specifically with the legalization," Doering said. "We anticipate that people are going to experiment and indulge themselves and make unwise decisions."

Statistics in Colorado and elsewhere paint an uneven picture about what New Mexico might expect.

A 2020 report said there were 26,255 court cases involving at least one DWI charge in the state in 2018. Of those, one out of eight — over 3,200 — involved an individual who tested positive for marijuana.

But a 2018 Colorado Department of Transportation report said the state did see an increase in cannabis-related traffic crashes and fatalities. More than 13 percent of those involved in fatal crashes tested positive.

Rehm said New Mexico should expect a similar increase in traffic crashes related to the drug.

"We're gonna see it," he said.

A 2020 National Institute of Justice report on the effects of legalizing cannabis in Washington state in 2012 said the initiative had no "overall consistent negative or positive effect" on public safety. Using data collected from 2016-19, that report said 19 percent of DWIs in that three-year period involved cannabis.

Still, police officers interviewed for that study said cannabis-related DWIs took up more of their time, as they have to call in drug recognition experts, or DREs, to secure enough evidence for probable cause for an arrest.

Getting that help or a warrant to conduct a blood draw takes extra time in rural areas of that state, the report said.

Doering said that is typical for any state.

"Any time a drug evaluation is done, it takes more time [than an alcohol-related DWI test]," he said. "There's a lot more evidence collected from the person through the course of the evaluation to determine whether or not they are impaired and whether or not it can be linked to a drug category or categories."

New Mexico has about 75 DRE officers. Doering said another 20 are soon to be hired, with four within state police.

With legalization coming up, he said, "we need more DREs on the road."

Department of Health spokesman James Walton wrote in an email the agency's scientific laboratory division, which conducts all lab tests of DWI cases, ran 1,231 of those tests in the 2019 calendar year.

Of those, 745 were cannabis-related — though that does not mean they all came out positive, he said.

Doering said police will need to adjust when it comes to possession, as people can have up to 2 ounces of cannabis under the new law. He added he's not sure what state police officials plan in terms of determining whether someone possesses more than that amount. Field offices have scales to measure weights, he said.

"We just don't carry them in our cruisers," he said.