Don’t Smoke and Drive

In March 2021, New York became the 15th state to legalize the use of recreational marijuana. Now when New Yorkers turn 21, they can legally consume cannabis, possess 3 ounces of it, smoke it in places where cigarette smoking is permitted and even grow a prescribed amount in their homes. But there are limits.

“When marijuana was recreationally legalized, people thought they were free to smoke with impunity, but that’s not true,” says Karl C. Seman, a criminal defense attorney at Grunwald & Seman. 

“The law’s passage didn’t give people a free pass to abuse or misuse marijuana while operating a motor vehicle,” says Jeremy Saland, a criminal defense attorney at Saland Law. 

In New York, a driver’s blood alcohol content (BAC) dictates the degree of an alcohol-related offense. A driver with a BAC of .05 to .07 is charged with driving while ability impaired (DWAI), a traffic infraction. However, a driver with a BAC of .08 or higher is charged with driving while intoxicated (DWI)—a misdemeanor or felony. 

This distinction evaporates under a DWAI-drug charge. “Drugs are significantly different than alcohol,” says Steven Epstein, a criminal defense attorney at Barket Epstein Kearon Aldea & LoTurco. “Driving when your ability is impaired by drugs is [at minimum] a misdemeanor.” If marijuana has impaired your ability to drive, it doesn’t matter if you’ve had one puff or 10. “There is no threshold amount for illegality,” says Saland.

Testing Complications

How the police determine impairment is also different. Most people are familiar with alcohol breathalyzers, but there’s no equivalent for cannabis. “There is no scientifically approved machine that proves THC impairment in the street,” says Seman. 

The fact that a marijuana marker can remain in a person’s fat cells for up to 30 days after use only complicates matters. “These cases require observational evidence, which is much different than the standard DWI, which is one and done,” Seman says. 

As New York has no per se cannabis law, marijuana-related DWAI cases turn on whether one drove while impaired and if marijuana caused that impairment. “In part, that is a subjective determination based on the observations of a police officer,” says Saland. 

That said, clarity does exist in certain areas. For instance, if impaired driving is suspected and the odor of marijuana is noted, “that odor alone is not enough to prove impaired driving,” says Seman.

Epstein says marijuana saliva tests, akin to a COVID-19 test, are being used sporadically in New York as officers have them, but adds, “These tests could be susceptible to error and will have to be confirmed using a different scientific device.” 

“The science has not caught up with the legislation,” Seman adds.

Reality of Legalization

If you are in an accident and marijuana is seen in your car, a toxicology test will most likely be performed. If the test shows the presence of THC, you will be charged with a DWAI-drugs, even if you haven’t smoked marijuana in weeks. For this reason, Saland, Epstein and Seman emphatically advise against keeping marijuana in your car. “You never know what is going to happen,” says Epstein.

The mode by which one ingests marijuana impacts the drug’s effect. “People who take edibles should be careful. While inhaled marijuana affects your system almost immediately, the full effect [of edibles] can take up to two hours, can last longer and can be more potent,” says Epstein. 

Additionally, a medical marijuana card will not get you off the hook. “Alcohol is legal, prescription drugs are legal, but just because they are legal doesn’t mean you can drive while being impaired by them,” adds Epstein. 

These attorneys have not noted an uptick in DWAI-drugs cases since the 2021 legalization, but all note the importance of sober driving. “Marijuana use is not being specifically targeted, the police are just interested in making the road safe from any type of influence,” says Epstein.