ALBANY, N.Y. — Governor Kathy Hochul has proposed altering a small piece of the state’s recreational cannabis legislation that has advocates and law enforcement divided.
The change includes adding back “the odor of cannabis, burnt cannabis or other drug” to establish reasonable cause to compel a driver who was pulled over on suspicion of driving while impaired or involved in a crash to submit a court-ordered blood test.
When New York’s MRTA, or Marihuana Regulation and Taxation Act, was signed into law in March 2021, law enforcement officers were prohibited from using the smell of marijuana during a traffic stop.
“What the Governor is proposing now is going back now basically going back to the original rule and it’d be huge,” said former Erie County District Attorney turned partner at Lippes-Mathias John Flynn.
Flynn recalls how police departments statewide worried they would not be able to adequately combat the issue of driving while high without using their nose. A test for detecting marijuana roadside does not exist.
He noted that since cannabis was legalized for recreational use, like other states that came before New York, it saw an increase in impaired driving specifically related to cannabis.
The proposed language does not fully revert law enforcement to pre-MRTA guidance, but advocates for legalization worry it could be liberally applied. Flynn explained that previously the smell of marijuana could be used to establish cause for searching a vehicle, leading officers to perhaps other illicit drugs and guns.
Assembly Majority Leader Crystal Peoples-Stokes, who helped construct the MRTA, worries the change could have “unintended consequences.”
“I am aware of the proposal, and I am concerned that it re-criminalizes the plant while also moving backwards on the intentions of the MRTA,” People-Stokes said in a statement to 2 On Your Side.
She added, “There are ways to address legitimate traffic safety concerns, but using the odor of cannabis as a reasonable cause to compel a chemical test should not be considered and will have detrimental, unintended consequences.”
Flynn adds that any reasonable defense attorney could question why police used the smell of marijuana to compel a driver during a traffic stop or a crash.
As Flynn points out, having personal quantities of marijuana in your car is not illegal and neither is smoking it recreationally.
“The fact that the car smells of marijuana doesn’t necessarily mean that the smell is coming from the person’s mouth…the other problem is that when you smoke marijuana the smoke of the marijuana tends to get on your clothes,” Flynn said.
In a statement, the New York State Office of Cannabis Management is also opposed to the Governor’s proposal.
“The Office of Cannabis Management remains committed to upholding the principles of the Marijuana Regulation and Taxation Act (MRTA), which was designed to end the criminalization of cannabis and create an equitable, well-regulated industry. New York has taken significant steps to move away from outdated enforcement practices that disproportionately harmed communities of color, and we are working to make sure we can combat drugged driving without undermining this progress. We look forward to working with stakeholders throughout the budget process to ensure that cannabis policy in New York continues to reflect the law’s commitment to fairness, public safety, and justice.”
