On April 21, 2022, New Jersey dispensaries began selling cannabis for recreational purposes. While “weed” is legal in New Jersey recreationally, it is still illegal to drive while “stoned” – which begs the question, how does a police officer determine if a driver is operating a vehicle while impaired from “weed” consumption?
Unlike the 0.08 blood-alcohol concentration standard for measuring driving under the influence of alcoholic beverages, no universal standard exists for determining whether a driver is operating a vehicle while impaired by cannabis. As a result, when a police officer pulls over a driver, he suspects is impaired from cannabis use, the issue for trial purposes is whether the officer’s observations are “scientifically reliable” and can be used by the municipal court judge in his decision.
As a result of this concern, the New Jersey Supreme Court appointed a special master (retired Appellate Division Judge Joseph Lisa) to investigate the alternate methods used elsewhere to determine whether a driver is impaired from cannabis consumption and whether those testing protocols are reliable. The idea behind the special master’s appointment was to establish a uniform protocol in New Jersey so that Police Officers could be trained to know the signs of impairment from cannabis consumption and be able to make reliable observations that can be used for conviction purposes.
As a result of his investigation, the special master issued a 334-page report examining the alternate protocols used elsewhere and laying out a suggested drug-recognition expert (DRE) protocol for Police Officers in New Jersey to follow when pulling over a driver suspected of driving under the influence of cannabis consumption.
The DRE model calls for police officers to be specifically trained to administer a 12-part test on a driver before offering findings on whether the police officer believes that the person is driving while stoned. The DRE examination includes examinations of the subject’s eyes, evaluating muscle tone, taking multiple readings of the subject’s pulse, and asking the subject to touch a finger to his or her nose and to balance on one leg.
Presuming an officer has specific training on this new protocol, he has the right to administer the 12-part test to a driver he suspects is driving while impaired and for trial purposes, the police officer can now testify at the trial as to the administration of that 12-part test and why he believed the individual was impaired.
In permitting the use of this new protocol, the New Jersey Supreme Court has acknowledged that the police officer’s observations in and of themselves are not equal to the reliability of the 0.08 blood-alcohol concentration standard in breathalyzer machines but presuming he has undergone the protocol training program, his observations are admissible at the trial and can be relied upon by the municipal court judge as a valid form of accepted evidence in his ultimate decision on guilt or innocence.
