The downsides of marijuana legalization

(Tanjila Ahmed)

When the Saugerties Police Department was shopping around for a new K-9 officer last year, Police Chief Joe Sinagra made what some might consider a strange request. The department, Sinagra said, wanted a dog that was not trained to sniff out marijuana, the most commonly used illegal drug. Sinagra said he was preparing for something that seemed far-fetched a decade ago, but now feels virtually inevitable — the full legalization of marijuana for adult use in New York State.

“There is no doubt in my mind that our governor is on a mission to legalize marijuana this year,” said Sinagra. “So we’re preparing for it. We’d be fools not to.”

Indeed, last month in his state of state address, Gov. Andrew Cuomo, long a skeptic on legal weed but now citing the potential tax revenue and the disproportionate impact of marijuana enforcement on minority communities, laid out plans for legalization. Meanwhile, Hudson Valley residents are flocking to Massachusetts, where legal pot is available just a few miles over the state line at dispensaries in Great Barrington and Pittsfield.

With the era of legal marijuana seemingly at hand, law enforcement officials in Ulster County are wrestling with what it will mean and how they will adapt. Some, like Sinagra and Ulster County District Attorney Holley Carnright, said they worry about unintended consequences and negative effects ranging from increased rates of marijuana-impaired driving to exacerbating the opioid crisis.

“There’s a segment of the population that, if you make marijuana more available to them, it is going to impact us in a criminal way and in a mental health way,” said Carnright. “This discussion seems to be focused on the revenue [from taxes on legal pot] but no one is talking about the cost.”

High on that list of concerns is how to deal with marijuana-impaired driving if possessing and using the plant is no longer an infraction or probable cause for police action. Police officials opposed to marijuana legalization point to a study by the Colorado Department of Transportation that showed a significant spike in marijuana-related traffic fatalities since legalization. But a study by the American Journal of Public Health found no discernible increase in fatal accidents in marijuana-legal states. Another by the Insurance Institute for Highway Safety found a slight increase in damage claims in states with legal recreational pot. Nevertheless, local police officials say at this point, New York lacks both the equipment and the legal framework to aggressively take on stoned driving. “It’s not the possession cases I worry about,” said Carnright. “It’s the driving cases.”

Currently there’s no legal standard for impairment by marijuana analogous to the 0.08 percent blood alcohol content for drunken driving. While there are roadside test kits to detect marijuana use, similar to the portable breathalyzers used to detect the presence of alcohol, none have been tested and approved by New York courts. In Saugerties, Sinagra said, the department was weighing the purchase of a $4,500 mobile marijuana test kit in anticipation of an increase in impaired driving following legalization.

As things stand now, building a solid case for marijuana-impaired driving usually requires the services of a specially trained “drug recognition expert.” It can take up to a year of training and clinical work before such an expert is certified to testify in court about a suspect’s level of impairment. Sinagra said he believed there were just three certified DREs on the job in Ulster County and none work in Saugerties.

“It is much more difficult for police and the DA’s office to make a case against a driver impaired by marijuana than it is for someone impaired by alcohol,” said Sinagra.

K-9 layoffs looming?

In addition to impaired driving, law enforcement officials also expressed concern that K-9 programs could be badly disrupted by marijuana legalization. In states where the plant is legal, police dogs trained to detect marijuana have been forced into early retirement after courts ruled that their alert signal no longer constituted a valid indicator of illegal activity. If New York courts follow suit, police agencies across the county could be forced to retire their dogs or shift them to duty at the jail or in schools, where marijuana will remain off-limits.

While state lawmakers hash out details of a marijuana legalization bill that is expected to pass as part the state budget process this spring, the plant remains illegal. But many law enforcement officials concede that marijuana possession, even in significant amounts, has long been a low priority. Carnright notes his office rarely, if ever, seeks jail time for pot possessors, even those caught with more than 10 pounds — technically enough to merit conviction on a class C felony and 15 years in state prison.

Indeed, a 2017 analysis by Ulster Publishing found that over the previous decade just 14 people had been sentenced to time in the county jail for misdemeanor pot possession.

“I think we have the right balance here in Ulster County,” said Carnright, discussing his office’s approach to marijuana growers. “We fine them, we take their take their grow lights and we make them pay for the electricity they stole [to power the growing operation]. But we don’t lock them up.”

Other priorities

Brian Aitkin, president of the Kingston Police Benevolent Association, has been on the job in the department’s patrol division for seven years. Aitkin said simple possession was a very low priority in a busy urban department where officers were usually too busy responding to fight calls, domestic violence incidents and other routine matters to worry about residents smoking pot on their front steps. The most common remedy, he said, was for officers to tell the offenders to take it inside.

“Nobody wants to get into a fistfight over some weed,” said Aitkin. “Nobody wants to have to tase a guy and get investigated and get their name in the paper over that.”

Aitkin’s boss, KPD Chief Egidio Tinti, agreed that in these waning days of marijuana prohibition, officers are likely to take a hands-off approach to low-level possession. Recently, Tinti said, he fielded a phone call from a city resident irritated by the smell of pot smoke wafting from his neighbor’s yard. After talking it over with the complainant and determining that the neighbor was not dealing weed from his residence, Tinti offered to make a phone call to ask them to be more discreet.

“He said he didn’t really want us to do anything,” said Tinti. “We kind of laughed it off.”

In Saugerties, which routinely issues press releases on marijuana possession busts, Sinagra said that his department would continue to enforce the law as long as there was a law to enforce. Granting officers discretion when it comes to whether to make an arrest for weed, Sinagra said, would be unfair.

“How can I say, we’re going to arrest your son for this, but not this person’s daughter?” said Sinagra. “It’s still illegal and we will continue to enforce the law until such time as the state chooses to make it legal.”