How will legalizing marijuana impact police work?
BERGEN COUNTY, N.J. — Proponents say legalizing marijuana will increase tax revenue and decrease crime. For local police departments across the nation, the change would usher in a new way of policing and some complications, at least in the short term, said law enforcement officials.
“It will change the way we do our job,” said James Batelli, police chief in the college town of Mahwah, N.J.
Some law enforcement concerns focus on unreliable tests for impaired drivers, regulating usage, the affects on bordering states that continue to list marijuana as an illegal substance as well as a continuing black market for those who wish to avoid paying taxes on their purchase.
In New Jersey, the state’s law enforcement sector will face significant changes in 2018 if the governor-elect makes good on his campaign promise to legalize marijuana within his first 100 days in office.
While Republican gubernatorial candidate and outgoing Lt. Gov. Kim Guadagno opposed legalization of marijuana, governor-elect Phil Murphy went beyond calls to expand it for medical use, and promised to legalize it for individuals 21 and older within the first 100 days in office.
“We are sending the youth a mixed message. The outgoing governor has declared a war on drugs with the opioids, and the new one coming in is saying it’s O.K. to smoke pot.”
Existing laws cost between $127 and $143 million each year to enforce, but more importantly they result in higher conviction rates for blacks than whites by a ratio of 3 to 1, Murphy said.
“That is the reason we want to legalize marijuana — not because we can make money off of it,” the incoming governor said during an October election debate.
A bill to legalize marijuana introduced by New Jersey state Sen. Nicholas Scutari in May calls for a 7% sales tax on marijuana and marijuana products that increases to 25% in five years. Tax revenue estimates range from $300 million to $500 million in that fifth year.
In Colorado, the Denver netted $29.5 million in revenue from marijuana in 2015, primarily through taxation. Budgeted marijuana-related expenses for 2016, including those for regulations, enforcement and education, totaled $9.1 million, records show.
If a bill legalizing marijuana is approved in New Jersey, it would mark the first time a state has approved legalization through legislation. As it stands, eight states and the District of Columbia have approved ballot measures since 2012 allowing recreational use of marijuana.
DUI testing for marijuana
One of the main concerns voiced by local law enforcement is the lack of a reliable field test for marijuana. The parking lots of legal dispensaries, much like that of fast food restaurants, often feature customers using the newly purchased product before getting back on the road, said Rebecca Bostrack, the marijuana enforcement officer for the Boulder, Colorado Police Department.
“Also, the increase in distribution of marijuana across state lines means there are vehicles hauling marijuana to other states on the highways and interstates,” she said. “I would assess that those drivers sometimes use their own product while driving.”
The National Highway Traffic Safety Administration has reported a 50% increase in the number of drivers with marijuana in their system from 2007 to 2014.
“The issue isn’t so much as should marijuana be legalized, but more so if it is legalized, how do we keep our roadways safe and what can we do to address the impaired driving issue,” Toms River, N.J., Lt. Christopher Dudzik said.
NHTSA executed its first large-scale study to assess crash risks associated with drug and alcohol use in 2015. The study found those with THC in their system were 1.25 times more likely to be involved in a motor vehicle accident. However, when factoring in age, gender, ethnicity, and alcohol use, the increase in accident risk associated with the presence of marijuana was deemed insignificant.
A study in the American Journal of Public Health published earlier this year “found no significant association between recreational marijuana legalization in Washington and Colorado and subsequent changes in motor vehicle crash fatality rates in the first three years after recreational marijuana legalization.”
In 2013, the year before marijuana was fully legalized in Colorado, there were 55 documented traffic deaths involving drivers that had used marijuana. In 2016, the number was 125. The number of drivers testing positive for active THC went from 18 to 77 over those four years. More than a third of those drivers also tested positive for alcohol, however.
What has risen, according to a study released earlier this year by the Insurance Institute for Highway Safety, are insurance claims from vehicle collisions in Colorado, Oregon and Washington compared with neighboring states that have not legalized recreational marijuana. Claim frequencies were 3% higher between January 2012 and October 2016.
Testing for impairment
Most tests can show the presence of metabolized THC in urine or blood, but proving exactly when someone ingested the drug remains elusive.
“When marijuana is inhaled, there is a very short time that an officer has to complete a blood draw before the active metabolites start to leave the body,” Bostrack said.
The psychoactive metabolite, hydroxy THC, is typically eliminated from the blood plasma within six hours, Dudzik said. The secondary metabolite, carboxy THC, can remain for several days or weeks, he said.
“In New Jersey, a urine sample is obtained and sent to the New Jersey State Police lab for analysis as part of our DRE (drug recognition expert) protocol,” said Dudzik. “Since evidence of marijuana usage can remain in the system for a significant amount of time, one key is to look for the active metabolite of THC, hydroxy THC, in the lab analysis. This is what causes the impairment and euphoria.”
The options for detecting THC also complicate driving investigations involving marijuana compared to alcohol, Bostrack said. There is no roadside test comparable to the Portable Breath Test used for alcohol, she said. The Colorado State Patrol is involved in a pilot program using a saliva swab as a possible roadside test for marijuana, which law enforcement officials have talked about testing in New Jersey, Dudzik said. Officers are otherwise reliant on blood or urine analysis.
“It may take several hours after usage before it can be detectable in urine,” said Dudzik. “This is why the key again goes back to impairment. Cannabis, unlike alcohol, does not allow for a set limit to define impairment.”
Detecting impairment is also complicated by marijuana’s various forms, Bostrack said.
“With marijuana edibles, there is no odor of marijuana such as with smoking,” Bostrack said. “Also, vape pens use vapor rather than smoke, so they have very little to no marijuana odor associated with them, which makes it difficult to determine what is causing the signs of impairment.”
Drug recognition experts
Checking for signs of impairment is standard operating procedure, according to Dudzik, who is the president of the New Jersey Drug Recognition Expert Association.
Officers are able to apply for a search warrant for a blood test if it is not possible to conduct a standard field sobriety test at a crash scene. However, in general, officers use field sobriety tests followed by a breath sample.
“If there is no alcohol detected or their level is under .08 percent BAC and is inconsistent with their observed impairment, then a DRE will be contacted to conduct an evaluation,” Dudzik said.
New Jersey has 458 DREs, second only to California, he said.
“If and when recreational marijuana becomes legal in New Jersey, we would certainly like to see our numbers increase, especially since many towns still don’t have DREs,” said Dudzik. “If an agency needs a DRE, and they don’t have one, one can be called out if needed. Unfortunately, we still have many towns and counties that still need some DRE trained officers.”
Ringwood is one of those towns, said its police Chief Joseph Walker, also president of the county’s chiefs’ association. His department of 21 sworn officers can rarely afford to take officers out of rotation for training without racking up overtime to maintain adequate coverage in the 28-square-mile town.
The drug recognition experts’ training process takes about two weeks, he added. Seven days of in-class training is preceded by 16 hours of preparatory work, and 12 post-class evaluations, Dudzik said.
DRE programs exist in nine counties and funded with grants from the New Jersey Division of Highway Traffic Safety. Typically, 50 officers are trained every year in two classes. Next year, an additional class is planned in hopes to increase the state’s DRE officers by 75.
Marijuana has been legal in New Jersey for medical reasons for roughly a decade. About 12,000 patients have received licenses, however, according to a 2016 report from the state Department of Health.
Everyone without a license caught in possession of 50 grams or less of marijuana in New Jersey faces a maximum of six months in jail and a $1,000 fine.
The proposed legislation would classify possession of 50 grams or less as a civil offense limited to a fine of up to $100 for those 21 and older for the year after enactment.
If the bill becomes law, possession of an ounce or less of marijuana or 5 grams or less of resin will be legal for those 21 and older. Possession between 28.38 grams and 50 grams would become a disorderly person’s offense and anything over 50 grams will remain illegal.
The expected increase in the number of people transporting marijuana will lead to more detection through odor or admission and searches to verify the amounts, but result in fewer fines, said Walker. The balance could come from tickets for public use of marijuana and open containers of marijuana, which have increased significantly in Boulder, said Bostrack.
Illegal growers have also become far more frequent in Colorado since legalization “and they cause home invasion robberies, fires from overloaded electrical sources, and flooding of neighbors’ apartments,” Bostrack said.
Due to those complications, the bill introduced in New Jersey has no provision to make self-cultivation legal. However, advocacy groups have come out in favor of home-grow, noting New Jersey would be the only state to legalize recreational marijuana, but retain a ban on self-cultivation to the benefit of retail stores and state revenues.
Marijuana is also expected to remain illegal in specific locations, such as state college and university campuses that receive federal funding — Ramapo College in Mahwah among them — said Batelli.
The conflict between federal laws and local regulations will complicate enforcement, said Jerry Speziale, the Paterson police director and former Passaic County sheriff. Speziale works as a security consultant for Terra Tech, a California company focused on the cultivation of high-quality medical cannabis. “You can’t look at this in a vacuum,” Speziale said.
What is recreational marijuana?
Marijuana remains listed federally as a Schedule I drug, a depressant with high abuse potential. However, there is a push to change marijuana’s classification due to its medicinal benefits.
Around 0.13% of the state’s population is allowed access. Expanding availability to the level of cigarettes and alcohol is a dangerous game, said Ciro Chimento of the Butler Police Department in Morris County.
“Obtaining the marijuana will be much easier for our younger population once it becomes legal,” he said.
“They’re already using it now,” said Walker.
Lifting the ban would only enhance the public safety concerns relating to marijuana many have held and espoused for years through drug awareness education programs, enforcement protocols and special operations, said Walker.
“We are sending the youth a mixed message,” said Martin McParland, chief of the Rockaway Township Police Department. “The outgoing governor has declared a war on drugs with the opioids, and the new one coming in is saying it’s OK to smoke pot.”
The main concern for law enforcement is the psychoactive component of marijuana, delta-9-tetrahydrocannabinol. Commonly called THC, the chemical provides the mind-altering high. Some medicinal products have no THC at all but many recreational products are designed to have as much THC as possible.
“Opioids are legal with a prescription and now you have an epidemic,” Walker said.”[Legalizing marijuana] would be a disaster. You’re going to have a bunch of zombies running around.”
Walker called legalization a shortsighted cash grab. Recreational marijuana’s cost to society will be higher than the revenue it generates, added Batelli.
Many law enforcement officials, including Speziale, said there may be a place for marijuana.
Medically, marijuana has proven benefits, he said, “but recreationally we have to study if this is going to be another gateway drug.”
What does marijuana do?
How marijuana affects a person will depend on many factors, said Dudzik.
The quantity ingested, the tolerance of the user, the method of consumption, and the concentration of THC must all be considered, he said. Regardless, researchers have yet to prove a specific correlation between THC level and impairment.
“With cannabis, concentration levels effect each person differently,” Dudzik said. “It’s not clear cut like alcohol, where no matter what a person in considered impaired with a [blood alcohol concentration] of .08.”
In a general sense, the drug can disorient people, sap their attention span, impair perceptions of distance and time, and relax inhibitions, he said. However, these effects aren’t present in everyone or in every case.
“In addition, not everyone who ingests cannabis will exhibit the same symptoms,” Dudzik said.
Relatively new methods of consumption include cannabis oil vapor and edibles, which come with varying rates of distribution into the blood stream and THC concentrations, studies show.
“The marijuana industry continues to evolve and create new products that are almost 100 percent concentrations of THC,” said Bostrack. “The increasing levels of THC mean that the consumer may not be as educated about the impacts to their health and behavior and may overuse the product.”
Studies on smoking marijuana performed at Johns Hopkins University released in a 1995 report found that a series of 10, 60-milliliter inhalations of a substance containing 3.55% THC produced an average blood plasma THC concentration of about 125 nanograms per milliliter. After 45 minutes, the concentration dropped to roughly 26 ng/mL.
The legal limit for driving in Colorado and Washington is 5 ng/mL.
Revenue vs. costs
Funding for education, DRE training, pilot programs for testing methods, and an effort to better define impairment is at the forefront of a lot of the legalization conversation, said Dudzik. Local chiefs also point to a potential for more expenses stemming from changes in internal operations.
Boulder has only spent about $500 per year on marijuana-related officer training in the last three years, Bostrack said. However, Bostrack has had to spend a significant amount of time this past year educating patrol officers, citizen’s academy, youth academy, municipal court staff, and management staff.
“Teaching patrol officers how to handle marijuana on a daily basis is very complicated because everything about marijuana is continuing to change,” she said. “State laws and municipal codes are evolving as the state legislator and our city start to see unintended consequences of legalization.”
Bostrack’s $87,000 position and police vehicle are funded by the city in response to the legalization of marijuana. There are also costs associated with disposal of marijuana seized from illegal grows and protective equipment used to complete inspections, she said.
Protective gear in Colorado includes boots with slip-protection, disposable respirators, and, in some cases, Tyvek suits, records show.
Invariably, officers will rush into scenes where marijuana is being used legally without full protection, Chimento added. Those officers will either have to be disqualified from service or expose the department and the community to the possibility of a fatal error, he said.
Local police also express concern about the continuing black market for sales after the law is in full effect. The day-one dispensaries will likely be incapable of providing retail supply to an estimated 1 million state users, Walker said. Later on, buyers will be hesitant to pay the 25% tax rate, Chimento said.
“The black-market dealer … will be happy to sell it cheaper than the state, and still profit handsomely,” Chimento said.
Bostrack said marijuana has created an additional workload in Boulder through community consumption events. Those events, such as the 4/20 gatherings at the University of Colorado, require law enforcement oversight because of the public use of marijuana, she said.
Legalization will not mean less oversight over marijuana, said Chimento. The Bulter chief said he expects increased overtime costs in order to properly monitor, vet, test, document, and prosecute possible offenders who may cross the line from recreational to criminal.