How does legal weed change policing?

By John Donegan

This story originally appeared in the 4/16/21 edition of the Westmore News. For the original article, follow the link.

With the legalization of cannabis, police officers across the state must now learn, enforce and abide by a new set of rules.

With a few exceptions, anyone 21 or over can now smoke weed anywhere one can smoke tobacco. Localities can create their own rules regarding where consumption will be permitted and whether dispensaries can conduct business, leaving villages and towns to weigh whether it’s worth pumping cannabis into the commercial sphere or opting out and losing the additional state funding.

The bill’s lack of ample restrictions was intentional, to give local governments the flexibility to adopt their own rules on where people can smoke weed. Towns and villages are also allowed to decide whether they will permit dispensaries to open shop, on the condition that if they ban cannabis stores, they forfeit the tax revenue accrued.

While municipalities decide how to proceed, law enforcement agencies are left to figure out how to enforce the new law, specifically how they approach the searches, seizures and arrests surrounding a controversial drug with a controversial history.

“The impact on law enforcement of the legalization of marijuana is yet to be determined,” said Rye Brook Chief of Police Gregory Austin. “All members of the Rye Brook Police Department have been given direction on the changes related to possession of marijuana (charges) and will act accordingly by what is permissible by law.”

Port Chester Police Chief Christopher Rosabella said the department stopped enforcing possession of marijuana violations a year ago.

“It was not much of a shock to us that the law was passed,” he said. When the legislation was signed, Rosabella sent out an email to the officers notifying them of the change, including a synopsis of the law. “On our end, not much has changed because we’ve been doing it this way for the past year.”

Legal smokers can carry up to three ounces of weed on their person and can store five pounds in their home. Many drug busts for cannabis confiscated and photographed by police and displayed on nightly news programs involve a smaller amount than what is now allowed in anyone’s home.

One cannot smoke weed in places where tobacco is prohibited such as restaurants, bars, workplaces and some parks. To do so would not be criminal though. It would be a violation of public health law.

State law prohibits smoking and vaping in almost all public and private indoor workplaces, including restaurants and bars, and within 500 feet of schools, while Port Chester village code additionally prohibits smoking in bed and by taxi operators while in their cabs. Rye Brook doesn’t have extra restrictions against cigarette use, according to its village code.

Traffic safety has been one of the biggest issues since recreational cannabis first came to the floor and partly why the bill was stalled for the last two years. Under the new legislation, officers cannot legally search a vehicle based on the smell of cannabis.

“We’re going to have to definitely do a refresher on driving while impaired training, making sure everyone is up to date,” Rosabella said.

Driving while consuming cannabis is not legal—applicable to both the driver and any passengers—in the same way open alcohol container laws currently exist. But the difference is now it can result in a ticket, not an arrest. There are exceptions, though. If an officer suspects the driver is impaired by cannabis, they can search any part of the vehicle within arm’s reach of that person.

Prior to the new law, New York police officers could search a vehicle based on smelling marijuana, which has been touted by prosecutors as being instrumental in discovering illegal guns and more serious drugs. Civil rights advocates, however, argue that this comes at the cost of people’s privacy rights and results in disproportionate arrests and harassment in communities of color.

One of the aspects of the new law still being sorted out is determining how to consistently tell if someone is impaired by cannabis, as a breathalyzer can do for alcohol intoxication. Right now, there is no roadside test for cannabis.

Instead, local law enforcement deploys specially trained officers, known as drug recognition experts (DRE), who conduct field tests and rely on observation—though certification in the program is not required for an officer to issue a ticket. Port Chester currently has one officer trained in Advanced Roadside Impaired Driving Enforcement (ARIDE), a prerequisite to DRE, and is currently awaiting a date to begin training. For now, when the police department sets up DWI checkpoints, they access a Westchester County DRE to help conduct the stops.

According to Chief Austin, the process of becoming a DRE is difficult—involving extensive training and practical exams, the second part of which are being held in Florida. Rye Brook has only one DRE on staff.

“That’s a very difficult process to go through,” Austin said. “The training is very intense…and you have to maintain it, like a skill. I don’t see us really doing that; we don’t have the bandwidth to be able to do that right now.”

With legalization, the expectation is that overall arrests will decrease, which is largely a benefit for police and others within the justice system, who can now focus their time and resources on more serious crimes. According to an analysis by the New York Drug Policy Alliance, the average marijuana possession arrest costs taxpayers upwards of $2,000.

Some justice officials also see this bill as a chance to free up the courts while getting law enforcement back to solving issues that build more trust with the community.

“From the perspective of the judiciary, I think that there will be less arrests and less people going through the court, which in a way shows how society has evolved,” said Port Chester Justice José Castaneda, who will be serving as a new Rye Town Court judge starting in May. “Behavior that at some point was sanctioned is not anymore because society as a whole changed its views, which is a benefit as it will add more tranquility when people are not being dragged to court.”

Besides the New York State Association of Chiefs of Police and the state Parent Teacher Association, another group has been widely outspoken about the impact of recreational weed that might come as a surprise: truckers. The Trucking Association of New York said while it’s not against legalizing weed, they told legislators they want to keep the roads safe by allowing for more research.

“The highways are our workplace, and without the ability for us to test for impaired driving, we are just very concerned as to whether or not we will potentially see an increase of accidents related to the legalization as a result,” explained Kendra Hems, president of the Trucking Association of New York.

A 2019 comparison by The Journal of the American Medical Association (JAMA) between alcohol and cannabis found that drunk drivers were 18 times more likely to cause a fatal crash than sober drivers, while stoned drivers were two times more likely. And two separate studies by the same organization found California’s legalization of medical marijuana was linked to a decrease in motor vehicle fatalities.

A longitudinal analysis by the Journal of Experimental Criminology computing the motor vehicle fatalities in Colorado between 1996 and 2015 showed “a large, sustained decrease in statewide motor vehicle fatalities amounting to an annual reduction between 588 and 900 vehicle fatalities.”

Legalizing cannabis in the state is meant to correct decades of criminal justice laws in New York, provide a social equity fund for communities affected by the war on drugs and ensure those same communities are allowed and motivated to participate in the expected billion-dollar industry.

“It’ll definitely help build trust between us and the community,” Rosabella said. “We just need to give the law some time to play out and see where it takes us.”

That said, it will be undeniably strange for officers to stroll by someone smoking weed legally on the street.

“It’s different,” Rosabella said. “I’ve been doing this for 27 years—to all of a sudden see someone smoking marijuana as you walk by is going to be a little weird.”

Concerns have been raised by law enforcement and school administrations that legalization is potentially harmful to children, as it provides easier access to cannabis for the general population.

“Marijuana is allowed wherever tobacco smoking is allowed, so my concern is smoking in the parks around young kids,” Rosabella said. “That’s something that, you know, I’ve been in conversation with the village about.”

Rosabella wants there to be a ban on smoking cannabis in public parks. “That way we don’t have to subject young kids to marijuana,” he said.

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