Why It’s So Hard to Crack Down on Stoned Drivers in New York

A woman in a sweater with a NASA logo rolls a joint while sitting in the driver’s seat of a car.
Marijuana frequently rides along with New York drivers, but few are charged with driving high.

Since recreational marijuana was legalized statewide in March 2021, weed now seems ubiquitous on New York City roadways. At smoke shops, customers drive off after blazing up. In motion or at red lights, smoke wafts from car windows, the smell mingling with exhaust fumes in a pungent miasma.

“It’s coming from all walks of life. It’s all over the city,” said Jayson Vasquez, 39, who has worked as a bike messenger in New York City for 13 years. He sees and smells more and more drivers smoking, even as they negotiate heavy weekday traffic, puffing away behind the wheel and straying from their lanes.

“You’re like, ‘Hey, hey, HEY!’” he said, “and they’re just not paying attention. It’s a real problem for me.”

A man in a blue hoodie and matching cap poses with his Trek-brand bicycle.
Jayson Vasquez said the smell of pot is inescapable — and alarming — as he pedals around the city.

State law still forbids smoking pot before or while driving. On paper, the consequences for driving high are similar to drunken-driving charges: First offenders face fines of up to $1,000, a six-month license revocation and possibly as much as a year in jail.

But arrests are scant in New York, a city of 8.5 million residents with more than two million cars and 36,000 police officers. Police officials said they arrested 204 people last year for driving under the influence of drugs, and at least 83 so far this year. It is unclear how many arrests were for marijuana, because police officials do not break down arrests by type of substance. By comparison, there were 3,291 arrests last year for drinking and driving.

“The arrest numbers are embarrassingly low. We’re barely scratching the surface,” said Kevin Sabet, director of Smart Approaches to Marijuana, a group that opposed the 2021 legalization law and has called for more enforcement of driving under the influence of marijuana. “We’re turning a blind eye to this — we’ve bought into this lie that it’s harmless.”

There were well over 200 drug-related fatal crashes a year across the state between 2017 and 2021, according to the Institute for Traffic Safety Management and Research. This has surpassed the number of alcohol-related crash fatalities in recent years.

In explaining the low arrest numbers, New York City police officials noted numerous hurdles in cracking down on driving high: the lack of a Breathalyzer-type device for evaluating blood marijuana levels, the difficulty in proving impairment and legal limitations when apprehending stoned drivers. By contrast, alcohol arrests are more straightforward, typically based on breath tests and clear rules on impairment linked to blood alcohol levels.

The pervasive use of marijuana arrives as New York struggles to make its deadly streets safer with programs like Vision Zero, its 2014 traffic safety initiative. Since its creation, fatal crashes declined to nearly 200 in 2018 from around 260 a year, but then increased to more than 250 in 2021 and 2022. There were 51 fatalities through March of this year.

Cannabis increases the risk of collisions by delaying reactions, altering time and distance perception, and affecting motor coordination and focus, said Sgt. Donald Schneider, a Queens-based member of the New York City Police Department’s highway patrol who oversees the department’s testing of drug-impaired drivers.

“You lose the ability to multitask and that’s why it’s so dangerous for driving,” said Sergeant Schneider, one of the department’s 19 certified drug recognition experts, specialized officers who can evaluate whether an arrested driver is truly impaired.

A police officer stands amid a flock of N.Y.P.D. motorcycles.
Sgt. Donald Schneider, a drug recognition expert, said pot use makes it difficult to pay attention to more than one thing at a time.

But to many motorists, especially younger ones, getting ticketed for marijuana use is so uncommon, it is not a huge concern.

“Everybody’s pretty chill about it,” said Siul Soto, 18, who as a counterman at the Top Shelf smoke shop in Forest Hills, Queens, sells edibles, pre-rolled joints and pungent buds of Gorilla Glue marijuana, named for its tendency to leave users stuck to the couch.

“For a lot of people now, being high is their natural state, so everyone is smoking and driving,” he said.

Mr. Soto says many young people believe driving high is far safer than driving drunk. He believes weed to be a skill-sharpener, whether with driving, or schoolwork, sports or video games.

“They brainwash you to think weed makes you all confused and slow,” Mr. Soto said. “My experience, you’re actually more focused when you smoke.”

There certainly did not seem to be much trepidation about smoking and driving one evening last month at an unlicensed deli-style smoke shop in Morningside Heights. Customers smoked their purchases at store counters before hopping into cars outside and driving off.

Younger drivers are more likely to smoke and drive, and to be involved in many of the hundreds of fatal accidents a year statewide that authorities say are connected to drug use.

Before the 2021 legalization of cannabis, Mr. Sabet said he and other advocates had raised traffic safety concerns to the lawmakers spearheading the legislation. But more than two years after the law’s passage, he said, “We have not settled this issue at all.”

Charging a driver with drug impairment involves an extensive evaluation, which lawyers regularly challenge in court as amateur science. By contrast, a drunken driver’s fate can be sealed with a positive Breathalyzer reading alone. Many drivers impaired by marijuana are also legally drunk, which statistically turns the arrest into drunken driving, said Inspector Sylvester Ge, commanding officer of the department’s Highway Patrol division.

For the Police Department’s highway unit, the issue is personal. One of their officers was killed in 2021 by a driver they said was impaired by alcohol and marijuana.

The police said the driver fatally struck Officer Anastasios Tsakos as he was directing traffic off the Long Island Expressway in Queens. The authorities said she sped past traffic cones and lights and hit Mr. Tsakos with such force that it sent him nearly 40 feet in the air and caved in her hood and windshield.

And in the Bronx a year ago, a 25-year-old male driver with marijuana in his system misjudged his speed while approaching an exit ramp on a Bronx highway and crashed into a nearby house, ejecting and killing him and injuring his passenger, the police said.

But with no biological way of measuring whether someone is high, cases often rely on an officer’s determination after more than an hour of questioning a driver, which also involves some cognitive tests.

An expert’s 12-step evaluation includes pupil examinations, coordination tests, and balance and movement exercises, Sergeant Schneider said, and even taking drivers’ pulse and blood pressure.

“We’ve made the process so cumbersome that there’s no reason for law enforcement to focus on this issue,” Mr. Sabet said.

Police departments have yet to incorporate quickly developing enforcement technology, like portable consoles that serve as roadside video game-type devices to test response times and cognitive and motor skills.

Most officers have some training in basic roadside sobriety testing. The 2021 legalization of marijuana prompted a call to speed the certification of drug recognition experts, the highest level of evaluator and a crucial factor in securing convictions. But among more than 50,000 law enforcement officers in the state and more than 500 police forces, there are only 446 certified drug recognition experts.

State officials said they have increased training to roughly 100 officers per year. One limitation was that the course required three weeks of classroom and field training and accepted only select officers. The certification test includes a clinic where trainees prove their drug recognition skills by interviewing people who have just consumed them.

Among the New York City Police Department’s roughly 36,000 officers, more than 14,000 have received some training since 2018 in the basics of detecting marijuana impairment, but only 19 are certified drug recognition experts, Inspector Ge said.

Sergeant Schneider said enforcement was more complicated than simply spotting some cartoonish smoke-billowing scene resembling a Cheech and Chong movie.

A mere smell is not a valid reason to stop a vehicle, so officers must often wait for a traffic violation or a crash to see whether signs of impairment warrant taking the driver to a nearby station house and calling in a drug recognition expert, he said.

Carlos Polanco, 41, of Harlem, said he and his friends used to smoke while driving to avoid being arrested on sidewalks, building stairwells and rooftops.

“Now that it’s legal, we can smoke out in the open,” said Mr. Polanco, a security guard at Indoor, a dispensary in Harlem. “Which is good, because we got into a couple close calls, smoking in the car.”

A man in a black balaclava and purple sweat suit sits on a chair beside an electric scooter on the sidewalk outside of Indoor, a cannabis shop.
Carlos Polanco, a smoke shop security guard, said that before the drug was legal, he and his friends would take refuge in cars so as not to get caught.

Source:  The New York Times - 5/20/23