Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. The holiday season always comes with lots of public service announcements to try to prevent drunken driving and the crashes that come with it, right? Now, in the legal cannabis era, there are driving while high warnings too. On the road itself, how does a police officer know if someone is driving illegally because they're stoned on weed?

Well, the New Jersey Supreme Court recently changed how the result of a controversial police method used to determine if someone is driving under the influence of marijuana is used in court. The methods used by what are called drug recognition experts, why are they controversial? Well, the science behind these has come into question by experts, judges, and civil rights advocates who say the protocol could lead to an increase in unnecessary drug-driving arrests and prosecutions.

Let's talk about it. Joining us now is Jelani Gibson. He's the lead cannabis reporter at NJ Cannabis Insider, which is part of The Star-Ledger or NJ.com. If we have time, we'll also touch on his other recent reporting on apparent municipal corruption in the state that's affecting applicants who want to get their hands on cannabis shop licenses. He says it may be impacting the very people New Jersey's legal weed licensing laws were designed to include. Jelani, thanks for coming on WNYC today. Hi there and happy Thanksgiving.

Jelani Gibson: Happy Thanksgiving to you and long time no see.

Brian Lehrer: Let's start with the DRE, the drug recognition experts. Who are they? Can you walk us through the method they use to try to determine if someone is driving under the influence of marijuana?

Jelani Gibson: A drug recognition expert is a police officer that is trained in a technique that they claim can tell you whether or not someone is drug impaired while they are driving. They do what's known as a field sobriety test. This sobriety test will actually be familiar to a lot of people when it comes to drunk driving. It's just that they don't do it as much now that they have breathalyzers.

Basically, it's usually a 12-step process. Stand on one leg, walk and turn, things of that nature. They'll also look at your eyes and everything to see whether or not your pupils are dilated. They'll check for muscle tone, and then they can also put you through a toxicology exam as well. There is a part where they actually interview you and have to read you your Miranda where they interrogate you.

The primary criticism of the protocol by people who have dissented at the Supreme Court and civil rights advocates has been that most of the prosecutions come from the interrogation phase. The technique itself has been posited as being more of an expert interrogator than the protocol actually being based on scientific methods that mathematically work.

What the Supreme Court of New Jersey just recently did is they upheld the fact that DREs could be used in court, but they put caveats and limitations on how they could be used. They recommended that you give jury's instructions on the limitations. They also said that there had to be a good-faith attempt to get a toxicology report. Those are basically one of the primary caveats and limitations that are being talked about here.

I think it's also important to understand that the primary concern about cannabis legalization has been an increase in drug-impaired driving. There are a variety of studies that sometimes show an increase in drug-impaired driving, a decrease in drug-impaired driving, or, quite frankly, the same rate. What becomes even more mathematically difficult about calculating that is understanding the difference between an actual increase in traffic fatalities and an actual increase in testing people for cannabis post-legalization.

Brian Lehrer: Interesting. I want to drill down on a few of those points, including what these interrogation techniques might be that get people who are not high on weed to incriminate themselves. First, listeners, do we have any New Jersey drivers in particular listening who've been pulled over for suspected high driving? 212-433-WNYC. Did an officer pull you over and did you have to follow their instructions in ways that our guest is describing? How'd that go? Did any of you refuse to take the physical test and what happened? Any New Jersey state troopers or anyone else in law enforcement involved with monitoring drunken and stoned driving?

You're invited to call in too, 212-433-WNYC. How do you do it? How do you know that you can have confidence that when there's nothing like a breathalyzer test that somebody you've pulled over is or isn't high on marijuana? 212-433-9692, 212-433-WNYC, call or text that number as we continue with Jelani Gibson who covers cannabis issues for The Star-Ledger or NJ.com at their NJ Cannabis Insider site. How about those interrogation methods? If I'm driving not high on cannabis, how is it that a police officer would ask me a question that would lead me to be prosecuted for that?

Jelani Gibson: Well, the way that most prosecutions usually happen, it would be no different from any other run-of-the-mill interrogation that a police officer would ask you if they suspect you of drug-impaired driving. It's also very important to note here that the DRE protocol itself, some of the dissenting justices in the Supreme Court case did point out other ways in which one can go about proving impaired driving such as interviews, interrogations, and dash cam footage, and also drug paraphernalia.

All of those things are still on the table during a traffic stop and during an interrogation where you can get asked about your previous drug use, whether or not you're on any medications, what the side effects of those medications are. Now, legally speaking, as to whether or not you have to answer those questions or whether what happens if you do not answer those questions, that's when you can go into a gray area territory that a defense attorney will probably be able to more comprehensively answer for you.

Brian Lehrer: What's your best understanding of what people's rights are to refuse to answer questions or do anything else that an officer, once they pulled them over, is asking them to do trying to figure out if they're high on weed?

Jelani Gibson: When you're pulled over on suspicion of drunk driving, and as you know, if you refuse a breathalyzer test, they can take your license away. It's not exactly clear under what forms or circumstances your license can be taken away if you refuse certain portions of the DRE test or if you refuse them all together or whether or not the specific prosecutor is going to have the appetite to do so.

I still think that's one of the things that do have to be parsed out here is what happens if a driver refuses to do the physical test or-- and let's be clear, the physical test is just only one part of the test. It's a 12-step process. There are some steps in which a driver would probably not have that much control over such as one of the steps is interview of the specific officer that pulled you over.

There would be nothing that the driver could do to stop a police officer from speaking to another police officer and that police officer giving their opinion about whether or not they think you're under the influence of drugs or whether or not you're exhibiting some sort of attitude or behavior that is consistent with someone who has ingested drugs, which is usually the only thing that a DRE can say in court.

One of the caveats and limitations put on them was that they can't flat-out say that you were doing drugs. They can only allude to the fact that your behavior was consistent with someone who has ingested drugs. I still think that there's more than likely going to be a lot more challenges on the horizon for those gray areas.

Brian Lehrer: Let's take a phone call. Bo in Cumberland County, you're on WNYC. Hi, Bo.

Bo: Hey, Brian. How are you doing? Yes, I have a pretty good example of that one. This instance happened in 2021 and I don't believe marijuana was fully legal back then. I know that it was in the process at this point. One day, I was pulled over by a New Jersey state trooper. We did the usual back and forth. I gave him my license and all that. Goes back to his car, comes back, and when he comes back, the first thing he says to me is, "Do you have a prescription for marijuana?" I said, "No."

He says, "Okay," because I detect the odor of marijuana. Because I smoke cigarettes as well, so I guess I had a little bit of cigarette ash on my shirt, which he said, to him, appeared like marijuana. He told me to step out of the car and I said, "No," because I knew that it was completely-- I had never smoked weed. I just bought that car. I'd never smoked weed in it. I did not have anything on me. On top of that was that, at that time, I was also on drug court, which is a very intensive type of probation.

Any type of police interaction or charges, anything can seriously impact my standing with the state and my probation. I said, "No." I wasn't resisting, but it was just a jerk reaction when he said that because I knew that I didn't. He immediately opens the door and escorts me out. I wasn't going to resist. He says, "You're under arrest." I said, "You are arresting me because you smell marijuana?" He says, "Yes." I said, "You cannot do that." He says, "Yes I can."

I said, "Okay, so explain this to me. You are placing me under arrest because you say that you smell marijuana in my car." He had not searched it at this point or anything. He says, "Yes." I says, "Call your sergeant right now." He says, "Well, after I searched your car," I said, "Fine." He places me in the back of his vehicle. I'm cuffed. He calls for backup and then he comes back a few seconds later. Before, he has to get my permission to search the car. He says, "Okay. Actually, you're not under arrest, but you're being detained."

I said, "Right, that's what I thought. Yes, you have my permission. Go ahead. Search my car. Get it over and done with and call your sergeant." He never called a sergeant, searched my car, didn't find anything, had to uncuff me, let me go. Just even if he had gone ahead and charged me for cigarette ash or something that he finds that, later on, turns out to be nothing. Just that charge in itself should have gotten me incarcerated for the extent of until I was eventually seen by a judge and all that.

Brian Lehrer: Bo, I got to go for time purposes, but thank you for that level of detail in your story. Jelani, it is a good example of how even an arrest or detention, and I think we don't have time to get into the difference between the two, but if something got onto his record in his particular case because he was being monitored for other past things apparently could have led to big trouble for him just based on this officer's perception that he was smelling cannabis smoke. What does the law say about that if you know?

Jelani Gibson: Yes, so you can't really use smell anymore to search the vehicle. Even before some of the laws were applicable, the Supreme Court, actually, there was one case where it was very similar to what this gentleman was talking about. Smell has been consistently used for searching people's cars. You can't do that.

Brian Lehrer: That's part of the legalization law, right?

Jelani Gibson: Yes.

Brian Lehrer: Smell cannot be used as a criteria to search the car. Why is that, by the way? Let's say somebody's alone in their car, right? You could say, "Okay. Well, the smell of weed, maybe the passengers were smoking," but what if there's just the driver and the car smells like marijuana? What's the rationale for not allowing that to be a criteria for search?

Jelani Gibson: Well, one of the legal difficulties here is that it's very hard to prove whether or not somebody smelled something and whether or not that smell was accurate as--

Brian Lehrer: As in the case of the caller, right?

Jelani Gibson: Yes. How do you prove beyond a reasonable doubt that you didn't smell like something to someone else who was a police officer? It's an extremely hard thing to prove and disprove when it's your word against the police.

Brian Lehrer: One more call. Chelsea in Nassau County, you're on WNYC. Hi, Chelsea.

Chelsea: Hey, how are you, Brian? It's good to talk to you. I was just listening to you guys and I've been talking about this with my friends and family for years. I met a young lady actually through one of the courses you take for insurance to get your points dropped on your insurance. She had been in an accident in Long Island where she was rear-ended, so not her fault, but still the police have to come. She was having a, basically, panic attack and she had high anxiety.

She had a prescription for cannabis and she had not ingested it that day, but she probably had it in her system in general. Because of her behavior, because she was basically freaking out, the officer said, "Well, I'm taking you in because I suspect you're on drugs." They took her in. They do a toxicology report. Because she had cannabis in her system from using it maybe two weeks prior or whatever, she wasn't under the influence at that moment, they still gave her essentially a DUI and she had to just go through all of it.

If she had gone to trial, which is ridiculous amounts of money because I know it's easier to plead out than spend $50,000 to try to get your license cleared, she still had points and drug court and not being able to drive. I'm just wondering where we are with catching the law up to science on where you can have weed in your system for a month. Alcohol is 72 hours. That makes sense. You fail a breathalyzer, you fail. If you are to be going on cannabis, you could have ingested it two weeks prior. Your toxicology is going to show, "Oh, well, you might have been high that day." I'm just wondering where we are with catching up.

Brian Lehrer: Great question. Where's the law on that, Jelani? It is one of the 12 steps that you were outlining at the beginning of our conversation about the 12 steps that police officers use to determine if a driver is high on marijuana. One of the things you mentioned was toxicology. Is it still the case that pot is detectable in your bloodstream two weeks later and they really can't tell if you had it an hour ago or if you had it nine days ago?

Jelani Gibson: Well, it usually depends on what type of test you use, whether you're using a hair test, a urine test, or a blood test. A blood test is stated to be one of the smallest windows of detection, but skipping to the science part here. Basically, both of what New Jersey and New York have been tasked to do in the wake of cannabis legalization is to come up with task forces that basically do research on more accurate ways to find out cannabis impairment.

Now, political insiders had already told me that New Jersey did not want to put that task force together while this trial was going on because the Office of Public Defender who bought the lawsuit could have potentially have used anything that was found out throughout that process to basically press their case forward even more that it was not a valid protocol.

You have to understand that New Jersey and New York have some of the highest number of drug recognition expert personnel in America. If they didn't stand up in New Jersey, more than likely, they also would've been challenged in New York and in other states as well. It could have had a domino effect. Now that this case is over, we will see how New Jersey and how New York rises to this public research occasion.

Brian Lehrer: New York, it's interesting that you say, has some of the most drug recognition experts for people who are driving in the country because they can't even open any dispensaries. They're having so much trouble getting those stores open. Last thing just to sum up. The New Jersey Supreme Court ruling recently on this was the hook for your article in this conversation. What's the bottom line on the Supreme Court ruling in terms of what people can or cannot be subjected to on the road?

Jelani Gibson: Well, people can be subjected to the full test. Much of what the Supreme Court ruling really centers around is how DRE evidence is really able to be used and quantified in court. The DREs, they will still stand. They will still be on the road. Cannabis legalization money, controversially speaking, will also be going to funding more DREs in New Jersey and New York.

Brian Lehrer: Just to clarify the term that you used there that we've been using through the conversation, DREs, drug recognition experts, are they state troopers? That title sounds like somebody in a lab or a college somewhere?

Jelani Gibson: The state troopers are usually responsible in each state for conducting the tests themselves. They usually control what the testing and the standards look like, so to speak, but there are also additional police officers that can be trained in a partial standards of sort, which is another protocol called ARIDE, which I'm pretty sure we don't have enough time to get into here.

Brian Lehrer: Another day for ARIDE. Thank you for this conversation. Jelani Gibson, content lead at NJ Cannabis Insider, which is part of NJ.com, aka, the good old Star-Ledger. Jelani, thanks a lot. We really appreciate your reporting.

Jelani Gibson: Thank you.

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