In April 2022, New York Gov. Kathy Hochul and a coterie of other state lawmakers and public-safety officials launched a firm yet nebulous public-safety campaign warning people that they shouldn’t be driving high. The initiative pulled off the neat trick of informing citizens that certain behavior is prohibited, without telling citizens exactly what that behavior is.
Called “Cannabis Conversations,” the campaign will be emphasized in an upcoming series of billboards, commercial sports and other public service announcements (PSAs) to complement similar warnings against drunk driving. But what, exactly, is “driving high?” Unlike drunk driving, that’s not something Hochul—nor anyone else in states where cannabis is legal—has been able to satisfactorily define.
Nevertheless, Hochul is the latest public official to highlight a curious situation that’s proven one of the more complex and nagging problems to arise during the marijuana legalization era.
Burden of Proof, Body of Doubt
In one sense, driving while high is not unlike pornography: You know it when you see it—if “you” are a law-enforcement official who’s a drug-recognition expert, determining whether to write a ticket or make an arrest for a misdemeanor offense.
Under New York state law, drunk driving and driving high are outlawed under the same criminal statute. But unlike the first wave of states to legalize cannabis, there’s no strict “legal limit” for cannabis impairment in New York. This is because other states such as Colorado have ditched limits like the initial standard of five nanograms of cannabis metabolite per milliliter of blood—because, unlike alcohol, cannabis metabolites are detectable in the human body long after the effects have worn off. For that reason, New York state law has no “per se” standard for impairment.
So, while this standard may be workable while out on the road, where a law enforcement officer can use various metrics, i.e., erratic driving, to make a stop and other metrics to determine impairment—slurred speech, red eyes, the scent of cannabis—it’s unclear what will happen in court, where defense attorneys were winning too many “stoned driving” cases.
In an e-mail, Jason Gough, a spokesman for New York’s governor, reiterated what Hochul and other officials have said: It’s illegal to drive under the influence of cannabis, to consume cannabis while driving or to have your friends burn a blunt in the back when you’re driving them around.
“We’re undertaking a public education campaign to help make sure New Yorkers know that if they drive high or impaired, they could be charged or hurt others,” said Gough, who added that the state would devote “cannabis revenue funds” towards the police: to train more drug-recognition experts to suss out the above, and to develop “emerging tools” such as cannabis breathalyzers “that could be used to accurately detect whether a driver is impaired by cannabis.”
OK, but what’s impairment? Gough referred Cannabis Now back to his original statement—which acknowledged, indirectly at least, that there’s no cut-and-dry standard, and it will be up to individual law-enforcement officers to decide. But will their word be enough to stand up in court? And what can a responsible, safety-minded citizen do?
What is Driving While High?
For one, people should be honest with themselves. If you feel too stoned to drive—if you feel impaired—you probably are. But what if you’ve had your wake-and-bake, and followed that up with coffee and a relaxing morning—and you feel fine?
According to recent research, cannabis users can expect their driving abilities to return to normal about three-and-a-half hours after getting stoned—or, in a laboratory setting, using cannabis to achieve the satisfactory effect. There’s a brief period where users feel a false sense of security, at about the ninety-minute mark, and then abilities return at around the three-hour mark before baseline returns at hour four.
That doesn’t do much good for someone who microdoses—that is, never used cannabis “to satisfaction” like the lab-test subjects. Nor does it give you a clear and satisfactory answer to the initial problem.
Legal experts say that the determining factor may be a driver’s ability prior to the stop. That is, if they were driving like a high person, and then the drug-recognition expert determines they looked like a high person, then a judge and/or a jury may be more likely to decide that yes, they were, in fact, driving high.
“I think drug-recognition experts, in addition to other things, such as glassy or red eyes and slurred speech, are going to have to say, ‘We saw them swerving, or making illegal lane changes,’” said David C. Holland, a New York City-based criminal defense attorney and executive director of Empire State NORML.
That may change, of course, if the driver was involved in an accident. In that case, tacking on an impaired driving charge may become axiomatic—or at least an easier sell in court. Which highlights a convenient truth: If you don’t want to get busted for driving high, don’t do it. In the meantime, getting busted for driving high while you’re not, will remain a very unsatisfying and quite real possibility.