On May 16, the New Mexico Supreme Court oversaw arguments on the topic of roadside cannabis testing. According to Santa Fe New Mexican, Nina Luna was pulled over by a law enforcement officer in Albuquerque in 2018. The officer described in his report that Luna had red, watery eyes and slurred speech, and smelled cannabis odor coming from inside her vehicle.

Although Luna stated that she had smoked “a bowl” hours before driving, the officer conducted a field sobriety test, which is designed to determine alcohol impairment. After performing “poorly” on the field test, Luna was convicted of driving under the influence, as well as speeding. 

During the most recent supreme court case, Luna’s public defender argued that the field sobriety test she received should not be admitted as evidence because it does not properly measure cannabis impairment.

Luna’s attorney also asked the Bernalillo County Metro Court that the officer’s testimony be suppressed because he’s not an expert in drug-recognition but was denied. The state District Court ruled that “a reasonable fact-finder could conclude … [Luna] was influenced by drugs to such a degree that she could not safely operate a motor vehicle.”

The state Court of Appeals echoed that decision in 2021. “Administration of field sobriety tests is a reasonable part of an investigation where the officer has reasonable suspicion the person was driving under the influence of alcohol or drugs…defendant has not convinced us expert testimony from a drug recognition expert was required,” wrote Court of Appeals Judge J. Miles Hanisee.

In December 2022, the Supreme Court agreed to hear the case, which led to the events of the most recent hearing on May 16. Luna’s appellate attorney, Luz Valverde, was questioned about evidence of impairment. “What about a circumstance like here, where there’s overwhelming compelling evidence…a person was impaired?” asked Justice David Thomson.

In response, Valverde stated that the evidence in Luna’s case was not compelling. “I would disagree…that the evidence was overwhelming, especially in light of recent studies that show that impairment is so hard to determine based on [field sobriety tests],” Valverde said. 

Valverde continued to discuss that while officers should be able to testify about their observations as laypeople (or non-qualified people within the legal system), but shouldn’t make claims about a person who passed or failed, or claim that pupil size is relative to impairment without any kind of training.

Assistant General Meryl Francolini argued against disqualifying an officer’s testimony because of lack of training, stating that the 2021 Court of Appeals ruling from a Florida case stated that field sobriety tests are “easily understood tests that a layperson can observe and identify signs of impairment.”

“The officer did not need to be a [drug recognition expert] to give the testimony in this case, and any holding to the contrary I think would have pretty dire consequences in the trial courts,” said Francolini. “If this court were to hold that a nontrained officer [in drug recognition] is just totally unqualified to connect signs of impairment to a drug, when he knows what the drug is because he smelled it and the defendant told him that she used it, that’s a slippery slope.”

A ruling was not issued during or directly after the May 16 hearing.

Verifying cannabis impairment is no simple task. A study from May 2022 determined that THC found in blood or breath tests does not indicate impairment. A Canada study from April 2021 emphasized a need for accurate methods of detecting impairment while driving. “We know that cannabis has an impact on driving,” said the study’s lead author, Sarah Windle. “Detecting cannabis, it doesn’t necessarily correspond directly to impairment. That’s a big, big challenge in this literature. At what level is somebody really impaired and it seems that varies on many factors: by (the) individual, by their level of tolerance, how often are they using, what kind of cannabis and its potency are they using.”

In February, a Maryland police department started inviting cannabis consumers to its training academy to demonstrate driving impairment in exchange for water, snacks, and pizza. “Participants are then used as test subjects for officers trying to determine whether someone is too high to drive. That’s not easy. Unlike people who drive drunk, and whose impairment can be quantified by breathalyzers and blood-alcohol tests, it’s more difficult to discern with pot,” wrote The Washington Post in a report.

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Highlighting the death of a state trooper who was killed by a motorist who had THC detected in their blood, Massachusetts Governor Charlie Baker is renewing his effort to combat stoned driving.

Baker, a Republican serving his second term as governor of the Commonwealth, announced Wednesday that his administration has refiled legislation that would “update road safety laws by implementing uniform standards and promoting proven strategies to reduce motor vehicle crashes, and will implement recommendations made by the Special Commission on Operating Under the Influence and Impaired Driving,” his office said in a press release.

“This legislation aims to make the Commonwealth’s roads safer and save lives, and we are grateful to the Clardy family for offering their family’s name and support for this legislation, which will help us avoid impaired driving incidents in the future,” Baker said in a statement. “This bill will provide law enforcement officers with more rigorous drug detection training and will strengthen the legal process by authorizing the courts to acknowledge that the active ingredient in marijuana can and does impair motorists. The bill draws on thoughtful recommendations from a broad cross-section of stakeholders, and we look forward to working with our legislative colleagues to pass this bill and make our roads safer.”

The Baker administration said it has refiled the bill as “Trooper Thomas Clardy Law,” named for the late Massachusetts State Trooper Thomas L. Clardy, who in March of 2016 “was conducting a traffic stop on the Massachusetts Turnpike in Charlton when his parked cruiser was hit by a speeding motorist who swerved across three lanes of traffic,” and was later found to have THC in his blood.

Local television station WCVB reported that Clardy’s widow, Reisa Clardy, attended Baker’s announcement of the bill at Worcester District Court on Wednesday. 

“Our family has been profoundly impacted by the tragic loss of my loving husband. Our children lost their hero, a man who had love for his family and an unquenchable love for life,” Reisa Clardy said in a prepared statement released by Baker’s office. “We wholeheartedly support the implementation of these critical measures to improve public safety in the hope of sparing other families from our sorrow and preventing the heartbreak caused by a driver’s decision to get behind the wheel when under the influence of drugs.”

Recreational cannabis use has been legal in Massachusetts since 2016, a year after Baker first took office. 

Clardy Law is not the first time the Republican governor has taken aim at drug-impaired driving. As his office noted, the legislation was first filed in 2019, and is “based on recommendations issued by a Special Commission on Operating Under the Influence and Impaired Driving, which was created as part of the 2017 law legalizing adult-use marijuana, to develop a series of recommendations to mitigate the negative impacts of increased marijuana use in Massachusetts, including the anticipated increase of impaired driving.”

The commission provided a host of recommendations, which appear in the latest bill, including the following: “adopting implied consent laws to suspend the driver’s licenses of arrested motorists who refuse to cooperate in chemical testing for drugs, as existing law has long required for arrested motorists who refuse breath testing for alcohol”; “[a]dopting a statute authorizing courts to take judicial notice that ingesting THC, the active chemical in marijuana, can and does impair motorists”; “[p]rohibiting drivers from having loose or unsealed packages of marijuana in the driver’s compartment of a vehicle, under the same provision of the motor vehicle code that has long prohibited driving with open containers of alcohol; and “[e]mpowering police officers to seek electronic search warrants for evidence of chemical intoxication, as is the practice in over thirty other states.” 

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