New Mexico Supreme Court hearing addresses cannabis impairment

On May 16, the New Mexico Supreme Court considered arguments related to curbside cannabis testing. According to Santa Fe New Mexican, Nina Luna was pulled over by a police officer in Albuquerque in 2018. The officer described in his report that Luna had red, watery eyes, slurred speech and smelled cannabis odors from inside her vehicle.

Although Luna said she smoked “a bowl” hours before the drive, the officer performed an on-site sobriety test aimed at detecting alcohol impairment. After Luna scored “poor” in the field test, she was convicted of drink driving and speeding.

During the recent Supreme Court trial, Luna’s public defender argued that the field sobriety test she was given should not be admitted into evidence because it does not properly measure impairment from cannabis.

Luna’s attorney also petitioned the Bernalillo County Metro Court to quash the officer’s testimony because he was not a drug recognition expert, but was denied. The state district court ruled that “a reasonable expert might conclude…” [Luna] was so heavily influenced by drugs that she could no longer drive a motor vehicle safely.”

The state Court of Appeals repeated that decision in 2021. “Conducting on-site sobriety tests is an appropriate part of an investigation when the officer has reasonable suspicion that the person was driving while under the influence of alcohol or drugs … the defendant didn’t see us through.” Expert Testimonies Convinced. “A drug detection expert was required,” wrote Circuit Judge J. Miles Hanisee.

In December 2022, the Supreme Court agreed to hear the case, leading to the events of the last hearing on May 16. Luna’s appeals attorney, Luz Valverde, was questioned about evidence of impairment. “How about a circumstance like this where there is overwhelming compelling evidence…one person was impaired?” asked Judge David Thomson.

In response, Valverde explained that the evidence in the Luna case is not convincing. “I disagree…that the evidence has been overwhelming, especially in light of recent studies showing that impairment is so difficult to determine from these findings.” [field sobriety tests]’ said Valverde.

Valverde continued to debate that while officials should be able to testify as laypeople (or as unqualified persons within the legal system) about their observations, they should not make any statements about an individual’s passing or failing, or claiming that the pupil’s size relatively without any training lead to impairment.

Deputy Secretary General Meryl Francolini argued that an official’s testimony should be disqualified for lack of training, saying that the 2021 Court of Appeals ruling in a Florida case found that on-site sobriety tests are “easy-to-understand tests that a layperson can understand.” observe and recognize signs of impairment”.

“The officer didn’t have to be an officer [drug recognition expert] testifying in this case, and any assertion to the contrary would, I think, have quite dire consequences in the courts,” Francolini said. “If this court were to assume that it was an untrained officer [in drug recognition] is just totally inept at associating signs of impairment with a drug when he knows what drug it is because he smelled it and the defendant told him she used it, that’s a tricky business .”

No judgment was rendered during or immediately after the May 16 hearing.

Determining impairment from cannabis is not an easy task. A May 2022 study found that THC found in blood or breath tests does not indicate impairment. A Canadian study from April 2021 emphasized the need for accurate methods of detecting impairments while driving. “We know that cannabis has an impact on driving,” said the study’s lead author Sarah Windle. “Detection of cannabis is not necessarily directly related to impairment. That’s a big, big challenge in this literature. The degree to which someone is actually impaired seems to depend on many factors: the person, the level of tolerance, the frequency of use, the type and strength of the cannabis they use.”

In February, a Maryland police department began inviting cannabis users to its training academy to test for driving skills in exchange for water, snacks and pizza. “The participants are then used as test subjects for officers trying to figure out if someone is too high to ride. That is not easy. Unlike people who drive while drunk, whose impairment can be quantified by breathalyzer tests and blood alcohol tests, cannabis is more difficult to detect,” the Washington Post wrote in a report.