As the state moves forward to legalize recreational sales of cannabis, questions remain about how law enforcement officials will deal with DWI cases and expunge cannabis-related offenses.
Public safety officials told lawmakers Tuesday the state has yet to establish benchmarks on impairment for cannabis, which could make prosecuting DWI cases involving marijuana difficult.
So will current laws prohibiting officers to request a suspect take a blood test on a DWI stop if the charge is no more than a misdemeanor — which, in New Mexico, means the first three DWI convictions, assuming there are no aggravated circumstances.
“Obviously DWI is a very large concern in the state of New Mexico,” Troy Weisler, acting deputy secretary for the state Department of Public Safety, told members of the interim Courts, Corrections and Justice Committee.
Those are not the only problems popping up on the public safety level. Weisler said a related law expunging criminal records tied to cases involving marijuana-related charges could cost a lot of time and money because some 155,000 cases fall into that category.
“DPS doesn’t have anyone assigned to that full time; it’s a fairly large endeavor,” he said.
Compounding that problem is the need to review each case and see if other crimes were involved that cannot be expunged, said District Attorney Marcus J. Montoya of the 8th Judicial District.
“The [expungement] automatics are possession and paraphernalia, but what about a child abuse case or a DWI which you can’t expunge?” he said.
If his department is able to find a way to expunge those records online, it doesn’t have the ability to ensure they are expunged from other individual law enforcement agencies, Weisler said.
It will become a task involving a lot of paperwork and effort, he said.
Tuesday’s hearing on the issue was one of several revolving around the state’s recent legalization of recreational cannabis use and possession for residents who are 21 and older.
The new law also allows for businesses to produce, manufacture, sell, test and transport cannabis, though rules regulating those industries are still being worked out.
Advocates say the move will increase state revenues, create thousands of jobs and do away with anti-marijuana laws that disproportionately hurt minorities.
But law enforcement officials have warned of the potential for more DWI cases involving cannabis. Over the weekend, a man who drove his car into a semitrailer on Interstate 25 told a deputy he had fallen asleep at the wheel after smoking marijuana.
The driver, who suffered a broken neck, was charged with driving while intoxicated and reckless driving. No one else was hurt in the accident.
Weisler and Montoya said blood draw warrants can help when it comes to prosecuting such cases. So could the creation of impairment standards for cannabis, Weisler said.
In an effort to find a way to deal with that lack of evidence, some states with legalized cannabis have set impairment standards. In Colorado, where recreational marijuana use has been legal since 2012, lawmakers established the threshold for impairment at 5 nanograms of THC — the primary psychoactive compound in cannabis.
Appellate Defender Kim Chavez Cook said that while she did “not disagree with anything” Weisler and Montoya said, she has a different perspective on how things may play out.
She said it’s “reasonable to approach this [new law] with an abundance of caution.”
She added driving under the influence of cannabis has been illegal for so long that practices are in place to detect and prosecute it. She said aside from a likely “uptick” in DWI cases, it should be “business as usual.”
She said DWI cases often involve both alcohol and other drugs, and in those cases it’s easier to prove a driver is under the influence if he or she tops the 0.08 impairment limits set for alcohol in New Mexico.
She agreed that dealing with the large amount of possible expungement records is “going to take a lot of legwork.”
While Senate Bill 2, the expungement legislation, does not eliminate conviction records, it will set up a system for reviewing and expunging criminal records from websites and other sources that are accessible to the public.
It also requires a review and possible dismissal of cases involving people serving sentences for cannabis-related charges that are no longer crimes since the state legalized the possession and use of cannabis for adults age 21 or older.
