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.