Cuomo Corners Chronic Cannabis Conviction Conundrum

Cuomo Corners Chronic Cannabis Conviction Conundrum, Clearing Currently Condemned Andrew’s Administration Affirms Albany’s Application Amending Ancient and Abusive Act

New York lawmakers attempted to correct the state’s archaic marijuana laws and their effect on minority communities, but failed to do anything that actually protects the populations. While the efforts to legalize recreational marijuana use failed, the decriminalization law that goes into effect in late August operates to lower penalties for possession and attempts to correct several-decades of uneven punishment on its previous offenders.  This means that if you have a criminal marijuana possession conviction, it’s time to get it removed from your record!   First, what does the new law do moving forward? Second, what does the new law do retroactively?  Third, realistically, does it really correct what it says it corrects?

From here forward, the new law lowers the penalties associated with having pot by reducing its possession to a violation level offense. It also limits the fines for possession of less than two ounces of marijuana to $200, while possessing under one ounce is capped at $50. Even with these amendments, if found with it, the police are still going to take it from you. Retroactively, Albany aims to correct the disproportionate impact that the state’s previous marijuana laws overwhelmingly had on minority communities. The law does this by providing a path for people, who have misdemeanor marijuana convictions, to expunge such convictions from their records. The new law closes a loophole that the 1977 marijuana laws created when it expanded the criminal act of possessing even small amounts in “public view” despite establishing that 25 grams only constituted a violation. The loophole permitted law enforcement to arrest and prosecute anyone who used even small amounts of marijuana in a public place or in “public view” with a criminal offense. [i]

Third, the story goes that a full-legalization vote was going to fall-short due to “safety concerns” such as an increases in the likelihood of drugged-driving or the inability to regulate the substance, so Albany instead opted for the amendments we are discussing now. Realistically, however, the new law still recognizes the mere possession of marijuana as an offense, which means that it doesn’t stop unnecessary and superfluous enforcement by police in minority communities. The smell of pot is one of law enforcement’s universal-catalysts used to establish probable cause.

According to the Colorado Division of Criminal Justices October 2018 report on the Impacts of Marijuana Legalization in Colorado, the number of DUI-Marijuana citations State-wide dropped several points between 2017 and 2018, but the amount of DUI-Marijuana citations in the City of Denver actually increased by 92%.[ii] I’m not an expert on the demographic makeup of Colorado and its urban areas, but those numbers would seem relevant to me if I were promoting legislation that aims to resolve uneven law enforcement applications.

Driving drugged has the same criminal liability as driving drunk and it is even easier for the state to convict defendants for than drunk-driving.  If an officer believes that you are driving while feeling the effects of marijuana, likely because you have a specific smell, you will be arrested for DWAI-Drugs. This is a misdemeanor offense that, if convicted, will result in a criminal record, a $500 to $1,000 fine, up to a year in jail, a three year period of probation, and a revocation of the driver’s license for at least 6 months.

There is no .08 equivalent for drugged driving in New York. This means that if you have any measurable amount of Delta-9 THC in your blood, you can be convicted of the crime if the officer “observes” any impairment, even if it wasn’t from the pot. What everyone should take away from this is that the new law makes it all the more likely that if the cabin of a car smells like the marijuana, legal amount or otherwise, the police are likely going to “test the driver’s sobriety,” which will, in 99.99% of cases, give the officer “enough facts” to establish probable cause to arrest the driver and request a blood sample for analysis.  The metric for determining whether to provide a blood sample is a topic for a different time, but what every driver needs to know is that even a contact-high can place him or her in a compromising position that requires lawyers and judges.

[i] https://www.timesunion.com/news/article/Cuomo-signs-marijuana-decriminalization-bill-14192804.php

[ii] https://cdpsdocs.state.co.us/ors/docs/reports/2018-SB13-283_Rpt.pdf

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