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New Mexico Supreme Court Case Hearing Addresses Cannabis Impairment
The New Mexico Supreme Court heard arguments in relation to a case where an alcohol sobriety test was used to determine cannabis impairment.
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.
Source: https://hightimes.com/news/new-mexico-supreme-court-case-hearing-addresses-cannabis-impairment/
New Mexico regulators fined a cannabis operator nearly $300,000 and revoked its license after the company allegedly created fake reports in the state’s traceability software.
The New Mexico Cannabis Control Division (CCD) accused marijuana manufacturer and retailer Golden Roots of 11 violations, according to Albuquerque Business First.
Golden Roots operates the The Cannabis Revolution Dispensary.
The majority of the violations are related to the Albuquerque company’s improper use of BioTrack, which has been New Mexico’s track-and-trace vendor since 2015.
The CCD alleges Golden Roots reported marijuana production only two months after it had received its vertically integrated license, according to Albuquerque Business First.
Because cannabis takes longer than two months to be cultivated, the CCD was suspicious of the report.
After inspecting the company’s premises, the CCD alleged Golden Roots reported cultivation, transportation and sales in BioTrack but wasn’t able to provide officers who inspected the site evidence that the operator was cultivating cannabis.
In April, the CCD revoked Golden Roots’ license and issued a $10,000 fine, according to the news outlet.
The company requested a hearing, which the regulator scheduled for Sept. 1.
At the hearing, the CCD testified that the company’s dried-cannabis weights in BioTrack were suspicious because they didn’t seem to accurately reflect how much weight marijuana loses as it dries.
Company employees also poorly accounted for why they were making adjustments in the system of up to 24 pounds of cannabis, making comments such as “bad” or “mistake” in the software, Albuquerque Business First reported.
Golden Roots was fined $298,972.05 – the amount regulators allege the company made selling products that weren’t properly accounted for in BioTrack.
The CCD has been cracking down on cannabis operators accused of selling products procured from out-of-state or not grown legally:
- Regulators alleged in August that Albuquerque dispensary Sawmill Sweet Leaf sold out-of-state products and didn’t have a license for extraction.
- Paradise Exotics Distro lost its license in July after regulators alleged the company sold products made in California.
Golden Roots was the first alleged rulebreaker in New Mexico to be asked to pay a large fine.
Source: https://mjbizdaily.com/new-mexico-cannabis-operator-fined-loses-license-for-alleged-biotrack-fraud/
Four marijuana companies, including a multistate operator, have filed a lawsuit against U.S. Attorney General Merrick Garland in which they allege the federal MJ prohibition under the Controlled Substances Act is no longer constitutional.
According to the complaint, filed Thursday in U.S. District Court in Massachusetts, retailer Canna Provisions, Treevit delivery service CEO Gyasi Sellers, cultivator Wiseacre Farm and MSO Verano Holdings Corp. are all harmed by “the federal government’s unconstitutional ban on cultivating, manufacturing, distributing, or possessing intrastate marijuana.”
Verano is headquartered in Chicago but has operations in Massachusetts; the other three operators are based in Massachusetts.
The lawsuit seeks a ruling that the “Controlled Substances Act is unconstitutional as applied to the intrastate cultivation, manufacture, possession, and distribution of marijuana pursuant to state law.”
The companies want the case to go before the U.S. Supreme Court.
They hired prominent law firm Boies Schiller Flexner to represent them.
The New York-based firm’s principal is David Boies, whose former clients include Microsoft, former presidential candidate Al Gore and Elizabeth Holmes’ disgraced startup Theranos.
Similar challenges to the federal Controlled Substances Act (CSA) have failed.
One such challenge led to a landmark Supreme Court decision in 2005.
In Gonzalez vs. Raich, the highest court in the United States ruled in a 6-3 decision that the commerce clause of the U.S. Constitution gave Congress the power to outlaw marijuana federally, even though state laws allow the cultivation and sale of cannabis.
In the 18 years since that ruling, 23 states and the District of Columbia have legalized adult-use marijuana and the federal government has allowed a multibillion-dollar cannabis industry to thrive.
Since both Congress and the U.S. Department of Justice, currently headed by Garland, have declined to intervene in state-licensed marijuana markets, the key facts that led to the Supreme Court’s 2005 ruling “no longer apply,” Boies said in a statement Thursday.
“The Supreme Court has since made clear that the federal government lacks the authority to regulate purely intrastate commerce,” Boies said.
“Moreover, the facts on which those precedents are based are no longer true.”
Verano President Darren Weiss said in a statement the company is “prepared to bring this case all the way to the Supreme Court in order to align federal law with how Congress has acted for years.”
While the Biden administration’s push to reschedule marijuana would help solve marijuana operators’ federal tax woes, neither rescheduling nor modest Congressional reforms such as the SAFER Banking Act “solve the fundamental issue,” Weiss added.
“The application of the CSA to lawful state-run cannabis business is an unconstitutional overreach on state sovereignty that has led to decades of harm, failed businesses, lost jobs, and unsafe working conditions.”
Alabama regulators are targeting Dec. 1 to award the first batch of medical cannabis business licenses after the agency’s first two attempts were scrapped because of scoring errors and litigation.
The first licenses will be awarded to individual cultivators, delivery providers, processors, dispensaries and state testing labs, according to the Alabama Medical Cannabis Commission (AMCC).
Then, on Dec. 12, the AMCC will award licenses for vertically integrated operations, a designation set primarily for multistate operators.
Licenses are expected to be handed out 28 days after they have been awarded, so MMJ production could begin in early January, according to the Alabama Daily News.
That means MMJ products could be available for patients around early March, an AMCC spokesperson told the media outlet.
Regulators initially awarded 21 business licenses in June, only to void them after applicants alleged inconsistencies with how the applications were scored.
Then, in August, the state awarded 24 different licenses – 19 went to June recipients – only to reverse themselves again and scratch those licenses after spurned applicants filed lawsuits.
A state judge dismissed a lawsuit filed by Chicago-based MSO Verano Holdings Corp., but another lawsuit is pending.
Source: https://mjbizdaily.com/alabama-plans-to-award-medical-cannabis-licenses-dec-1/
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