Driving High is Illegal: But What is Driving High?

Driving High is Illegal: But What is Driving High?
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In April 2022, New York Gov. Kathy Hochul and a coterie of other state lawmakers and public-safety officials launched a firm yet nebulous public-safety campaign warning people that they shouldn’t be driving high. The initiative pulled off the neat trick of informing citizens that certain behavior is prohibited, without telling citizens exactly what that behavior is. Called “Cannabis Conversations,” the campaign will be emphasized in an upcoming series of billboards, commercial sports and other public service announcements (PSAs) to complement similar warnings against drunk driving. But what, exactly, is “driving high?” Unlike drunk driving, that’s not something Hochul—nor anyone else in states where cannabis is legal—has been able to satisfactorily define. Nevertheless, Hochul is the latest public official to highlight a curious situation that’s proven one of the more complex and nagging problems to arise during the marijuana legalization era. Burden of Proof, Body of Doubt In one sense, driving while high is not unlike pornography: You know it when you see it—if “you” are a law-enforcement official who’s a drug-recognition expert, determining whether to write a ticket or make an arrest for a misdemeanor offense. Under New York state law, drunk driving and driving high are outlawed under the same criminal statute. But unlike the first wave of states to legalize cannabis, there’s no strict “legal limit” for cannabis impairment in New York. This is because other states such as Colorado have ditched limits like the initial standard of five nanograms of cannabis metabolite per milliliter of blood—because, unlike alcohol, cannabis metabolites are detectable in the human body long after the effects have worn off. For that reason, New York state law has no “per se” standard for impairment. So, while this standard may be workable while out on the road, where a law enforcement officer can use various…

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