There is no legal per se limit of THC for DWI like there is for alcohol. There is no implied consent for blood (in my state) and of course a breathalyzer won’t pick up THC. A DWI investigation involving THC is inherently more difficult than with alcohol. So no, just knowing they smoked is not enough for DWI. Impairment must be proven. And like I have said before the legislature very specifically prohibited using the smell of marijuana as reasonable suspicion.
The law is new and there is no case law. If a driver is weaving or showing some other sign of impairment that is the reasonable suspicion. Smelling marijuana can be used as part of the totality of the circumstances to get probable cause for an arrest. If they are pulled over for an expired registration and marijuana is smelled that smell must be ignored. Until case law says different that’s how it’s going to go.
Since I had Covid I haven’t smelled my neighbor smoking pot in the garage. It’s not going to be an issue with me. I can’t smell shit.
I shouldn’t have to answer that. It’s pretty obvious. He could argue whatever he wanted but he would get fired for breaking state law and probably catch a felony charge.
You’re a lawyer. You should understand jurisdiction. State officers can’t arrest on federal charges. Federal agents can’t arrest on state charges. When there is overlap agencies cooperate. The DEA doesn’t want to deal with local pot busts. Who would even take the charge? Do I take the prisoner that I don’t have the legal right to arrest in my police car and drive them out of town to the federal courthouse in Newark? How would my boss feel about that?
No. The feds are not going to prosecute the guy for possessing weed. We agree on that. But it gives you RAS to search the car and find the rolled up joints that the guy is smoking in violation of NJ DUI law. That’s my whole point.
What part of New Jersey law specifically prohibiting me from doing exactly that don’t you understand? Federal law might say it’s legal. I don’t enforce federal law. They have agents for that. I can not ignore state law.
NJ law does not supersede federal law. See Raich. Although the feds cannot force you to enforce the federal law, you can use it as a pretext. See Whren.
State law prohibits me. Very specifically. You are telling me to do what I am prohibited from doing by statute.
Not for the purposes of a citizens arrest. I am a sworn law enforcement officer with statewide jurisdiction 24 hours a day. If I arrest someone it’s not a citizens arrest.
I think this is ripe for argument. You are a good citizen of NJ. You wish that all laws, including federal felonies, be enforced. How can the state of NJ prevent that? I understand that under the Printz case the feds cannot require you to enforce federal law, but I don’t think a state can prevent it.
Years ago, before PA had a Medical Marijuana program, I came to a sobriety stop checkpoint absolutely reeking of weed. I had been to a friend’s home to help him fix something in his house.
Meanwhile, his friends were all playing video games and smoking. I left my coat in that room, but never smoked anything for reasons.
At the checkpoint my coat reeked. I was asked for permission to search, but I politely declined although I knew my vehicle was clean. The cop had me wait for the canine officer.
The canine officer arrived, spoke with the cop who had called for him, then came over to talk with me. He pointed out that the odor was strong, and yet I displayed no signs of intoxication. I explained why. He smelled my coat and laughed. He refused to involve the dog, because I had no signs of use.
He’s a state employee (municipalities are state agencies). Are you saying that a state cannot prohibit its very own employees from enforcing a federal law while on the clock for a state (municipal) paycheck?
State law is not preempted in this area unless the laws truly conflict. Officers in states where marijuana is legal are not obligated to enforce federal law. It therefore does not conflict with state laws prohibiting them from taking action based on the smell of marijuana alone.
Officers can comply with both laws, because the federal law does not create any obligation for the officer to act.
Agreed. But here is the argument. An officer wants to get a murder weapon into a state trial. He used RAS to search the car because he smelled weed, a violation of federal law. You see where I am going?
And @Loach is saying that his state prohibits him from doing that. But he is a good citizen of NJ and wishes that federal felonies be enforced. Can his state stop him from doing that? I think it is a good argument that it cannot.