Erie County District Attorney warns drivers about being high behind the wheel

BUFFALO, N.Y. — Erie County has a simple message for those considering driving a vehicle while high this holiday season. 

“It’s still a crime, that’s the bottom line,” Erie County District Attorney John Flynn said. 

Recreational marijuana has been legal in New York for over a year, but this is the first holiday season where dispensaries in the state are selling products. 

Flynn says driving while high on marijuana, or other drugs for that matter, fall under the states open container laws. 

“Everyone needs to know that the marijuana legalization statute that took effect now over a year ago now did not change anything when it came to the the penal law of driving,” Flynn said. “It’s been on the books for 20 plus years, if not more.”

But how exactly will law enforcement know if you’re driving while high? Unlike driving while intoxicated from alcohol, there is no roadside test for an officer to know if you’re high. 

“There is no portable test for marijuana,” Flynn said. “That’s going to take some Star Trek stuff, quite frankly, in order to do that.”

There does appear to be one company, Hound Labs that claims to have developed a roadside alcohol and marijuana breathalyzer. But it’s unclear if the product has actually been sold or even available for sale.

Instead of a roadside test, a drug recognition expert would need to arrive on scene to determine if you are under the influence of marijuana or other drugs. 

While any officer pull you over for a variety of reason, not all officers are trained drug recognition experts. 

According to Flynn, there’s a shortage of DRE’s throughout Western New York law enforcement agencies. 

“There are agencies in Erie County here that don’t have any DRE’s at all and their force,” Flynn said. 

Flynn says that a driver under the influence of marijuana or other drugs would likely break a different traffic law to trigger a stop. If an officer suspects the driver may be high, they would need to call a DRE for support and to verify. 

But Flynn says due to reforms in the states bail statute, a driver would likely only be given an appearance ticket. 

“They will not let you drive home, obviously,” Flynn said. “They’ll make arrangements for your car to be kept there and someone come come pick you up.”

Flynn had simple advice for those who use legal narcotics over the holiday. 

“If you’re if you’re at a party over the holidays and are under the influence, whether it’s alcohol or drugs, just call for a ride share,” Flynn said. “It’s pretty simple now.”