ROCHESTER, NY (WROC) — As part of Governor Kathy Hochul’s proposed budget, the odor of marijuana could trigger probable cause for a police officer if someone is driving.
This would mean that the officer could order a drug test or search the car, based on the odor alone.
Matt Winchell is an associate attorney with Tully Rinckey. He says it’s illegal to smoke and drive, like it is to drink and drive, but using odor might not pass the proverbial legal smell test.
“A cop can come to the side of the car, and say ‘I smell marijuana, please step out of the vehicle,’” he said. “And now it seems like they’re trying to order a drug test…that seems to have some serious constitutional issues with it.”
Winchell also says that this is part of a broader series of changes, directed at changing Discovery Law (related to how evidence is admitted in court) in the state to be more favorable toward law enforcement.
This proposed change would override a 2021 ruling that was repealed when the state signed the Marijuana Regulation and Taxation Act. The Office of Cannabis Management essentially carries out the MRTA.
OCM — which was called to be part of a budget hearing Wednesday — said in a statement to News 8:
“New York has taken significant steps to move away from outdated enforcement practices that disproportionately harmed communities of color, and we are working to make sure we can combat drugged driving without undermining this progress.”
Winchell said this if he were retained by a client to argue it in court:
“I would definitely make arguments that it’s an unconstitutional violation of my client’s rights,” he said. “That they were arbitrarily forced to take a drug test because that’s going to tell you if someone was in the car.”
