High Times: The Challenges of Marijuana Legalization

I believe that when seeking to solve one set of problems, legislatures often create others. As the wave of marijuana legalization continues rolling across the country, various states are facing new challenges in dealing with the changes that are arising from the new laws. Legalization advocates naturally focus on the benefits of legalization. However, while these changes may solve certain problems, I believe others have been, and will be, created. Practitioners who deal with marijuana laws will uniquely experience the blunt impact of many of these changes. Let’s step back for a moment and look at the forest through the trees.

Why Legalize Marijuana?

Advocates of legalized marijuana have long argued that the criminality of this particular drug has burdened many defendants with a criminal record and has caused many others to be imprisoned for relatively minor offenses. In particular, younger users of marijuana will have a much harder time starting out in their professional careers if burdened with a criminal record. Based on the prevalence of recreational marijuana use, especially amongst young people, this may be poor public policy.

In addition to the impact on young people, there is also an impact of the current marijuana laws on minorities. The New York Times reported in 2013 that African Americans “were nearly four times as likely as whites to be arrested on charges of marijuana possession in 2010.”

The volume of marijuana related offenses on the dockets of the courts arguably creates a burden on the court system. In New Jersey, for example, it can take several months from the date of arrest for the drug sample to be tested and the laboratory certificate delivered to the prosecutor and defense counsel. This can extend the time cases sit on a court’s docket while the parties wait for the lab results. Meanwhile, the laboratories are dedicating resources to testing many small samples of alleged marijuana, while litigants are waiting for laboratory results in more serious cases.

Of course, one should not rule out the tax revenue the states can expect from legalized marijuana. The increase in tax revenue can be especially attractive to states with budgetary issues.

So, What’s the Big Deal?

Even where recreational use of marijuana has been legalized, laws against drugged driving are not going away anytime soon. Law enforcement agencies are increasing their efforts to develop new methods to detect suspected drugged drivers. Breath test machines to detect marijuana are already being developed and tested, but it remains to be seen if they hold up to judicial scrutiny. In New Jersey, the Alcotest 7110 MKIII-C was found to be sufficiently reliable and the results admissible in drunk driving prosecutions, as long as certain conditions were met (See State v. Chun, 194 N.J. 54 [2008]). One can expect new breath testing machines to be similarly scrutinized.

Unlike alcohol, marijuana stays in the user’s system much longer. It might not be enough to detect via blood, urine, or breath the presence of marijuana, as the defendant may have ingested the drug days or even weeks prior to the time of arrest. Prosecutors can expect defense attorneys to argue that while marijuana was detected in the defendant’s system, the defendant was not proven to be under the influence at the time he or she operated the motor vehicle.

Some states have legalized marijuana for medicinal use, but not for recreational use, at least not yet. This situation has given rise to a case that was recently decided by the Appellate Division of New Jersey. A defendant sought to challenge the search of his car, arguing that the odor of marijuana should no longer give rise to probable cause, due to the legal status of marijuana in New Jersey for medicinal purposes. The Appellate Division did not agree with Mr. Myers and upheld his conviction (State v. Myers, Docket No. A-4295-12T4 [September 8, 2015]). I expect more cases to be litigated through the court system as the laws change and new situations arise.


This article has focused primarily on criminal and traffic issues. It was not meant to be exhaustive. Surely, there will be many other issues raised by legalization in other areas of law as well. The future might be hazy, but it certainly won’t be boring.

Check Also

NFTs And The Law: What Do I Actually Own?

A quick look into NFTs, and how they fit into a legal landscape that isn’t ready for them.