ST. LOUIS — Missourians will be able to buy recreational marijuana by early February, but both attorneys and police are unsure what the drug’s legalization means for police departments, officers and residents.
Attorneys speculated that charges for driving while intoxicated could rise as the use of marijuana increases. And they said the shift in law could prevent police officers from using marijuana odor as probable cause to search a vehicle during a traffic stop.
“It will be interesting because (attorneys) have complained for some time that law enforcement will use the smell of marijuana as an excuse to get into somebody’s car,” said Jill Schaefer, a defense attorney based in Clayton.
Voters on Tuesday approved Amendment 3, which will allow anyone 21 or older to purchase up to 3 ounces of dried, unprocessed marijuana per day. The state uses a separate weighing system to determine the amount of gummies and other products not sold in flower form.
Driving while under the influence in Missouri is considered a Class B misdemeanor, if it’s the first offense. That first offense can result in up to six months in jail or a $500 fine.
Area law enforcement agencies, including the Missouri State Highway Patrol and St. Louis County and city police, declined interview requests for this story. A St. Louis County police spokeswoman said the department is waiting for the amendment to take effect. A St. Louis Metropolitan Police spokeswoman said that department has no plans to change department policies or procedures and was unclear on some of the rules governing enforcement of the new amendment. The highway patrol said it trains officers on identifying impaired drivers and will enforce the new rules.
In Illinois, recreational marijuana has been legal for almost three years. St. Clair County Sheriff Richard Watson said his agency has experienced no challenges with recreational marijuana when it comes to policing or the rate of DWIs or accidents.
“The only thing now is you’ve got to differentiate whether a person has legal marijuana or illegal marijuana,” he said.
St. Louis injury and criminal defense lawyer Chris Combs said he’s read hundreds of police reports with marijuana odor stated as the officer’s probable cause.
“I think it might go away entirely because, you know, the officer walks up to a car and says, ‘I smell the odor of marijuana,’” he said. “Well, guess what? Marijuana is legal. You can smell the odor of cigarettes too, you know?”
DWI cases involving just marijuana are difficult to prove, said Travis Noble, a well-known St. Louis defense attorney. They rely almost entirely on officer testimony because there is no test to determine when a person last smoked.
There is also no known way to measure how high someone is, like the blood alcohol concentration test, which determines the percentage of alcohol in a person’s blood stream. Some officers are trained to observe behavior to determine what kind of drug the person is under the influence of — an imprecise science, Noble said.
He’s tried more than 200 DWI marijuana cases, he said. And never lost one.
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