The state Office of Cannabis Management and legislative leaders will fight a proposal in Gov. Kathy Hochul's budget to allow police to use the smell of cannabis to order a drug test to determine if a person is driving while impaired — changing a key piece of the 2021 law that legalized recreational use for New York adults.

The governor's budget would change the Marijuana Regulation and Taxation Act (MRTA), which prohibits using odor or presence of cannabis in a vehicle to determine probable cause of a crime.

"That is something that undermines the basic tenets of the MRTA and decriminalization," OCM acting and deputy Executive Director Felicia A.B. Reid told Spectrum News 1. 

The language in Hochul's budget specifies that the odor of cannabis could be used to support a court-ordered blood test, but officials have concerns it would be applied more broadly.

For years under past drug laws, law enforcement used the smell of cannabis to justify seizures, car searches and arrests, which disproportionately led to the incarceration of Black and brown people during the War on Drugs.

The governor's proposal is part of efforts to crack down on impaired driving in the state, but is expected to be a budget fight with the Legislature.

"We need to figure out in the forthcoming budget how to get that proposal out because it's not going to work for New York and it's not going to work for cannabis," Reid said.

Assembly Majority Leader Crystal Peoples-Stokes authored the MRTA and said she's ready to push back against attempts to repeal parts of it.

"It needs to be reviewed, not to make changes, but to inform people," she said after an event about the law in Albany.

The Assembly leader was part of a panel about the law at the Black, Puerto Rican, Hispanic & Asian Legislative Caucus' annual conference over the weekend.

"This fight is not over," she said. "It's important now more than ever, it's important to be organized to make sure this legislation isn't squashed."

Peoples-Stokes said she's against the governor's proposal, but declined to comment further.

"It just fuels the fire and is unnecessary," she said.

Several cannabis organizations in the state, including cannabis growers and processors, also stand against the change. Various groups have pushed the Legislature to put more funding for drug recognition experts in the budget and to expand legal sites for people to consume cannabis to reduce driving under the influence.

“It’s completely against what the MRTA is supposed to represent,” said Joseph Calderone, co-founder and president of the Cannabis Farmers Alliance. “It’s supposed to be a change in the approach to justice when it comes to cannabis normalization.”

Kaelan Castetter, a policy advisor with the Empire Cannabis Manufacturers Alliance, argues the governor's proposal could negatively impact the cannabis workforce and make hiring more difficult.

"We're worried that this essentially criminalizes working for the cannabis industry," he said. "In particular, working in cultivation or processing facilities, it's inevitable you will leave, or an employee will leave their shift smelling like cannabis even if they de-gown and change into other clothes. Cannabis is very pungent."

The issue was a sticking point during the Legislature's original compromise of the MRTA, which was signed by former Gov. Andrew Cuomo.

Multiple lawmakers and cannabis stakeholders said Hochul did not discuss her intent to change the law with them, and they were surprised by the langauge in her executive spending plan. 

“The Hochul administration is actively negotiating with the state Legislature to keep New Yorkers safe from drugged driving, while maintaining the equity goals of the MRTA," said Kassie White, a spokesperson for the governor. "New York has built the most equitable adult-use cannabis market in the country and we will continue our work to make this sector a success.”

Reid said OCM is pleased with other proposals in Hochul's spending plan, including $5 million to hire 29 additional staff to assist with enforcement, compliance, licensing and legal counsel.

The agency has 215 staffers — up 35 people since last summer when Reid took over — but she added the department has a long way to go to build up its staffing levels.

"That [29 more employees] is a good start, but I think we also have to think about when we're staffing up to make sure we're doing so in a way where we're not also losing folks," Reid said.

Peoples-Stokes and several cannabis groups are also pushing for millions of dollars in the budget to support Conditional Adult Use Retail Dispensary licensees who received up to $100,000 loans from a state equity fund that failed to help many license holders.

"Small businesses in the cannabis industry need access to capital, and the only capital they're able to access are predatory loans, very high interest loans and capital that is, if they can access it at all, could doom them to fail later on," Castetter said.

Last week, the Office of Cannabis Management launched a Trade Practices Bureau to expand department investigations into complex trade practice violations and to combat market abuse.

*Editor's note: This story has been updated about language in the governor's budget that would allow police to use the smell of cannabis to support a court-ordered drug test.