State playing catch-up in OUI marijuana cases
‘Gerhardt,’ lack of reliable test hinder prosecutions
Pat MurphySeptember 6, 2018
Nearly two years after Massachusetts voted to legalize marijuana, prosecutors find themselves handicapped in proving drugged-driving cases involving alleged pot use because of a lack of scientifically reliable testing and a Supreme Judicial Court decision limiting police officer testimony.
“Pot can stay in your system for a long time after use,” Stoughton criminal defense attorney Michael A. DelSignore explained. “You don’t have a quick test to determine if someone is under the influence of pot. And even if you have a blood or urine test, it’s not really going to tell you how that was affecting [the defendant’s driving] at the time, so it’s a very difficult case for the commonwealth to prove.”
Stuart M. Hurowitz, supervising attorney at the Worcester office of the Committee for Public Counsel Services, said he does not see a scientifically reliable test for marijuana impairment being introduced in OUI cases anytime soon.
“The science isn’t there yet,” Hurowitz said. “Until scientists are able to peg a level of marijuana ingestion to a diminished capacity to drive, there’s really no test that is going to be able to be developed.”
Field assessments limited
DelSignore authored the amicus brief filed in Commonwealth v. Gerhardton behalf of the National College for DUI Defense. In its 2017 decision, the SJC held that a police officer may testify in a marijuana intoxication case as to his or her observations concerning a driver’s performance of field sobriety tests, but unless qualified as a drug recognition expert, the officer cannot render an opinion as to whether the driver was under the influence of marijuana.
“The import of the Gerhardt case is that there is no relationship between the presence of marijuana metabolites [in a driver’s blood] — which is evidence that they consumed [the drug] — and impairment at or about the time of testing,” said Michael D. Cutler, a criminal defense and marijuana licensing attorney in Florence. Cutler helped to draft Question 4, the ballot initiative legalizing marijuana.
The defendant in Gerhardt was charged with operating a motor vehicle under the influence of marijuana, in violation of G.L.c. 90, §24. The defendant filed a Daubert–Lanigan challenge to the admissibility of evidence concerning his performance of field sobriety tests during the vehicle stop that resulted in his arrest.
The SJC recognized that field sobriety tests commonly used by police — in particular, the horizontal gaze nystagmus, walk-and-turn, and one-leg stand tests — were developed to measure alcohol impairment.
Further, the court recognized that there was no scientific consensus as to the tests’ reliability in measuring marijuana impairment. The court held that the results of such tests were admissible as observations of the testifying officer to establish a driver’s balance, coordination, mental acuity and “other skills required to safely operate a motor vehicle.”
However, the officer could not testify regarding the ultimate conclusion of whether a driver’s performance of field sobriety tests indicated marijuana impairment.
“Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana,” the SJC said.
DelSignore said one of the key conclusions of the case was that the state cannot obtain a marijuana conviction solely on the basis of field tests and that jurors must be instructed that such tests are not scientific tests of marijuana impairment.
“The observations of [police officers] are admissible, but the court is very careful to say that roadside assessments alone, without anything else, can’t be used to prove beyond a reasonable doubt that [the driver] was operating under the influence of marijuana,” Hurowitz said.
Cutting deals?
Georgetown criminal defense attorney Steven S. Epstein authored the amicus brief filed in Gerhardt on behalf of the National Organization for the Reform of Marijuana Laws.
Epstein said that prosecutors, though ordinarily not willing to dismiss outright OUI marijuana charges because of the current state of the law, are more inclined to agree to reduce a charge to a negligent or reckless operation offense as part of a plea bargain. Being allowed to plea to a lesser included offense that does not involve automatic license suspension is a positive outcome for many clients, he said.
DelSignore likewise said that, in his experience, prosecutors are more likely to allow a person to plead to a lesser charge in marijuana cases.
“In alcohol cases, they almost never negotiate,” he added.
But Hurowitz said he had not heard of an OUI marijuana charge being reduced in Worcester County and that he would be surprised if that occurred in other counties.
“Prosecutors would rather lose the cases outright than agree to reduce [the charges] down,” he said.
In recognition of the limited admissibility of field sobriety tests, Epstein said, prosecutors are “desperately” looking for a way to chemically test marijuana in the same manner as has been done with alcohol, but that there has been little progress on that front since Gerhardt.
To bolster their cases in lieu of admissible chemical tests, Epstein said, prosecutors are turning to trained drug recognition experts — or DREs — to render an opinion on marijuana intoxication based on the available evidence. Epstein said state judges are divided on whether to allow the testimony of the DREs.
“Some will allow drug recognition experts to testify; some say it’s irrelevant because it’s remote in time or because the expert is only capable of showing the physiological symptoms of someone having consumed marijuana, which is not necessarily related to the ability to operate a motor vehicle safely,” Epstein said.
According to DelSignore, more police are undergoing training to become DREs in an effort to strengthen the state’s chances of getting a conviction when drugged driving is charged.
But he said there is room for defense attorneys to attack the opinion of DREs, even when police call them in to evaluate a suspect in a timely manner.
Current training requires DREs to follow a standard 12-step protocol for determining when someone suspected of driving under the influence of drugs is impaired, beginning with a breath test to exclude alcohol as the cause of the impairment.
The protocol is further aimed at excluding a medical condition as the cause of impairment, as well as identifying what drugs or combination of drugs likely caused a suspected impairment.
DelSignore said the scientific reliability of the DRE protocol has been addressed by only a few District Court judges, and he expects it to be one of the next “big questions” decided by the SJC.
“There are some really good arguments that [DREs] don’t have the training or experience to make those determinations because the method they are using isn’t scientifically reliable,” he said.
Changes a coming?
Medical marijuana became legal in the state in January 2013.
Voters passed Question 4, the Regulation and Taxation of Marijuana Act, in November 2016. Under the law, the personal use, possession and cultivation of marijuana became legal Dec. 15, 2016. Specifically, anyone 21 and older can possess an ounce of marijuana outside the home, and those of legal age can possess up to 10 ounces of marijuana in the home. The use of marijuana in public remains illegal.
In 2017, the Legislature pushed back the sale of recreational marijuana by six months, delaying the licensing of retail cannabis stores until July 2018. Though the retail sale of recreational marijuana became legal July 1, the Cannabis Control Commission thus far has been slow to issue retail licenses.
The Legislature’s 2017 amendments to the voter-approved measure further required the Cannabis Control Commission to establish a Special Commission on Operating Under the Influence and Impaired Driving. That commission has been formed and begun its work, which is to perform “a comprehensive study relative to the regulation and testing of operating under the influence” of marijuana and other drugs. The commission is tasked with submitting recommendations for legislation by Jan. 1, 2019.
DelSignore said he could see Massachusetts law on OUI pot being amended based on the commission’s findings. He noted that some states have “per se” laws that make it illegal to drive with amounts of marijuana in the body that exceed set limits. Eighteen states currently have “zero tolerance” or per se laws for marijuana, according to the Governors Highway Safety Association.
“Per se laws, like proof of OUI impairment in alcohol cases with blood-level triggered inferences of inculpatory impairment, always are easier to prove than ‘subjective’ impairment proof without medical test corroboration,” Cutler said.
A breath test for pot may be on the horizon, DelSignore said, pointing to a California company, Hound Labs, that recently unveiled what it claims to be the world’s first marijuana breath test. According to the company’s website, its product can “rapidly, accurately, and inexpensively measure recent marijuana use and alcohol in a person’s breath.”
The availability of such a device could provide the impetus for Massachusetts lawmakers to enact a per se marijuana OUI law, according to DelSignore.
“If they can get [a breath-test device] down to that point where you can determine whether someone smoked [marijuana] within a certain time period, then it’s likely the law would change,” he said.
Any such device would have to be peer reviewed and tested before being adopted in the commonwealth, DelSignore said, and then would face Daubert challenges from the defense bar over whether the device was scientifically reliable enough to produce results that could be introduced as evidence in a criminal case.
The District Attorney’s Office in Essex, Hampden and Suffolk counties did not respond to requests for comment prior to deadline.