With marijuana now legal in the state for both recreational and medical use, many in law enforcement has shifted their attention to impaired drivers. OUI drugs is a common charge in Massachusetts, but it not always clear what signs a police officer can refer to in terms of determining if an individual is operating a car under the influence of marijuana. Many officers were using so called field sobriety tests used to detect alcohol impairment to try to determine marijuana impairment. Now the highest court in Massachusetts has ruled that it can no longer use that as a determining factor.
The Supreme Judicial court ruled in Commonwealth v. Gerhart that police may give field sobriety tests, but can’t call them tests instead they may call them roadside assessments. Without being qualified as an expert, officers can’t testify that a person is “high” or under the influence of marijuana. The police can say that they observed blood shot eyes, drowsiness and lack of coordination. The prosecutor can then ask the jurors to use their own common sense and experience to try to determine if the driver was under in the influence of marijuana.
The reason for the shift and change is because the highest court was not convinced that these so called field sobriety tests used to determine if there is alcohol impairment can detect impairment for marijuana. In fact, the Court has found that many scientist disagree in terms of the tests effectiveness with marijuana. Therefore, it would be wrong to call them tests in front of the jury.
So what happens now? We expect that many people will be arrested for operating while under the influence of alcohol. If you are pulled over for suspicion of marijuana the police can still give you field sobriety tests, but they can’t say that the driver is under the influence of marijuana because the driver failed the tests. We should expect that law enforcement will start trying to find new ways to determine if a person is under the influence of marijuana.
The Court doesn’t make a blanket ruling that no tests can ever be used in the future, but that any tests that is used must be scientifically sound. Right now the ways the scientific tests that are available to test for marijuana that is court acceptable are blood and urine. However, that is neither test is practical to do road side. In the future would it be possible that law enforcement create a breathalyzer type of tests for marijuana? Is it even scientifically possible for that to happen? One thing is for sure, there are certainly going to be a lot of development in marijuana law over the next few years.