Massachusetts Supreme Judicial Court to review accuracy of Field Sobriety Tests in OUI Marijuana cases.

Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.

 

Reliability of FSTs in OUI Marijuana Cases

The field sobriety tests were designed to solely detect alcohol impairment and have not been assessed for their ability to show impairment from any other drugs, including marijuana. As marijuana is not a central nervous system depressant like alcohol, its effects on the human body are unique, as are its effects on behavior and driving.

In 2012, a group of forensic toxicologists and neuroscientists tested the ability of field sobriety tests in suggesting marijuana intoxication (Bosker, Theunissen, Conan et al., 2012). The results were significant- only 30% of people who had used marijuana failed the tests. The researchers concluded that the success of the tests was dependent on a driver’s level of marijuana usage, suggesting that frequent users are more accustomed to the effects and would be able to perform the tests better than a first time user.

The field sobriety tests were based on the presumption that after a certain blood-alcohol level, people begin experiencing certain universal symptoms. The symptoms of alcohol consumption vary significantly from those of marijuana use, so it is inappropriate to suggest that a marijuana user and an alcohol consumer would operate a vehicle in the same manner, let alone perform a field sobriety test.

 

Police Officer Testimony in OUI Marijuana Cases

As noted above, the prevalence and acceptance of alcohol in society means that the effects are widely known and the courts have also long held this belief. In cases that date as far back as the 1920s, the courts acknowledge the familiarity of alcohol and there has been a common understanding that a lay observer would be able to decide whether an individual was displaying symptoms of alcohol intoxication. However, the same cannot be said with marijuana and there are no universally accepted symptoms which one could use in assessing a marijuana-intoxicated individual.

Unlike alcohol, the effects of recreational drugs lack consistency and can vary from user to user. The National Highway Safety Administration have acknowledged this fact and police officer training does not equip them with the ability to accurately assess physical signs of drug impairment. While alcohol is known to cause physical signs such as bloodshot eyes and slurred speech in alcohol-intoxicated drivers, drugs may cause lesser known signs such as excessive sweating and dilated pupils- signs a trained officer will not typically know to look for.

In Commonwealth v. Sands, 424 Mass.184, 187 (1997), the court agreed that the prevalence of alcohol use has led to a common understanding that the lay observer is able to recognize the signs of alcohol intoxication. As the same cannot be said for marijuana intoxication, expert testimony should be required and police officer testimony as to how “high” a driver is cannot be accepted.  In Massachusetts, we have seen an expansion of officers trained as DREs; however, without some expert testimony showing that field sobriety tests are directly relevant to someone being impaired by marijuana this evidence should be deemed in admissible.

 

The Future of OUI Marijuana Tests

The court is going to hear oral arguments on this case on February 11th.  The number of cases for OUI marijuana and OUI drugs is certainly increasing and it is understandable that the court and police should want to find some type of testing for these cases. But the court should not simply allow police departments to use the field sobriety tests in hopes that juries will assume these tests, which have the aura of reliability in an OUI alcohol case, apply to a marijuana case. This is misleading to the jury and the court should not permit this testimony.

To review the filings of the case you may go to the Massachusetts Supreme Judicial Court website.  For further reading about new case law in DUI cases in Massachusetts and a variety of other topics including trial practice tips and book recommendations, Like My Facebook page where I posted twice per week.

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