Articles Posted in DUI drugs

The Massachusetts Supreme Court ruled today in Commonwealth v. Thomas Gerhardt that field sobriety tests are admissible for an OUI marijuana, but cautioned that jurors cannot rely on these tests in and of themselves to find someone guilty or impaired by marijuana. The model jury instruction drafted in the opinion addresses the concerns that jurors will assume FST are accurate for marijuana as for alcohol.  The SJC expressly tells jurors that there is no correlation between performance on field sobriety tests and impairment by marijuana.

Additionally, the SJC found that officers cannot testify as to their lay opinion regarding impairment by marijuana as the scientific community has not developed any consenusus on the signs showing impairment by marijuana.

In an article from Chris Villani of the Boston Herald, the SJC was described as splitting the difference.  While that is a fair assessment of the decision,  I think the cautionary jury instruction will greatly reduce the value of the field tests to a jury, so while admissible, those assessments, as the Court refers to them, should have diminished weight in the eyes of the jury.  Further, the exclusion of lay opinion as to impairment leaves the jury without any testimony tying the observations to impairment from marijuana directly from the officer.  That is a significant benefit to the defense and based on the lack of scientific agreement on the signs of marijuana impairment, is a step forward in ensuring a defendant gets as fair trial.  The Gerhardt case was one where DelSignore Law submitted an amicus brief on behalf of the National College of DUI Defense on behalf of the defendant.

Tiger Woods was charged with DUI drugs in Florida.  According to the CNN news report, there was evidence of fresh damage to his car, he was found asleep at the wheel and failed field sobriety tests.  Woods did submit to a breath test and registered a 0.00, revealing no alcohol in his system according to the breath test results.

In Massachusetts, an OUI drugs charge involves proving the following.  That a person operated a motor vehicle, on a public way, while under the influence of a narcotic drug, depressant or stimulant.  The Commonwealth has the proven of proving what particular drug an individual is alleged to be under the influence of.  This is one of the more difficult elements of a DUI drugs charge for the Commonwealth to prove.  Often, if there are no drugs found in the car, no smell such as in an OUI marijuana case, the evidence will be based on an admission or statement of the motorist.

According to multiple media reports, including the Boston Herald, Woods admits to taking several prescription medications, pain killers and Vicodin.  The State will need expert testimony regarding the impact these medications would have on his ability to drive and will have to present evidence of the amount or quantity of the medication in his system.

Back in November of 2016, Massachusetts voters ultimately voiced their opinion and voted for the legalization of recreational marijuana. Supporters of such legalization have argued that the new law would take marijuana out of the ‘black market’ and would be subjected to applicable tax; marijuana would produce tax dollars for the state and would employ hundreds of local citizens. However, as recreational marijuana is a complex and hot topic circulating around Massachusetts, the Senate has declared that the law itself needs to be clarified and refined. Ultimately, this means changes, and supporters of its legalization are not on board with this.

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Fox 25 news reported that Senate President Stanley Rosenberg, on addressing the voters who voiced their support for the legalization, mentioned that advocates should been prepared for such changes to happen. As of now, there is a 6-month delay for anyone attempting to open recreational marijuana stores for consumers. However, the legislature has been pondering many other changes, including but not limited to raising the legal age from 21 for possession, purchase and use, an increase on the marijuana tax rate, as well as lowering the amount of plants that can be grown in any given household.

In relation to the push for an increased tax rate, legislators argue that the current proposed law is simply too low and will more than likely not be enough to even cover regulatory costs. As of right now the maximum (and total) tax rate proposed is 12%. Other states where legalized recreational marijuana has made waves has tax rates as high as 37% (Washington) and 29% (Colorado). The hesitancy to allow home growers to have up 12 plants produces fear for the legislature, as they believe the more plants a person is able to grow, the more likely they will sell their products to consumers illegally.

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.

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A Washington State University professor is currently developing the first portable breathalyzer that tests for marijuana substance consumed by a driver. Washington law enforcement agencies are particularly enthusiastic about the test, as more and more drivers are operating while under the influence of marijuana in one of only two states who have legalized marijuana.

Currently, law enforcement can only test for marijuana consumption through blood tests at a lab. These tests are time consuming, complicated, and expensive. The new marijuana breath test is designed to detect a primary chemical ingredient – THC – in the driver’s breath immediately after the driver is pulled over. A portable breath test for marijuana will enable officers to more accurately identify drivers who operate while under the influence of marijuana, by allowing them to rely on the breathalyzer’s measurements rather the officers’ own observations.

Like most alcohol breathalyzers, marijuana breathalyzer devices will likely be susceptible to error. There are currently several ways for an experienced criminal defense attorney to challenge the results of an alcohol breathalyzer – from the manner in which the test was administered to the significance of the chemical ingredients that a breathalyzer actually detects and measures. These challenges could also be expected in a prosecution relying on a marijuana breathalyzer test result. But still, the invention of a marijuana breathalyzer is likely to lead to substantially tougher prosecution of this type of offense – not only in Colorado and Washington where driving while under the influence of marijuana is explicitly a crime, but in other states as well. USA Today along with several media outlets reported on this story.

As a Massachusetts OUI Attorney, it is quite apparent that OUI cases involving drugs are on the rise as more officers received training in drug recognition techniques, commonly known as a DRE evaluation. A charge based of OUI drugs has many of the same defenses involved with alcohol in that the arrest is based on the officer’s subjective observations. With an OUI drugs charge, many officers do not have the qualifications to conclude that a person is under the influence of a particular drug. Further, the law requires the Commonwealth to prove which particular drug a defendant is under the influence of at the time of operation.

One of the explanations for this increase of drugged driving is the growing trend of legalizing and decriminalizing marijuana and the growing dependency of prescription drugs. A recent estimate states that for every six people charged with an OUI, one of those will be drug related driving alone. With this statistic, it is certainly on the radar of police and things are currently being done to crack down on this. On the national level, President Obama has taken the initiative to try and crack down on the problem as well making December National Impaired Driving Prevention Month each of the last three years. His overall goal is to reduce drugged driving by 10 percent by 2015.

The way to achieve the goal Obama has set up is being more strict and catching more offenders who are drugged driving. This becomes a problem as unlike alcohol related OUI, there is no magic number with drug related OUI like .08 with alcohol. Furthermore, there is no convenient breathalyzer test for drugs that displays what and how much drugs the driver was taking. Because of this, officers will have to rely on their own subjective observations of the driver to determine whether they are on drugs and whether the drugs are impairing the driving. To help this problem, the Drug Recognition Expert has been created and in effect since the 1980’s. There are 77 of these experts in Massachusetts and thousands more around the country. These officers are trained to recognize what drugs and how much of that drug a person has been taking just from observations. These DRE’s help the problem that arises when a driver seems impaired but has no alcohol in their system; at this point, the DRE can decide whether the driver is impaired by another substance.

Decriminalizing and making marijuana legal is a growing trend throughout many states. However, even when legal, it is still an offense to drive under the influence of marijuana. As a Massachusetts OUI Defense Attorney, this creates problems as it is much more difficult to measure the presence of marijuana in the system opposed to alcohol. With an alcohol OUI charge, registering a .08 or higher will create a presumption that the driver was operating under the influence. There is not really a “magic number” such as this for marijuana and has created difficulty in OUI cases involving drugs. Colorado has recently taken on the challenge of trying to create a threshold for marijuana.

The effects marijuana have on driving is not as clear as the effect alcohol has which was a problem for Colorado law makers. However, they were determined to find a number to put on the amount of marijuana in a drivers system in order to make it more like an alcohol OUI. Colorado concluded that a driver will be assumed to be impaired if a blood test shows THC in five or more nanograms per milliliter. When a blood test shows this amount of TCH, it will be the same as blowing a .08 in a drunk driving charge.

Similar bills creating a standard like this for marijuana use have been met with some resistance. This is due to the small amount of research done on the effect marijuana has on driving and the intrusive nature of taking a suspect in for a blood test. Research has shown that the more marijuana used, the worse a driver will be performed. This is really the only data available and more will be available late this year.

Proving a charge of OUI drugs in Massachusetts is a difficult task for prosecutors; cases involving prescription drugs can be very difficulty as usually the Commonwealth does not have evidence of the time of ingestion and the impact on your ability to operate a motor vehicle.

The Supreme Court of Iowa recently discussed the issue of OUI charges when the driver is on prescription drugs in Iowa v. Schories.

In Iowa v. Schories, the defendant was pulled over by a police officer for erratic driving. When the officer approached the vehicle, he noticed the defendant had blood shot eyes, had trouble paying attention and had an empty needle in his car.

OUI drug charges in Massachusetts are on the rise. What does the Commonwealth have to prove to secure a conviction?

In prosecuting an OUI drugs case, the police report will typically look very similar to an arrest for OUI alcohol, with the officer administering field sobriety tests. What typically compels an officer to bring an operating under the influence of drugs charge is an admission to ingesting drugs or the officer finding them during a search of the car. If no admission is made or no drugs found, an officer will only consider the charge after ruling out that alcohol is not the cause of the impairment.

In Massachusetts, if an officer pulls someone over who is suspected of operating under the influence of drugs, then there are certain procedural steps the officer should take to have a strong case of OUI drugs. Many officers who are not trained as a DRE will simply make an arrest and bring the charge; however, without the evaluation, there is a strong argument that there will be insufficient evidence to sustain a conviction.

Massachusetts DUI/drugcharges present unique challenges to prosecutors, compared to a standard, alcohol-related DUI charge. grenwonder.jpg

In a routine Attleboro DUI, police officers can test your blood alcohol level through a breath or blood test. They can note well-recognized signs of alcohol intoxication, and a lot of these cases are fairly straightforward (although there are always ways that a skilled Massachusetts DUI defense attorney can attack the credibility of those tests or the officer’s work).

Under Massachusetts General Law, Colorado Per Se Drugged Driving Bill Moving, By Phillip Smith, stopthedrugwar.org

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