Articles Posted in DUI drugs

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.

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,

Those requiring South Shore OUI defense should be aware of recent news reported by Massachusetts state statute Chapter 90, section 24 to drive while intoxicated on any substance, proving a drug OUI, as opposed to an alcohol OUI, can be more difficult.

That’s because while measuring the alcohol in your blood involves taking a breathalyzer test, most drugs aren’t going to show up that way. Certain signs of drug impairment – like pupil size or heart rate – aren’t as easy for law enforcement to spot. What’s more, just because you have drugs in your possession doesn’t automatically prove that you took them.

In other words, you don’t need to necessarily be an expert to recognize when someone is drunk. However proving that someone is under the influence of drugs is tougher.

According to the law, in order to secure a conviction on a South Shore OUI charge, prosecutors need to show that you took drugs you were not legally authorized to take, that those drugs caused you to be impaired, that you were driving a motor vehicle and that you were on a public street. This may sound straightforward, but unless the agency has an expert to testify, proving you were impaired is not as simple as it seems.

So what many law enforcement offices do is hire or train Drug Recognition Experts (DRE’s). These are law enforcement officers who have gone through fairly intensive training to recognize whether an individual is under the influence of drugs. The testimony of these individuals can be quite compelling in court. That doesn’t mean you can’t beat the charge with the help of a skilled South Shore defense attorney, but it does make the job more challenging.

These so-called “experts” offer nothing more than their opinion about a driver’s state of intoxication — much like Massachusetts field sobriety test results, that opinion can be challenged.

The problem for many South Shore law enforcement agencies is that having a DRE is expensive.

In 1995, the state started a Drug Evaluation Classification program, which purported to give police the ability to identify the specific effects of drug intoxication. Right now, there are about 75 DRE’s in Massachusetts. Police don’t feel that’s enough.

The training takes a great deal of time. A certified DRE will have completed 80 hours of instruction in the classroom, and then conduct drug impairment examinations on at least 12 drugged individuals. Then, they must pass a five-hour written examination. Because the state hasn’t funded the courses for two years now, the cost must be absorbed by the agency, which, in addition to paying for the actual training, must cope with being short of that officer during the training period.

So while most departments think it would be ideal to have one or two employed on the force, it’s often just not feasible. Sometimes, agencies have resorted to reaching out to a DRE on a neighboring force. But there are issues with this because the effects of certain drugs don’t last long. By the time the DRE arrives, the effects may no longer be evident.
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Police in New York are reporting that drug DUI cases are on the rise, which likely means that Massachusetts drug OUI cases are on the rise as well due to prescription drug abuse and an increased emphasis on enforcement.

The problem with this charge is that police are far behind in getting proper training to determine when someone is under the influence of drugs. Every law enforcement officer gets months of training to figure out when someone has been drinking and driving, but drugs are a different story. Drugs also stay in a person’s system longer than alcohol, making such training suspect at best.
Consulting with an experienced Massachusetts OUI attorney is critical in cases like this because law enforcement officers sometimes get cases like these wrong. In cases where a person has used prescription drugs and driven, officers often lack the ability to properly make the determination of whether they have broken state law.

Very few officers are trained in as drug recognition experts. In fact, the group in Florida that trains officers reports that there are just over 5,000 officers certified as drug recognition experts in the world. That means that less than 1/10 of 1 percent of all officers worldwide hold this distinction.

The odds of small towns throughout Massachusetts having these experts are low. And an experienced Massachusetts Drug OUI lawyer places as much faith in these “experts” as they do in common OUI testing like field sobriety tests and breathalyzers. Much of what is used to determine OUI in Massachusetts is flawed and that can be pointed out in defense of the client.

According to the story out of New York, there were 352 arrests in 2008 in a three-county area north of New York City. The number dropped to 326 in 2010. Numbers overall are on the rise compared to 2001, when there were 145 drivers charged with the crime.

The interesting thing about the statistics is that this is such a low number of cases. The population in the three-county area is nearly 1.4 million and yet only 300 people a year face these charges. This is either because few people in this area use prescription drugs, which is unlikely, or police just don’t know how to recognize and deal with the issue.

Officers quoted in the story say they are getting more and more training to recognize drug OUI cases, but they still aren’t at the point where they can properly spot it. One officer admits that while there are breath testing devices that can provide estimates of blood alcohol levels in drivers, there is no such device for drug OUI cases.

This means that a driver who is charged with drug OUI in Massachusetts is arrested solely based on an officer’s observations. If the person has balance problems and fails a field sobriety test, the officer could blame it on drugs, but that could be a defense. What happens if there are no drugs found in the vehicle and the driver doesn’t admit to taking any drugs? How can an officer legitimately file a charge without any evidence that a drug was consumed?

These are issues that must be addressed by an experienced Massachusetts OUI lawyer. A driver cannot leave this up to chance because there are many options and defenses that a suspect can put together.
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