Enforcement of pot OUI goes up in smoke
SJC bars sobriety test testimony
Driving under the influence of marijuana is a crime in Massachusetts, but a series of decisions from the state’s highest court has made it almost impossible to effectively police and prosecute now that the drug is legal.
The Supreme Judicial Court ruled yesterday that police can’t testify about whether a driver passed or failed a roadside sobriety test used to determine whether they were high on pot. A unanimous court also found that officers who are not qualified as experts can’t opine as to whether a driver was stoned behind the wheel.
“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,” Justice Frank M. Gaziano wrote for a unanimous court.
The ruling means that cops can testify about observations, but they’re not allowed to come to conclusions in court.
“I think the court diminished the value of these tests and how much weight a jury can put on the test,” said Michael DelSignore, a defense attorney who supported the SJC’s decision. “The public believes that the tests have validity, but they have never been declared scientific.”
Yesterday’s decision ties into a series of SJC rulings that make it increasingly difficult to police driving under the influence of marijuana. In 2015, the court ruled that police can’t stop a vehicle even if they smell marijuana emanating from the car. A year earlier, the court found that smelling marijuana did not give police probable cause to search a vehicle.
“They put the cart before the horse. We legalized the drug even though we knew there would be an increase in drugged driving situations,” said Walpole police Chief John Carmichael Jr., speaking for the Massachusetts Chiefs of Police Association.
“We don’t have the mechanisms in place to enforce the increase that we will see,” he said.
DelSignore said of the OUI cases he handles, only 1 in 15 involves marijuana and that they are “very hard to prove.” Carmichael insisted that police will continue to try and crack down on stoned driving, even if it means charging a driver with negligent or reckless operation of a motor vehicle.
Unlike OUIs, the penalties for negligent operation of a motor vehicle don’t get harsher if you get more than one.
More importantly, the sentences imposed don’t address the underlying substance-use issues.