The Massachusetts Supreme Judicial Court will hear arguments this Friday September 7, 2018 in the case of Commonwealth v. Davis.      The case raises the issue when the police have probable cause to arrest based on a belief that someone is impaired by marijuana.  In this case, the defendant Davis was charged with Carrying a firearm without an FID card and drug possession with the intent to distribute.  He was found not guilty of Firearm offense, which carried an eighteen month mandatory minimum sentence, but convicted of the Drug possession with intent to distribute charges. 

       The Drugs were found during an alleged inventory search of the car.  The officers justified the search of the car based on the probable cause to believe that the defendant was operation under the influence of marijuana.  The issue is whether police have probable cause to arrest based on an odor of marijuana and other indicators that the officer observed. 

In this case, the evidence that the operator was impaired by marijuana was very weak.  The defense on appeal also challenged the issue of whether the inventory search was proper.  I submitted an amicus brief in this case on behalf of the National College of DUI Defense.  I am a member of the College’s amicus committee and have been a member since 2007.  Based on the officer belief that the defendant was under the influence of marijuana, the officer search the car and discover the evidence that was later used to convict the defendant of the drug charge.  

The officer initially stopped the defendant for speeding.  When he approached the car, he noticed the strong smell of marijuana.  The defendant handed him his license without issue and explained that he was speeding because he was late, trying to get to New York.  The defendant admitted smoking two hours earlier; the officer observed red eyes, dry spit on his face, slow and lethargic speech.  It was based on these observations that an exit order was issued.

To issue an exit order, an officer must have reasonable suspicion to believe that the defendant has committed a crime that warrants further investigation.  An exit order is not automatic under Article 12 of the Massachusetts Declaration of Rights, unlike under the 4th Amendment to the United States Constitution where an officer does not need any additional justification to issue an exit order after a valid motor vehicle stop.  The officer did not perform a field sobriety test and was not trained as a Drug Recognition Expert, referred to as a DRE.  He engaged the defendant in conversation, found he did not follow instructions, had his head bowing down and had a hard time focusing.  The defendant was placed under arrest.  It was this arrest that was used as the basis for the search of the car.

In our brief to the SJC, we argued that evidence of consumption of marijuana is insufficient to establish probable cause that the motorist was impaired.  In support of this argument, we cited the scientific literature that shows that consumption does not equate to impairment.  To read the SJC filing in this case you may click on this link from the Massachusetts Supreme Judicial Court website.

Scientific studies show that marijuana does not necessarily impair someone’s ability to drive.  Typically, subject under the influence driver slower, not faster as was the case in Davis.  While marijuana can impair driving, it depends on the amount of marijuana consumed, the time of consumption and the person’s tolerance.  The peak impact of marijuana is said to be ninety minutes after consumption.  Further, it was argued that an admission to consumption does not support an inference of impairment without evidence of the person’s tolerance.

The physical observations that the officer saw regarding the defendant did not support probable cause that he was impaired.  The officer was not trained as a DRE so his generic and subjective observations were not enough to support probable cause to arrest the defendant.

The SJC took this case from the Appeals Court on its own motion. I suspect that the SJC took this measure to use the Davis case to clarify the law on the issue of probable cause to arrest based on a smell of marijuana.  This case should require more than a mere odor and admission to consumption to establish probable cause to arrest.

To learn more about OUI marijuana and other type of drug arrest in Massachusetts you may visit our website.  Attorney DelSignore has lectured on defending OUI drugs cases to the Vermont Criminal Defense Lawyers and has written extensively on this topic.