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.

First, the officer who is trained as a drug recognition expert (DRE) must evaluate the suspected motorist. The evaluation consists of:

• Ruling out alcohol: if the motorist blows below .08 and the officer still suspects that the motorist is impaired.
• Interview the arresting officer: the arresting officer tells the DRE officer why he pulled the motorist over and if there is evidence of drug use, such as pill bottles or admissions of the motorist.
• HGN and VGN test: a test preformed where an officer requests that the motorist follow an object with his or her eyes. The officer is looking for these impairments that indicate drug use:
the eye cannot follow a moving object smoothly,
there is exaggerated deviation when the eye is at maximum deviation,
and the angle of jerking is within 45 degrees of the center of the eye.
• The divided attention test: this is the same test as the field sobriety test for OUI alcohol offenses.
• Vital signs: the DRE checks the motorist’s blood pressure, temperature, and pulse.
• Dark room examination: The DRE checks the motorist’s pupil’s in three different lights to determine drug use.
• Examination of muscle tone.
• Check for injection sites and third pulse.
• Statements or other observations.
• Analysis and opinion of the DRE.
• Toxicological examination.

To read an excellent blog about DRE exams in DUI drug cases see the following blog by Attorney Justin McShane.

The second step in the process is for the Commonwealth to prove the identity of the drug that caused the impairment. The definition of what the Commonwealth considers to be a “drug” is contained in Massachusetts General Law, chapter 94, section 1.

There is a possibility that the police arrested a motorist with the suspicion that he or she was under the influence of drugs, but the drug is not clearly defined under Massachusetts General Law, chapter 94, section 1.

This situation occurred in Commonwealth. v. Green, 556 N.E.2d 387, 389 (Mass. 1990). The defendant was arrested for operating under the influence of narcotic drugs. There was evidence that the defendant has consumed codeine, for which he had a prescription.

Massachusetts General Law, chapter 94, section 1, did not directly define codeine as a narcotic drug. The law did specifically state that opium, from which codeine is derived, is a narcotic drug. But the Court held that this was not enough to show that the law encompassed codeine.

When charged with an OUI drug charge in Massachusetts, there are two issues that frequently come up, is the drug alleged you were under the influence covered by the statute and can the Commonwealth prove you were under the influence at the time of operation. By understanding the issues at play in an OUI drugs charge, you can have better confidence that your case can be successfully defended in court.