Governor Charlie Baker Introduces Legislation to Address “Drugged Driving”

Massachusetts was one of the first states to legalize marijuana for recreational use in 2016. However, with marijuana legalization came accidents resulting from driving while high. To address is this issue, governor Baker announced a legislative proposal that would update Massachusetts’s road safety laws. The legislation is named for State Trooper Thomas Clardy, who was killed when a driver high on marijuana crashed into his car. 

This new bill would adopt the recommendations of the Special Commission on Operating Under the Influence and Impaired Driving by revoking someone’s license for six months if they are suspected of operating under the influence and marijuana and refuse to take a chemical test for impairment. Additionally, the bill would prohibit drivers from having loose or open packages of marijuana in their cars. This new bill would treat marijuana much like alcohol for driving purposes.  Currently, if someone is charged with OUI drugs, a police officer will typically file an immediate threat suspension which takes the person off of the road for an average of nine months to one year and requires the person to completely a substance abuse evaluation.  

On January 6, 2017 the Massachusetts Supreme Judicial Court will hear oral arguments in the case of Commonwealth v. Thomas Gerhardt. This case raises the issue of whether field sobriety tests, which are routinely used to determine whether someone is under the influence of alcohol, can additionally be used to be determine if someone is driving under the influence of marijuana. Field sobriety tests have been studied extensively with relation to alcohol, and they are accepted as being proper evidence in the prosecution of driving under the influence of alcohol. However, the field sobriety tests have never been studied with regards to whether or not they can help determine if a person is impaired by marijuana.  Attorney DelSignore filed an Amicus Brief on behalf of the National DUI College, an organization he has been a member of since 2007.

A judge in the district court ruled that these tests are inadmissible because they are unreliable and do not have any scientific support behind them. The judge concluded that whether someone passes or fails a nine step walk and turn or a one-leg stand does not help a jury determine whether the defendant is under the influence of marijuana. The Government argued that these tests do in fact have relevance because a persons reduced balance and the ability to follow instructions is a correlated with impairment by marijuana just as it is for alcohol.

Police officers in Massachusetts and in particular State police officers have increased the number of arrests for OUI drugs, including marijuana. Massachusetts law prohibits a person from driving under the influence of marijuana, but it is difficult for the Commonwealth to prove this in Court. Recent case law, also may provide further defenses for those charged based on a violation of their Article 12 rights under the Massachusetts Constitution. 

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OUI drug charges can be difficult for the Commonwealth to prove. This was evident in the recent case of Commonwealth v. Sousa, decided last week. In this case the defendant was convicted of OUI drugs and negligent operation of a motor vehicle after a bench trial in the Malden District Court. Bench trials are very common for an OUI drugs charge given the technical nature of the evidence and defenses.

After the guilty verdict, this case was brought to the Appeals Court. The defendant had appealed his conviction because he had believed that the Commonwealth presented insufficient evidence that the defendant was, in fact, under the influence of a prohibited substance.  In reaching its decision, the Court relied on the decision of Commonwealth v. Ferola, which also found that the Commonwealth must presented particular evidence as to the substance it is alleged that a defendant is under the influence of to support a conviction.

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