The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Thomas Gerhardt raising the issue of whether field sobriety tests should be admissible for an OUI marijuana arrest.

While it is difficulty to predict how judges will decide from questions, here are my thoughts.

The Justice stated that it would be improper with an objection for an officer to testify that a defendant passed or failed field sobriety tests in an OUI alcohol or marijuana case.  It appeared as though the Justice seemed to think that because an officer can testify that someone stumbled getting out of the car, that it is not significantly different to say that the individual could not follow instructions on a field sobriety test.

The Commonwealth argued that the Worcester Country District Court judge was clearly erroneous in concluding that no studies correlated poor performance on field sobriety tests and impairment by marijuana. One Justice indicated that it is clear that there is no agreement in the scientific community and that it is troubling to allow a police officer to testify to impairment by marijuana when the scientific community has not reached that agreement yet.  No other Justices joined in that line of inquiry.

It appeared as though the Justice were looking for a compromise to allow the field tests into evidence with a limitation, such as, that the officer cannot indicate that the defendant passed or failed the exercise. I would not expect the SJC to require the officers to be trained as an expert based on the questioning of the panel but would require a foundation of training and familiarity with the signs of marijuana impairment.

I think that the Court may leave open the possibility of a defendant requesting a hearing prior to trial regarding the officer’s training and experience to challenge the admissibility of the testimony prior to it be admitted into evidence at trial. If the SJC encouraged evidentiary hearings prior to the admissibility of the opinion testimony, it would provide defense lawyers with an opportunity to challenge the basis of the opinion prior to it being admitted.

The Justices mentioned in questioning defense counsel that the field sobriety tests are one element in the brick of evidence that is put to a jury in building the case. The Justice also seemed to believe that even in alcohol cases it is still true that field tests do not always correlate to impairment and according it is for the jury to assign any weight that this tests should be given. While it is hard to predict how the SJC will rule, I would expect the court to allow the evidence in with a jury instruction indicating that there is a disagreement in the scientific community as to whether these exercise correlate to impairment and a requirement of a motion in limine prior to admitting the officer’s testimony to determine the officer’s experience and training in marijuana impairment.  While as a defense attorney I would prefer the evidence be excluded, as I agree with the defense counsel argument, that the science does not support the field tests being admitted in an OUI marijuana, it appeared that the panel was not going in that direction.  A strongly worded jury instruction or an evidentiary hearing prior to trial, would be a helpful compromise if the court were to find that the tests should be admitted without expert testimony.

Attorney DelSignore is a Massachusetts OUI Lawyer who has handled numerous cases involving OUI marijuana, is an active member of the National College of DUI Defense and published an amicus brief in the Gerhardt case.  If you would like further information about this case, or any issue involving drunk driving defense, feel free to call, 781-686-5924.

You can listen to the oral argument in Gerhardt at the Suffolk University Law School website.

For further Reading Martha Bebinger, published an excellent summary of the oral argument on All Things Considered.