Pubdate: Mon, 08 Sep 2014
Source: Worcester Telegram & Gazette (MA)
Copyright: 2014 Worcester Telegram & Gazette
Contact:  http://www.telegram.com/
Details: http://www.mapinc.org/media/509
Author: Brian Lee

POLICE FEAR INCREASE IN DUI-MARIJUANA WITH LIBERALIZATION

VIOLATION 'EXTREMELY HARD TO PROVE'

The local law-enforcement community says it is bracing for additional
DUI-marijuana cases, which are hard to prove.

At issue is what they say is the potential for greater access to pot
in Massachusetts because of this year's introduction of medical
marijuana facilities, the 2009 decriminalization of an ounce or less
of street-level marijuana, and a possible statewide ballot question to
legalize it outright.

That there is no program or training for law enforcement to
consistently detect marijuana use adds to the potential problem,
officials said.

Driving under the influence of marijuana, said A. Wayne Sampson,
executive director of the Grafton-based Massachusetts Chiefs of Police
Association, "is extremely hard to prove, unless the officer observes
some type of egregious operation, and is able to either detect
(marijuana) through odor or other visible evidence."

The former Shrewsbury police chief continued: "We're going to have a
great difficulty in proving these cases, and we expect it to get much
worse as time goes on, with the introduction of the other things,"
namely medical marijuana and the ballot initiative to legalize pot,
which Mr. Sampson said he suspects will triumph.

Twenty-one states and the District of Columbia have laws legalizing
marijuana in some form. Colorado and Washington state have legalized
marijuana for recreational use; other states permit medical marijuana.

The Marijuana Policy Project, a Washington, D.C.-based advocacy group
behind the Colorado legalization campaign, has opened a ballot
committee in Massachusetts for a marijuana legalization campaign in
2016.

Walpole Deputy Police Chief John F. Carmichael Jr., authorized to
speak by the police association on the matter, explained the
difficulty of prosecuting such cases in Massachusetts.

When a person is issued a driver's license, that privilege requires
submitting to a breath test and blood comparison if arrested for
drunken driving.

If the driver refuses the test, the privilege to drive may be
suspended for a length of time, up to life.

The commonwealth has a law indicating that there is a presumption that
the driver is indeed impaired if a blood-alcohol ratio is .08 or above.

But for drug cases, there are only a few trained police officers in
Massachusetts, called drug-recognition experts. Many small departments
lack one, Deputy Chief Carmichael said.

The recognition experts are trained to view a variety of tests and
medical traits associated with drug use and impairment.

"The problem is that these tests do not have a 'per se' amount to
determine what impairment actually is, and there is no implied consent
rule for drugs, so there is no penalty for refusing the test," the
deputy chief said.

In addition, Massachusetts officers are primarily focused on standard
field sobriety testing for alcohol, and there is no standardized
testing for driving under the influence of drugs, he said.

Typically, officers do the same tests for DUI alcohol, he said, which
is not an effective method to demonstrate impairment since there are
different responses to certain tests depending on the particular substance.

Marijuana-advocacy groups have argued that questions remain regarding
the degree to which cannabis intoxication actually impairs driving
performance.

According to a 2011 paper by the National Organization for the Reform
of Marijuana Laws, acute cannabis intoxication after inhalation has
been shown to mildly impair psychomotor skills, but the impairment is
seldom severe or long-lasting.

The Marijuana Policy Project said blood testing appears to be the only
reliable way to determine the level of THC in the body, because urine
tests cannot show that a person has recently used marijuana. THC, or
tetrahydrocannabinol, is the main mind-altering ingredient in marijuana.

The MPP adds that most credible scientists working on the issue
acknowledge the difficulty identifying THC impairment with a number.

Meanwhile, Worcester District Attorney Joseph D. Early Jr. said his
biggest fear is that kids are going to think it's OK to smoke pot
because of the growing leniency of marijuana laws.

"We see so much carnage on the roads now, that you basically can get
kids, with their reaction times slowed, their ability to think clearly
diminished, getting behind the wheels of cars. You're just going to
see an increase in accidents."

Mr. Early said he opposed decriminalization of an ounce or less of
marijuana, opposes legalization, but supported medical marijuana with
regard to terminal illnesses and glaucoma.

"But I oppose the sentence within the proposed statute that said 'for
any and all medical conditions that a doctor deems necessary,' because
it's just another way of saying, as we learned in Colorado, you can
get pot prescribed by some doctor for almost any reason," Mr. Early
said.

Alcohol has its inherent problems, but as a general rule, most people
tell if a person is drunk, by looking, the district attorney said.

"It's not so easy with marijuana, and it's not so easy to convince a
jury or a judge beyond a reasonable doubt that marijuana is the basis
for their behavior or the basis for what they're doing, unless we get
a blood test or urine test that shows THC levels. We can't do that
without a search warrant a lot of times," he said.

Asked whether police would devote less time to pursuing hard-to-prove
DUI-marijuana cases, Mr. Early said, "We're going to see more and more
arrests for operating under the influence of marijuana, especially if
they've got a joint going in the car, there's a heavy smell of
marijuana when the police gets to the door. They're going to try to
keep the public safe."

In Dudley District Court three years ago, then-Acting Judge Robert G.
Harbour suggested to area police departments that they add the charge
of negligent driving to any case involving operating under the
influence of drugs or alcohol.

The negligent-driving charge, which says that the driver drove in a
manner that "life and safety of the public might have been
endangered," is easier to prove, and at times, the jury will convict
on that charge, even if the commonwealth loses on the DUI charge,
local authorities said.

Meanwhile, Auburn Police Chief Andrew J. Sluckis Jr., said that, in
2016, "if and when" marijuana is legalized, "it's going to be too late
to put the genie back in the bottle."

"Come 2016, I think myself and a lot of other people in law
enforcement and the judicial system are going to sit there and shrug
their shoulders and say: 'What did you think was going to happen?'
"

He added: "I don't know where some people's priorities are when they
vote for things like this, but we'll see what happens."

Chief Sluckis said new legislation making it easier to secure DUI
marijuana convictions would be welcome.

But "it's probably going to be like everything else," he said.
"Everybody tries to play catch-up after the fact, when we should
really be putting some safeguards in place now, to deal with the
fallout of probable legalization in 2016.

"But until cars start piling into one another at an alarming rate,
then someone will say: 'Gee, we probably need to address this,' when
in fact it really should be addressed proactively right now."
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MAP posted-by: Matt