Pubdate: Thu, 19 May 2016
Source: Boston Herald (MA)
Column: Full Court Press
Copyright: 2016 The Boston Herald, Inc
Note: Prints only very short LTEs.
Author: Bob McGovern
Bookmark: (Cannabis and Driving)


There's no easy way to convict someone of being stoned while behind 
the wheel, and recent high-court decisions tied with patchwork 
sobriety tests have made things even tougher for state prosecutors.

And it could be very difficult to prove that David Njuguna was high, 
as prosecutors say he was when he crashed into a state police cruiser 
in Charlton in March, killing trooper Thomas L. Clardy.

Any defense attorney in the state would rather handle an OUI 
marijuana than a standard drunken driving case. Even before pot 
smokers are pulled over, they have more protections than someone who 
had one too many beers.

"These are much more difficult to prove as a prosecutor. There's no 
test out there to measure the THC in your system," said criminal 
defense attorney David Yannetti, referring to the psychoactive 
substance in weed. "They're basically going off the smell of 
marijuana on your breath and some type of erratic driving. It's a lot 
harder to prove these cases beyond a reasonable doubt."

In a series of recent decisions, the Supreme Judicial Court has made 
it more difficult for police to pull someone over who has been 
smoking weed. The smell of marijuana - burned or fresh - doesn't give 
cops cause to pull over a vehicle, the court has ruled.

Even when a person drives erratically, roadside sobriety tests have 
been successfully challenged by attorneys across the state.

"Even if they have marijuana on the breath, people will pass the 
field sobriety test, or police can't show that it affected their 
driving," said defense attorney Mark Helwig. "You can't really 
quantify how much marijuana someone had without a sophisticated test."

The SJC currently is mulling a case it heard in February challenging 
whether police officers should even be allowed to testify about the 
administration and results of field sobriety tests.

There are blood tests that detect marijuana, but even then, there are 
few slam-dunk cases. First, you're allowed to turn down the test 
without worrying about losing your license, as a drunken driving 
suspect would. If police do get a blood sample, it isn't conclusive 
evidence that you were driving stoned.

Unlike the .08 needed to show you were driving under the influence, 
there is no legal standard for THC levels in the Bay State.

"The fact that it's in your system doesn't mean you were under the 
influence," said Terrence Kennedy, a defense attorney and member of 
the Governor's Council. "Absent levels of THC and expert testimony to 
say how it would affect you, it's not even admissible."

All told - even with heaps of evidence and glassy eyes - the law in 
Massachusetts today is slanted in favor of stoners.
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