Pubdate: Sat, 07 Jan 2017
Source: Boston Globe (MA)
Copyright: 2017 Globe Newspaper Company
Author: Laura Crimaldi


In a state that just legalized the recreational use of marijuana, can
field sobriety tests used to determine whether drivers are drunk also be
administered to demonstrate that a person is too high to operate a motor

The state Supreme Judicial Court on Friday took up that question in a case
that is being closely watched by police and advocates for marijuana

The justices also heard arguments over whether police officers can give
jurors their opinion of whether a driver is drugged on marijuana.

The debate comes in the case of Thomas Gerhardt, 25, who is fighting
charges of operating under the influence of marijuana. The court took the
matter under advisement and will issue its decision later.

Gerhardt's lawyer said there is no scientific evidence correlating a
driver's performance on field sobriety tests and impaired driving in cases
where marijuana use is suspected.

"The point here is that in alcohol cases they have shown a correlation,"
attorney Rebecca A. Jacobstein said. "But there is nothing in that for

Lawyer Michelle R. King, who represents Worcester District Attorney Joseph
D. Early Jr., disagreed, arguing that jurors should be allowed to hear
about field sobriety testing when a driver is accused of driving high.

She said three recent studies have shown connections between poor
performance in field sobriety tests and some level of tetrahydrocannabinol
in the blood. Tetrahydrocannabinol is the main psychoactive ingredient in

"The police officer may then testify, as they do in alcohol-related
impairment cases, that these were my observations when the driver
performed the field sobriety tests and it is my opinion that the driver's
driving abilities were diminished," King said.

Gerhardt was charged after being pulled over at about 12:20 a.m. on Feb.
13, 2013 in Millbury, court papers show. A State Police trooper stopped
Gerhardt because he was driving with his vehicle's rear lights off, the
papers said.

The trooper detected the odor of burnt marijuana inside the vehicle, and
Gerhardt acknowledged there were "a couple of roaches" in the ashtray,
according to the papers.

He later told the trooper that he had smoked about a gram of marijuana
three hours beforehand, the court records show.

During the stop, Gerhardt performed field sobriety tests. He successfully
recited the alphabet, and counted numbers backward. He showed no signs of
involuntary jerking or bouncing in the eyes when asked to follow a slow
moving object like a pen or flashlight horizontally, symptoms that
officers look for during roadside tests, court papers said.

But Gerhardt performed poorly when asked to stand on one leg and take nine
steps in a straight line and turn, leading the trooper to conclude that he
was impaired and under the influence of marijuana, court papers said.

During a search of Gerhardt's vehicle, police said they found roaches and
a marijuana stem.

Jacobstein argued that a police officer's assessment of whether a driver
safely operated a motor vehicle cannot stand alone when marijuana use is

Jurors need to hear from experts on this issue, she said, because the
average person isn't familiar with the physical manifestations of
marijuana use and how it impacts driving ability.

"It's not particularly helpful to the jury to hear that the officer thinks
that he's high," Jacobstein said. "If they don't have a general
understanding of what the physical characteristics of being high are and
how that correlates to driving, then all they're doing is they're just
speculating as to what that means."

King said expert testimony is unnecessary because marijuana use is so

"It is a common experience of a juror that an expert is not required to
explain," she said.

Justice Geraldine S. Hines asked how police could testify about field
sobriety tests when scientists have not reached a consensus on their
reliability despite new studies that found they can show impaired driving
when marijuana use is involved.

"The 2016 studies that you are talking about would just add to the mix of
different opinions about this," she said. "It wouldn't be dispositive or

Gerhardt has support from the National Organization for the Reform of
Marijuana Laws or NORML and the National College for DUI Defense, Inc.
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