Pubdate: Tue, 19 Sep 2017
Source: Boston Globe (MA)
Copyright: 2017 Globe Newspaper Company
Author: Dan Adams


Members of the Mass. State Police performed a sobriety test on a
driver in Chicopee in 2011.

The state's highest court on Tuesday limited which evidence can be
used in court to prosecute drivers suspected of operating under the
influence of marijuana, handing a victory to civil rights advocates in
a closely-watched case.

Under a unanimous ruling by the Supreme Judicial Court, Massachusetts
police officers can no longer cite their subjective on-scene
observations or sobriety tests to conclude in court testimony that a
driver was under the influence of marijuana.

In limiting the use of the familiar roadside tests designed to provide
an approximate measure of drunkenness - walking in a straight line,
standing on one foot, and so on - the court cited the "highly
disparate results" of scientific studies on whether such tests
reliably indicate how stoned someone is.

"There is as yet no scientific agreement on whether, and, if so, to
what extent, these types of tests are indicative of marijuana
intoxication," the justices wrote in their decision.

The judges also noted that the effects of marijuana on its users are
more complex than those of alcohol on drinkers, and less obviously
correlated to the amount consumed, making it difficult for untrained
observers to know whether someone is high.

"Because the effects of marijuana may vary greatly from one individual
to another, and those effects are as yet not commonly known," the
court said, "neither a police officer nor a lay witness who has not
been qualified as an expert may offer an opinion as to whether a
driver was under the influence of marijuana."

Police officers can still arrest drivers they suspect are high and
describe how the drivers behaved during the roadside tests. For
example, an officer could tell a jury that a driver failed to walk in
a straight line or count backwards. But under the ruling, the officer
could not describe those tasks as "tests" or say the driver "failed"

Similarly, an officer could tell a jury - as a lay witness, not an
expert - that a driver smelled strongly of marijuana and seemed
confused, but could not use such subjective observations to conclude
the driver was high.

While police and other untrained witnesses can no longer opine in
court about whether defendants are high, the court ruled that jurors
"are still permitted to utilize their common sense" in considering
whether the sobriety assessments and other evidence indicate marijuana

The defendant in the case is Thomas Gerhardt, who was stopped in
Millbury in February 2013 by a State Police trooper for allegedly
driving with his lights off, according to a statement of facts agreed
to by both sides in the case.

The trooper testified he saw smoke inside the vehicle, smelled
marijuana, and that Gerhardt told him there were "a couple of roaches"
- - slang for mostly-burned marijuana joints - in the car's ashtray.
Gerhardt allegedly said he had smoked about a gram of marijuana. He
then failed to properly follow the instructions for the
"walk-and-turn" test, the trooper said, placing his feet side-by-side
instead of heel-to-toe, and also struggled to stand on one foot.
Gerhardt was able to count and recite the alphabet backwards.

The case has not yet gone to trial, amid legal wrangling over which
evidence can be admitted in court.

Rebecca Jacobstein, Gerhardt's attorney, called the ruling a victory
over "junk science."

"The big take-away here is that for the government to introduce
something as science, it actually has to be science," she said in an
interview. "Only real evidence gets to come in, and that's a good
result for my client and for the law."

Jacobstein said the decision does not make it harder for law
enforcement to deter stoned driving.

"I look at this more as a protection of people's right to have only
meaningful and relevant evidence used against them," she said.

A spokesman for the Massachusetts Chiefs of Police Association, was
not immediately available for comment. A spokesman for Worcester
County District Attorney Joseph D. Early Jr., whose office is
prosecuting Gerhardt, did not immediately have a comment.

Jay Winsten, director of Harvard University's Center for Health
Communication and a pioneer of OUI awareness campaigns, said he is
concerned about the potential for an increase in traffic fatalities
now that recreational marijuana is legal in Massachusetts. However, he
praised the court for taking a "middle ground" approach that allows
roadside tests to admitted as relevant evidence without being assigned
undue significance.

"I think it was a wise, smart, and careful decision," Winsten said.
"It keeps field sobriety tests in the picture without allowing police
officers to claim they constitute unequivocal evidence of marijuana
intoxication, which would be suggesting something that goes beyond
what's currently known."

"In the end," he added, "it's up to the common sense of jurors."
- ---
MAP posted-by: Matt