Charlie Buttrey

January 15, 2019

As more and more states legalize pot, courts will have to address the question of what evidence the State will need to establish that a person is driving under the influence of marijuana. There is, as yet, no blood or breath test that can determine impairment (THC metabolytes in the blood merely confirm that the person consumed pot within the last few days, not that he or she is currently under the influence). And whereas the current battery of field sobriety tests are accurate about 85-90% of the time (when properly conducted), there are no such scientifically-proven tests to establish impairment by pot.

The Supreme Judicial Court of Massachusetts yesterday released an opinion suggesting that an officer’s opinion that someone is impaired may be evidence enough.

In that case, an officer on traffic duty saw the defendant (1) drive at speeds between seventy and eighty miles per hour, (2) follow “dangerously close” to two other vehicles, (3) fail to slow down at a toll booth plaza, (4) drive seventy miles per hour in a zone with a posted speed limit of thirty miles per hour, and (5) when signaled to stop, stop on the left-hand side of the toll booth egress.

When the officer approached the vehicle, he detected a strong odor of burnt marijuana and an odor of fresh marijuana coming from within the vehicle, and the defendant also smelled of burnt marijuana.  The officer testified that the defendant’s eyes were “red,” “glassy,” and “droopy,” and that he was “fighting with the eyebrows, trying to keep his eyes open.”  He had “dry spit” on the sides of his mouth, his tongue was dry, he was “licking his lips” in responding to questions, and “his speech was slow and lethargic.”  The defendant admitted to smoking marijuana “a couple of hours ago.”

Enough to establish probable cause to believe that the driver was too impaired to drive? The court thought so.

While conceding that “it is often difficult to detect marijuana impairment, because the effects of marijuana consumption vary greatly amongst individuals,” and observing that “as yet there are no validated field sobriety tests” to evaluate impairment by marijuana, the court was satisfied that the officer’s observations were sufficient to establish probable cause (which led to the defendant’s arrest, which led to the impounding of his car, which led to an inventory search of his car, which led to police discovering things in the car that the defendant wishes they hadn’t discovered).

My take-away: If you are going to smoke pot, don’t drive. If you are going to drive, don’t smoke pot.

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