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Field Sobriety Testing in Massachusetts Marijuana Cases

roachIn a recent Massachusetts case, the court considered whether field sobriety tests were admissible in situations in which the police believe a driver may have been driving under the influence of marijuana.

The case arose in 2013, when the police watched a blue motor vehicle traveling south on Route 146 without its rear lights on. The police followed the car and activated their lights. The officer approached on the passenger side. There were three people inside:  the driver and two passengers. Smoke was in the car, and the officer smelled burnt marijuana when the window was rolled down. The officer also saw cigar tobacco on the floor and a cigar slicer on the key ring of the key that was in the ignition. The officer asked the driver for his license and registration.

The driver gave the officer his license but said he didn’t have his registration. The officer asked him how much pot he had in the car, and the driver answered there were roaches in the ashtray. Two mostly consumed rolled cigarettes were taken out of the ashtray and provided to the officer, who asked when they smoked pot. A passenger replied they’d smoked 20 minutes earlier, but the driver answered it had been three hours earlier.

The officer went to the driver’s side of the car and saw the light switch was off. He asked the driver how much he’d smoked, and the driver replied he’d smoked one gram. The officer asked him to get out of the car to perform field sobriety tests. The officer administered the one leg stand, the horizontal gaze nystagmus test, and the nine-step walk and turn.

The driver didn’t have nystagmus indicators and could count backwards and recite the alphabet. However, he didn’t perform the walk and turn as instructed. Based on this, the officer decided he was impaired and then administered the one-leg stand. In this test, he couldn’t stay upright and swayed. He decided the test results showed he was impaired.

The officer used the test results to decide he was under the influence of marijuana and put him in the back of the cruiser without arresting him. He pat frisked the passengers, who were also placed in the back of the cruiser with no arrest. While searching the car, the troopers recovered two more roaches and a pot stem.

The driver was charged with operating a car under the influence of drugs in violation of G. L. c. 90, § 24 (1) (a) (1). He was convicted.

The appellate court explained there are three field sobriety tests that may be administered:  the walk and turn test, the one-leg stand test, and the horizontal gaze nystagmus test. The tests were developed to measure whether alcohol had been consumed, and the court noted that there was a consensus in the scientific community about a correlation between failing these tests and having a BAC of at least .08%.

Courts haven’t determined whether there is any scientific agreement on whether these tests show marijuana intoxication. Research on whether FSTs can measure marijuana impairment has resulted in hugely disparate claims. Some studies show some relationship between inadequate performance on FSTs and consuming marijuana, while others show no relationship. Even though there’s no scientific consensus about using standard field sobriety tests to try to evaluate marijuana intoxication, this doesn’t mean there’s no probative value beyond drunkenness.

The Massachusetts appellate court determined that FST results can be admitted at trial as observations of the police officer conducting the test to the extent they’re relevant to establish acuity, coordination, and balance. The police officer can testify about the physical characteristics of the driver, such as red eyes and drowsiness, but he cannot link that to an opinion that these characteristics indicate the driver is under the influence of pot. However, the introduction of roadside assessments is supposed to be without commenting on whether the performance indicated impairment.

The appellate court noted that the effects of marijuana can be significantly different from one person to another. Neither a police officer nor a layperson can offer an opinion about whether the driver was under the influence of marijuana.

The case was sent back to the lower court for proceedings consistent with the appellate court’s conclusions.

If you are charged with a drug crime in Massachusetts, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014