Massachusetts Supreme Judicial Court Says Cops Cannot Offer Opinion that Motorists are Under Influence of Marijuana

In an important decision delivered today, the Massachusetts Supreme Judicial Court ruled that a police officer who is not qualified as drug recognition expert may not tell the jury he believed a motorist arrested for OUI-Drugs was under the influence of marijuana.  The name of the case is Commonwealth v. Gerhardt. 

On February 13, 2013, a Massachusetts state trooper stopped the defendant’s car at just past midnight because the defendant’s rear lights were not illuminated.  The defendant was driving and there were two passengers in the car, which was filled with smoke and smelled like burnt marijuana.  The trooper saw a significant amount of cigar tobacco and a cigar slicer in the car (cigars are often hollowed out and filled with marijuana).  Upon request, the defendant gave the trooper the marijuana that was in the car and said he had smoked about three hours earlier.  Once of his passengers said he had smoked 20 minutes before being stopped by the trooper.  The trooper asked the defendant to exit the vehicle and perform a series of field sobriety tests.  Two of the tests – the nine-step walk and turn and the one-legged stand – involved balancing tests and in the opinion of the trooper, the defendant failed both.  By virtue of failing the balancing tests, the trooper concluded the defendant was impaired by way of his marijuana ingestion.  He was charged with operating under the influence of drugs.  While his case was pending in Worcester District Court, the defendant filed a motion to prohibit the prosecutor from admitting evidence of his performance on the field sobriety tests.  The district court judge sought guidance from the Supreme Judicial Court, and asked: (1) whether the results of the field sobriety tests are admissible in OUI-Drugs cases; and (2) whether a non-expert witness can offer an opinion that a person is under the influence of drugs.

The Supreme Judicial Court began its analysis by noting there has been an established correlation between the failure of the balancing field sobriety tests and alcohol consumption.  When someone is under the influence of alcohol, it is likely he or she will be unable to successfully complete the 9-step walk and turn test or the one-legged stand test.  However, unlike alcohol, marijuana is not a depressant to the central nervous system.  There is not agreement among scientists as to whether the failure of field sobriety tests is indicative of marijuana ingestion.  Scientific studies have not universally concluded that failed field sobriety tests and marijuana usage are connected.  However, if a person is unable to keep his balance while walking a straight line or holding his foot in the air, that evidence is relevant to the question of whether he is in a physical condition to drive a car.  As a result, the SJC ruled that a police officer cannot offer an opinion that a driver either passed or failed a field sobriety test.  However, the officer can testify about observations he made concerning the driver’s balance while the tests were being administered.

The Court also ruled that a police officer, who has not been certified as a drug recognition expert, cannot offer a lay opinion that a driver is under the influence of marijuana.  While the effects of alcohol are well known by most everyone, the effects of marijuana are not.  There have been no studies establishing that people who are under the influence of marijuana possess specific characteristics (unlike with alcohol, where slurred speech, unsteady gait, and glassy eyes are staples of intoxication).  Accordingly, a cop can tell the jury what the defendant looked like on the evening of the arrest, but it will be up to the jury to determine if the evidence establishes the defendant was under the influence of marijuana.