The Massachusetts Appeals Court recently upheld the conviction of a man for operating under the influence of marijuana. The man was stopped at an “OUI roadblock” (also called a “sobriety checkpoint”) being conducted by the state police in Worcester. The police testified that there was a strong odor of freshly burnt marijuana when the driver rolled down his window, that the driver’s eyes were red and that he admitted to recently smoking marijuana. The police asked if he had any marijuana in the car with them. The driver pointed to a bag of marijuana in the car.  The driver was asked to exit the car for “roadside assessments.” (This is the new term for field sobriety tests.)  The trooper testified that the driver appeared lethargic and laughed as he got out of the car, and continued laughing as he attempted the roadside assessments. According to the trooper, at one point, the driver laughed and stated that he was “too high for this type of situation.” There was testimony that the driver did not perform the roadside assessments satisfactorily.

The trial judge found the driver guilty of OUI marijuana, stating that he based his decision on the strong odor of burnt marijuana in the car, the bag of marijuana seized from the car, the defendant’s statements that he had recently smoked marijuana, and his statement that he was “too high” to follow the trooper’s instructions about the roadside assessments. The trial judge claimed that he did not rely on the trooper’s testimony regarding the driver’s performance on the roadside assessments. 

The Appeals Court went over the law regarding OUI marijuana, stating that the Commonwealth is required to prove beyond a reasonable doubt that the person operated the car under the influence of marijuana, an influence that “resulted in the ‘impairment, to any degree, of an individual’s ability to safely perform the activity in question.”  A person’s performance on roadside assessments is admissible at trial “to the extent that [the assessments] are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle.” However, the law is that police officers cannot testify to “whether the performance indicated impairment” or “offer an opinion as to whether a driver was under the influence of marijuana.” In addition, roadside assessments alone are not enough to support a conviction. 

The Appeals Court concluded that the trial judge had properly followed the law in finding the driver guilty of OUI marijuana.  Regardless of the roadside assessments, the presence and odor of marijuana in the car, the driver’s admission that he had recently smoked marijuana and was “too high for this type of situation” was enough evidence to find him guilty

Comment

The first noticeable thing about this case is that there was absolutely no bad driving. The man was stopped at a roadblock. There was no evidence of bad driving before he was stopped or while being processed through the roadblock.  What got him for openers was the odor of burnt marijuana, his admission that he had smoked marijuana and a bag of marijuana in the car. Add to that the trooper’s testimony that he was laughing during the roadside assessments and said he was “too high” and you get found guilty. There was no evidence of how much marijuana was in his system. There was no blood test, and even if there was, there is no legal standard for how much is too much marijuana. It is hard to believe that the court ignored how the driver did on the roadside assessments. In the absence of any bad driving, what evidence was there that the driver was impaired by marijuana? Sure, the laughing was inappropriate. But what does that have to do with your ability to drive safely?

The case is Commonwealth v. Smith, (Mass. App. Ct. Jun. 5, 2019).