OUI For Marijuana? 
Written by: Eben Diskin

There are a few misconceptions surrounding OUI (Operating Under the Influence) arrests, and the evidence that is considered relevant and usable in court. Usually when we consider DUI or OUI offenses, we immediately think of Field Sobriety Tests. When it comes to alcohol, most people have a fairly clear idea of what constitutes a failed test. If an officer smells alcohol on your breath, or otherwise suspects you of driving under the influence of alcohol, you might be subjected to balance-related exercises like the one-leg stand or the walk and turn. Demonstrating a clear lack of coordination or balance will often result in a failed test, which can be used as evidence against you in court. For those suspected of driving under the influence of marijuana, however, the relevance of Field Sobriety Tests is more complex.

Because the symptoms of marijuana use vary from person to person, and don’t have the same direct impact on coordination as alcohol, Field Sobriety Tests can be an unreliable indicator of whether a driver is under the influence of marijuana. Field Sobriety Tests can play a hugely important role in OUI cases, especially in terms of influencing the opinion of a judge or jury. The observations of the officer who administered the Field Sobriety Test can be quite powerful evidence, and often tip the scales in favor of guilt or innocence. The validity and admissibility of Field Sobriety Tests for marijuana intoxication has been a contentious issue, but a recent case in the Supreme Judicial Court of Massachusetts has helped shed some light on the question.
In Commonwealth v. Gerhardt, a defendant performed various roadside assessments at the request of a police officer. Taking these assessments into consideration, the court was tasked with determining whether the defendant was under the influence of marijuana while operating the vehicle.

The Case Summary provides a useful overview:

HOLDINGS: [1]-While the scientific community lacked a consensus on the reliability of a field sobriety test (FST) to assess whether a driver is under the influence of marijuana, FSTs were neither a definitive test of impairment nor excluded entirely from consideration by the finder of fact and thus, police officers could not testify to the administration and results of FSTs as they do in operating under the influence of alcohol prosecutions but they could testify to the administration of “roadside assessments”; [2]-A lay witness was not permitted not offer an opinion that another person was “high” on marijuana; [3]-A police officer may testify to observed physical characteristics of the driver such as blood shot eyes, drowsiness, and lack of coordination. The officer is not permitted to offer an opinion that these characteristics mean that the driver is under the influence of marijuana.
The biggest takeaway from the Commonwealth v. Gerhardt case is that there is no scientific agreement on whether field sobriety tests can be used to prove intoxication by marijuana. The court determined that while a police officer may testify to the results of a field sobriety test for driving under the influence of alcohol, they cannot do so for marijuana. The officer may only testify to observations made during the administration of the roadside assessment, as it relates to the driver’s demeanor, appearance, behavior, balance, coordination, mental acuity, and other skills needed for safe vehicular operation. An officer may not, however, assert that a defendant’s performance on a roadside assessment proves that they were driving under the influence of marijuana.

If you have been charged with driving under the influence of marijuana, it’s important to understand what can and cannot be used as evidence against you in court. For experienced representation, contact Criminal Lawyer Kristen Bonavita for a free consultation at 978-376-6746.