Operating under the influence of Marijuana

Operating under the influence of marijuana… The recent legalization of marijuana has had a significant impact on the law as it pertains to these cases. When analyzing a case involving impairment due to drugs, specifically marijuana, first you would address the legal defenses, then the factual defenses. In any case there are both legal and factual defenses. In short – legal defenses ask the question of whether the actions of the police violated any of your constitutional rights. Factual defenses reach the crux of the issue – were you impaired when you were operating your vehicle.

There are several cases that address legal defenses – questions regarding the scope of the police power.
Were the police are permitted to make the initial stop and whether after confirmation of your license and registration you should be permitted to move upon your way?

Were the police permitted in asking you to exit your car?

Were the police merited in requesting that you perform field sobriety tests? Did you consent to these assessments?

Did the police exceed the scope of their permission or determine probable cause existed for a search when it was lacking?

While the existence of marijuana it not per se illegal, the implications of using marijuana may implicate impairment and thus further police action. The police can determine – based upon their observations – that you likely used marijuana or another drug and that your ability to operate a motor vehicle is impaired by your use of marijuana or other drugs. While the odor of marijuana is insufficient to order you out of the car, the existence of confusion, red/glassy/bloodshot eyes, speech impairment and motor vehicle infractions can lead to a determination that the operator is impaired on a probable cause basis and he/she can be arrested. Recently, the Supreme Judicial Court in Massachusetts addressed the issue of the subsequent search of a motor vehicle based upon the suspected impaired driving due to marijuana consumption. In that case (Comm. V. Davis, 481 Mass. 210, 2019), the court determined that the odor of burnt and fresh marijuana and other signs of impairment on the part of the motor vehicle operator gave the police the authority to arrest the defendant and subsequently search the defendant’s glove compartment. While a Massachusetts jury later acquitted the defendant for operating under the influence of marijuana upon a reasonable suspicion basis, the police merely needed to show a probable cause standard in order to make the initial arrest and subsequent search – a much lower standard in our legal systems. Thus, despite the later acquittal, any items located within the vehicle were located legally.

Finally, after analyzing a case through the lens of a legal defense, the next question is whether there are any factual defenses. In order to prove the case of operating under the influence of marijuana, the Commonwealth must show that the defendant operated a motor vehicle, on a public way and that the defendant’s use of marijuana impaired his/her ability to operate the vehicle safely. After the decision in Commonwealth v. Gerhardt, 477 Mass. 775 (2017) it has become increasingly difficult for the Commonwealth to prove the case for impairment. In Gerhardt, the court prohibited the police from offering an opinion as to impairment based upon the defendant’s performance on field sobriety tests. The court opined that these “tests” can not be called tests as they relate to marijuana because there is no scientific basis for that determination. Furthermore, if the only basis for a determination of impairment is the defendant’s performance on the field sobriety tests, then the Commonwealth has not met their burden. All in all, the decision in Gerhardt has made it increasingly difficult for the Commonwealth to prove impairment in this context.

If you are being charged with Operating under the influence of marijuana or other drug, please contact experienced Criminal Trial Attorney Kristen Bonavita for a free consultation. The Law Office of Kristen Farrell Bonavita can be reached at 978-376-6746.