The state’s highest court on Tuesday limited which evidence can be used to prosecute drivers suspected of operating under the influence of marijuana, handing a victory to civil rights advocates in a closely watched case.
Under a unanimous ruling by the Supreme Judicial Court, Massachusetts police officers can no longer cite their subjective on-scene observations or sobriety tests to conclude in court testimony that a driver was under the influence of marijuana.In limiting the use of the familiar roadside tests designed to provide an approximate measure of drunkenness — walking in a straight line, standing on one foot, and so on — the court found there is no scientific consensus those tests definitively prove someone is intoxicated by marijuana.
The judges also noted the effects of marijuana on its users are more complex than of alcohol and less obviously correlated to the amount consumed, making it difficult for untrained observers to know whether someone is high.
“Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known,” the court said, “neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.”
Police officers can still arrest drivers they suspect are high and describe in court how the drivers behaved during the roadside tests. For example, an officer could tell a jury a driver was unable to walk in a straight line. But under the ruling, the officer could not describe the task as a “test” or say the driver “failed” it.
Similarly, an officer could tell a jury that a driver smelled strongly of marijuana and seemed confused but could not use such observations to conclude the driver was high
The defendant in the case is Thomas Gerhardt, who was stopped in Millbury in February 2013 by a State Police trooper for allegedly driving with his lights off, according to a statement of facts agreed to by both sides in the case.
The trooper testified that he saw smoke inside the vehicle and smelled marijuana and that Gerhardt acknowledged smoking about a gram of marijuana. Gerhardt was unable to properly do the “walk-and-turn” test, the trooper said, and struggled to stand on one foot.
The case has not yet gone to trial, amid legal wrangling over which evidence can be admitted.
Rebecca Jacobstein, Gerhardt’s attorney, called the ruling a victory over “junk science.”
“The big take-away here is that for the government to introduce something as science, it actually has to be science,” Jacobstein said.
The decision, she argued, does not make it harder for law enforcement to deter stoned driving.
“I look at this more as a protection of people’s right to have only meaningful and relevant evidence used against them,” she said.
A spokesman for Worcester County District Attorney Joseph D. Early Jr., whose office is prosecuting Gerhardt, said the decision “provides much-needed clarity regarding police testimony,” and prosecutors will use the court’s guidance in bringing the case to trial.
Walpole police Chief John Carmichael Jr., a spokesman for the Massachusetts Chiefs of Police Association, doesn’t expect the ruling to significantly change how officers conduct traffic stops.
“At the end of the day, officers are still going to rely on all their observations and the total circumstances of the stop, and base their arrests on probable cause,” Carmichael said. “We don’t think about conviction rates all the time; we think about public safety.”
Beyond standard sobriety tests, Carmichael said, officers carefully watch how a driver acts in general. He added he was relieved those observations will be still heard in court.
“We’re assessing demeanor, attitude, attention span, behavior — everything,” he said.
Carmichael called on the state Legislature to follow Colorado and Washington, two other states where recreational marijuana is legal, in establishing a blood concentration limit for THC, the main psychoactive ingredient in cannabis.
“Our law doesn’t have the teeth it needs,” he said.
Both states use a threshold of 5 nanograms of THC per milliliter of blood; in Washington any driver at or above that level is automatically considered impaired, while in Colorado those drivers can dispute their condition in court. However, some experts have questioned the validity of any law that specifies a particular blood concentration for impairment.
Jay Winsten, director of Harvard University’s Center for Health Communication and a pioneer of OUI awareness campaigns, praised the court for taking a “middle ground” approach.
“I think it was a wise, smart, and careful decision,” Winsten said. “It keeps field sobriety tests in the picture without allowing police officers to claim they constitute unequivocal evidence of marijuana intoxication, which would be suggesting something that goes beyond what’s currently known.”
“In the end,” he added, “it’s up to the common sense of jurors.”
In Colorado, it’s legal to smell like marijuana while driving and to have paraphernalia in the car. It’s even legal to have marijuana in the car as long as the weed’s in a sealed container away from the driver.
But it’s illegal to drive impaired from cannabis, just like it’s illegal to drive drunk. And the number of deaths due to car crashes involving marijuana is rising, says Sam Cole, a spokesperson for the Colorado Department of Transportation.
“It’s still small compared to all the other reasons we’re seeing for fatalities out there,” he says. In 2016, 51 people died in crashes that involved drivers whose blood tested contained a certain level of active THC. That’s 8 percent of all crash fatalities in 2016. “The data indicates it’s a growing problem.” And CDOT has allocated almost a million dollars, all from marijuana tax revenue, to educate the public about the danger of driving while high.
And yet, confirming that someone has actually been driving while impaired by marijuana is remarkably tricky. But that doesn’t stop Colorado lawyer Chris Halsor from teaching law enforcement officers to recognize the signs of marijuana impairment.
“It’s a brave new world,” he says to a room full of Colorado State Patrol officers. There are now more dispensaries in the state than there are Starbucks coffee shops, he tells the students as they learn how to correctly perform roadside sobriety tests.
To complicate matters, as CDOT’s Sam Cole notes, “the only roadside device that’s allowed to be used, by statute, is an alcohol device.” It’s largely up to officers to determine on the side of the road if a person is impaired from pot.
As part of the training, Halsor assigned the officers to go shopping at local dispensaries, so they could get a sense of what pot products are out there. Then, a group of volunteers arrived, introduced themselves to the officers, and promptly proceeded to an RV parked in the hotel parking lot where, as payment for their participation, they could legally consume as much pot as they wanted from a plastic tub of edibles, vape pens, joints and other pot products.
When the volunteers returned to the hotel, the officers tested them on a number of measures meant to distinguish the impaired from the sober.
How many quarters are in $1.75? A person who’s impaired might take a while to figure it out.
Walk nine paces, touching toe to heel, along a line, then return. Someone who’s impaired might forget the instructions or have trouble balancing.
Follow a pen with your eyes as an officer moves it around your face. An impaired person’s eyes often show something called “horizontal gaze nystagmus,” in which the eyes jerk when they move to the side. When the pen moves toward the nose, an impaired person’s eyes often show “lack of convergence” — their eyes can’t cross in sync, drifting or shifting around rather than converging on the tip of the nose.
The usefulness of many of these tests are backed up by scientific evidence, but the methods don’t always apply to everyone equally. And they are all subject to — even dependent upon — an officer’s observations, biases, and interpretation.
Indeed, one of the volunteer’s results were clear-cut. “She’d be going to jail,” said Rich Armstrong, an officer with Colorado State Patrol, and the others all agreed. But the other three were not.
Officers disagreed about the second woman, who did well on some parts of the tests and poorly on others. “It was a tough one,” said Trooper Tom Davis, also with CSP.
“Yeah, this is one of those subjective areas,” said Rich Armstrong.
The officers determined that, in real life, they would not have arrested the two male volunteers for impairment, even though the male volunteers had consumed a comparable amount of cannabis to the female volunteers.
Enter the scientists. At the Boulder branch of the National Institute of Standards and Technology, nestled among buildings that house atomic clocks and giant lasers, there is a group of researchers dedicated to forensic science. And right now, a few them are all about pot. Measuring it precisely, of course.
Chemical engineer Tara Lovestead is working hard to lay the groundwork for a pot breathalyzer. As federal employees, she and her colleagues can’t actually develop commercial breath tests, but they’re doing the nitty gritty basic research like measuring the fundamental physical properties of THC. The findings could help companies and researchers create reliable devices that correlate chemicals in a person’s breath to their level of impairment.
From Lovestead’s point of view, the current system for determining marijuana impairment relies too much on an officer’s interpretation. “It’s too subjective. I’m not comfortable with that. The public, I don’t think, is comfortable with that,” she says.
At least two companies are working on devices, including Cannabix Technologies and Hound Labs, but they’re still in the testing phase. And though officers in California are already using a marijuana detection device called the Drager DrugTest 5000, it does not detect a person’s level of impairment — only the presence of THC in their saliva.
Often, when officers deem an erratic or dangerous driver to be impaired from marijuana, they bring the driver in for a blood test. According to state law, if a milliliter of the person’s blood contains more than 5 nanograms of active THC, the person can be “presumed” to be impaired. But researchers have shown that the 5-nanogram limit can be misleading, possibly incriminating someone who last smoked days before driving, and possibly missing someone who just consumed cannabis.
“It’s a very challenging problem and a lot of work needs to be done,” says Lovestead, whose research group previously worked on technology that could sample tiny amounts of chemicals in the air to detect things like explosives or buried bodies.
While scientists and companies chip away at developing marijuana breath tests, Sam Cole at CDOT is exploring another big question: what’s behind Colorado’s rise in crash fatalities involving marijuana.
“The 64 million dollar question is: Is it because of legalization?” he says. Data on crash fatalities and marijuana is spotty before 2013. So the answer, Cole says, is unclear.
Nick Nolte has been taking the date rape drug GHB for “four years”.
The 76-year-old actor – who starred in ’48 Hours’ alongside Eddie Murphy – was arrested in 2002 for driving under the influence of alcohol and the drug, but he’s now admitted to being a regular user of the narcotic.
The actor said: “I’ve been taking GHB for four years and I’ve never been raped.
Despite checking into rehab, the actor continued drinking on and off until he stopped for good.
Speaking to the Daily Telegraph newspaper, he explained: “Now I can have drink and stop, but I used to fill the gaps between adrenaline rushes with booze and drugs.”
While starring in acclaimed director Ang Lee’s ‘Hulk’, the actor was unable to remember a line for the first 10 days.
Recalling the surreal experience, Nick said: “I started so high that I couldn’t remember a line for the first 10 days.
“And Ang came up and said ‘do you think it’s time we string two words together?’ And I said ‘just about’.”
Nick – who has a 31-year-old son called Brawley with his third wife Rebecca Linger and a nine-year-old daughter by his current wife Clytie Lane – also confessed being famous can make people feel lonely.
He shared: “Fame is a parenthesis you live in and when you die they close those parentheses.
“Then you get a real definition of who you were. It’s living under the spotlight. Your mistakes are going to be seen and then they’ll be glorified in not a positive way.
“It’s a lonelier kind of life than I think anonymity is. It also teaches you how much privacy is valued and how much it is really what the citizens of the world would prefer to have rather than constantly being scrutinised by cameras and questions.”
MERRITT ISLAND, Fla. (WOFL FOX 35) – Two people are recovering after a vehicle slammed into a rehab center in Merritt Island.The crash happened around 9:30 a.m. at the Island Health and Rehabilitation Center on Alma Avenue. Florida Highway Patrol says the driver passed out while driving, crashed through a fence, drove through a grassy area, and then crashed into the rehab center.The vehicle crashed through the back of the building into a room where someone was sleeping. In the pictures above you can see the vehicle is fully inside the rehab center.Officials tell FOX 35 there were approximately 120 patients inside the building at the time of the crash.Brevard County Fire Rescue transported two patients, the driver and person sleeping, with only minor injuries.Troopers suspected that the driver was impaired by drugs. A blood sample was taken and charges are pending until those results are confirmed, according to FHP.The crash remains under investigation.
FRAMINGHAM – A New York man was originally only supposed to sleep in his friend’s Cadillac.But, authorities said Emanuel Ramsey, 23, took the car for a joyride on Thursday, driving around for more than an hour on the rim after shredding the tire before police finally arrested him on Beacon Street at 8:30 a.m.Police learned of the Cadillac at 6:45 a.m., when a caller reported a car driving erratically on Concord Street near Rte. 9, police spokeswoman Lt. Patricia Grigas said.The Cadillac was gone by the time police arrived.About a half hour later, an officer on a detail saw the Cadillac driving toward him on Franklin Street near Mount Wayte Avenue.“The officer tried to stop him, but (the driver) kept going,” Grigas said.Around 8:15 a.m., officers found the car in a parking lot on Beacon Street and spoke to Ramsey.“Officers realized he was impaired, significantly impaired,” said Grigas. “He admitted to smoking marijuana.”Police contacted the owner of the car. She said she was friends with Ramsey. Ramsey asked her for a place to stay and she let him sleep in her car while she worked at a gas station, Grigas said. Ramsey did not have permission to drive the car.Police arrested Ramsey, of 570 Fox St., The Bronx, and charged him with driving under the influence of drugs, using a vehicle without authority, driving to endanger, failing to stop for police and driving with a suspended license.Ramsey is scheduled to be arraigned in Framingham District Court on Friday.
A man who struck a telephone pole in the area of Route 15 and Wilson Drive on Friday was arrested and charged with driving under the influence of a narcotic and other possession-related offenses, police reports said.At approximately 7:15 p.m., Sparta Police responded to a report of a minivan striking a utility pole.The driver, Tomas Molina, 31, of Bloomfield, stated that he fell asleep at the wheel.Police officers at the scene, Cpl. Frank Schomp and Cpl. Josepgh Antonello, noted that Molina’s pupil’s were constricted, an indication of narcotic use.When questioned, Molina admitted that he had snorted a bag of heroin while driving.Further investigation led to Molina’s arrest for driving under the influence of a narcotic and having narcotics and drug paraphernalia in his vehicle. Molina was transported to Sparta Police headquarters for processing.Sgt. Joseph Sanfillipo, a certified drug recognition expert of the Ogdensburg Police Department, responded to Sparta Police headquarters to conduct testing relating to narcotics affecting Molina’s ability to safely operate a vehicle. After testing concluded, Molina was charged with possession of heroin, possession of marijuana, possession of drug-related paraphernalia, being under the influence of a narcotic, driving while intoxicated, restless driving, careless driving, failure to maintain lane and the possession of a controlled dangerous substance in a motor vehicle.Molina was advised of a mandatory court appearance and was released to a responsible adult.
A Rome man has been jailed after being stopped by Rome police around 10 p.m. Saturday night.According to Floyd County Jail reports:Remy Mervyn Johnson, 26, of 24 Woodcreek Way was arrested by Rome police Saturday night at the intersection of U.S. 411 and Turner McCall Boulevard.Johnson was charged with felony possession of a Schedule II controlled substance, suspected OxyContin and a series of misdemeanors for having undisclosed pills not in an original container, two counts of seat belt violation regarding restraints for children, failing to maintain his lane, driving under the influence of drugs, reckless driving, and three counts of endangering a child by DUI. Three young children were in the car.
A committee convened by the Maine Department of Public Safety says it doesn’t believe that Maine needs to set a limit for determining whether a motorist is impaired by marijuana. The recommendation is likely to stir debate among law enforcement officials and legislators as implementation of the voter-approved recreational marijuana law plods forward.Committee chair Scot Maddox said the state need not alter its operating under the influence law or create new blood-level limits for THC, the psychoactive component in marijuana. Instead, he said lawmakers should provide additional funding to train police officers, prosecutors and even judges to recognize marijuana impairment and its dangers while driving. He said there should also be a robust public education campaign.Sen. Mark Dion, a Portland Democrat and former police officer, said he’s surprised by the recommendation, as blood level tests for alcohol play a key role in OUI arrests and convictions.“If you blow a 1.5 on the breath test, it kind of validates the officer’s conclusions that you’re impaired, and there’s a lot of weight placed on that breath test. If someone is arrested for cannabis influence impairment, all we have is the confirmation that cannabis is present. And it doesn’t necessarily validate the observations of the officer,” he said.But Maddox, speaking before the Legislature’s Marijuana Legalization Implementation Committee, said Maine’s current impairment law is sufficient — at least for now.“The basis of under the influence is irrelevant as far as the law is concerned. Whether you’re impaired because you’re drinking alcohol or whether you’re impaired because you’re taking prescription medications, or you’re impaired because you’re smoking marijuana, the difference is none, as far as the law is concerned,” Maddox said.He said that officers trained to identify marijuana impairment can still make an arrest and use a blood test to bolster their case for a conviction.Last year a bill that would have set a THC limit failed in the Legislature because there was disagreement over what would be an appropriate limit to determine impairment.The issue has dogged the more than two dozen states that have legalized marijuana for recreational or medicinal purposes — or in Maine’s case, both. According to the National Conference of State Legislatures, nearly 20 states have set limits on THC in the bloodstream while operating a vehicle.A number of studies have found that marijuana degrades a person’s ability to drive, but research on whether it causes accidents has been mixed. The same goes for studies determining the appropriate level of THC to determine driving impairment, in part because THC has been found to affect people differently.
When it comes to driving under the influence, the rules for Alcohol-related DUI’s and marijuana DUI’s are far more stringent for drivers with Commercial Driver’s Licenses (CDL) than drivers using a standard license.The legal blood alcohol limit established for drivers over 21 is 0.08. With a CDL, that legal limit is slashed in half to 0.04. The stricter guidelines are the result of several variables including the massive size/weight of most commercial vehicles as well as the presence of hazardous materials.The marijuana DUI laws are also less lenient. Any CDL driver found with even the smallest trace of THC in his/her system are looking at an automatic DUI charge.Find out more about CDL DUI law by watching the video above. Be sure to check out my older blog posts for informative videos about marijuana DUI law, and Busting the Legal Limit Myth.
Scientists Still Seek A Reliable DUI Test For MarijuanaListen· 5:245:24QueueDownloadEmbedTranscriptFacebookTwitterGoogle+EmailJuly 30, 20177:14 AM ETHeard on All Things ConsideredRAE ELLEN BICHELLAlthough consuming cannabis is legal in Colorado and several other states, driving while under the influence of the drug is not.Nick Pedersen/Getty ImagesThis spring, 16 state patrol officers from Colorado and Wyoming took a couple days off their usual work schedule to do something special. They assembled in a hotel conference room in Denver. As instructed, they wore street clothes for their first assignment: going shopping at nearby marijuana dispensaries.”It’s a brave new world,” said instructor Chris Halsor, referring to the years since Colorado legalized recreational marijuana.There are now more marijuana dispensaries in Colorado than there are Starbucks shops, said Halsor, a Denver lawyer and former prosecutor. And though consuming cannabis is legal across the state, driving under its influence is not.The cops in that conference room, with their buzz cuts and Mountain Dew, are all part of the force charged with keeping the roads safe. But first, they needed a formal pot education — to learn how to identify various marijuana products and paraphernalia when they pull over a driver they suspect is under the influence.Here’s the rub: Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired.Yessenia Hinojos, a budtender at a Denver cannabis dispensary called The Green Solution, describes marijuana strains to A.J. Tarantino (left) and Philip Gurley. Both men are officers with Colorado State Patrol.Rae Ellen Bichell/NPRA number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now.”We like to know the human error and the limitations of the human opinion,” said Tara Lovestead, a chemical engineer at the National Institute of Standards and Technology in Boulder, Colo., who is working on setting standards for what a marijuana detection test might require.It’s actually really hard for Lovestead to do this kind of research because she works in a federal lab; federally, cannabis is considered a Schedule 1 substance, “a drug with no currently accepted medical use and a high potential for abuse.” So even though Lovestead is in Colorado, getting hold of a sample for research purposes is just as hard as getting hold of heroin.”We cannot use the stuff down the street,” she said.Aside from being a bureaucratic mess, coming up with a standardized blood or breath test is also a really tricky chemistry problem because of the properties of the main psychoactive chemical in cannabis: delta-9-tetrahydrocannabinol, or THC.In states like Colorado, there is a THC blood test that law enforcement can use to show “presumed” impairment. If a person has more than 5 nanograms of delta-9-THC per milliliter of blood, a court or jury can infer that they are impaired, according to Colorado law (this is called “permissible inference” in legalese).SHOTS – HEALTH NEWSHigh On The Highway: Scientists Try To Build A Marijuana Breath TestBut Lovestead and others maintain that, scientifically speaking, that cutoff doesn’t actually mean anything.”We just don’t know whether or not that means they’re still intoxicated, or impaired or not,” she said. “There’s no quantitative measure that could stand up in a court of law.”Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.”And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days,” says Marilyn Huestis, a toxicologist with the University of Maryland S