Massachusetts’ highest court is set to make a historic decision that will affect the enforcement of marijuana-related offenses across the state.
In The Commonwealth v. Thomas J. Gerhardt, the Massachusetts Supreme Court is called upon to address an issue of first impression – how to accurately measure the amount of marijuana consumption at which a person’s ability to drive safely is impaired.
Since the recreational use of marijuana was legalized in Massachusetts, lower courts have increasingly found themselves searching for guidance in DUI cases involving the use of marijuana.
The Gerhardt decision has the potential to set the standard for DUI convictions in the future, and may even affect the trajectory of scientific testing into the mechanism by which marijuana affects the brain and nervous system.
Although there has been a definite trend toward acceptance of marijuana use nationwide, with many states legalizing it both medicinally and recreationally, the scientific understanding of exactly how marijuana affects a person’s ability to engage in physical activities is still in its infancy.
However, in the face of the uncertainty brought about by changing laws governing the possession and consumption of marijuana, the prosecution is pushing for a bright line test to determine at what point the use of marijuana becomes dangerous to others. When driving a vehicle is involved, this can become a life or death question.
Unlike the simple process of testing blood alcohol content, there are as of yet no easy and reliable roadside methods for measuring how much marijuana has been consumed or ingested by a defendant accused of driving under the influence.
In addition, there have not yet been any conclusive studies linking the consumption of marijuana to impaired driving ability, as is the case with alcohol consumption. Gerhardt’s attorney, Rebecca Jacobstein, argues that until the science of marijuana’s effect is better understood, the results of roadside sobriety tests alone cannot be used to support an DUI conviction.
The Millbury state trooper who initially pulled Gerhardt over asked him to complete a series of roadside sobriety tests after he smelled the odor of marijuana in the car, which has been legal for recreational use in Massachusetts since late last year. Gerhardt was only able to complete two out of the four tests, successfully reciting a portion of the alphabet and counting backwards, but failing the physical “walk-a-straight-line” and balancing tests.
Now, the state Supreme Court must determine whether, without some additional chemical evidence, (like a positive breathalyzer test), Gerhardt’s inability to complete two of the field sobriety checks is enough. Does a person’s inability to stand on one leg, or walk a straight line for a specified number of steps, determine he that he was under the influence of a substance to a degree at which he was unable to drive safely?
If the court agrees with Gerhardt and determines that some scientific, objective evidence is required before a defendant can be convicted of a serious driving under the influence offense, the question then becomes: at what point does a person become “impaired?” The variety of ways one can consume THC complicates matters, as does the fact that different strains of marijuana can produce different physical effects.
Defense attorney Larry Kohn commented, “As more states continue legalize the use of marijuana, it is clear that without a reliable means of measuring an individual’s marijuana consumption, this issue is sure to arise in courtrooms across the nation.”
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