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Articles Posted in DUI drugs

Narcan: Not Just For Criminal Overdose

As early as the 1960s, the drug, Naloxone, commonly known as Narcan, has been widely used to reverse the effects of opioid overdose. Medical personnel use Narcan to revive patients who have overdosed on opioid-based drugs. In criminal Driving Under the Influence (DUI) cases, prosecutors try to use evidence of the revival by Narcan to support a DUI charge. The attempt to use Narcan as evidence of DUI is problematic for many reasons.

To understand the problems with the introduction of Narcan use as evidence, it is important to understand how Narcan works. A person who overdoses on opioid-containing drugs will suffer from an excess of opioids blocking the opioid receptors in the brain, causing the shut down of the body’s nervous and respiratory systems. Narcan, at least temporarily, takes the place of the opioids and prevents respiratory failure, but should be followed up by other medical intervention. More recently, due to Narcan’s simple administration techniques and minimal side effects, many states have approved Narcan administration by lay people who are close to those regularly using or addicted to opioids. Lay people or medical personnel may use Narcan to save the life of a person who recently overdosed, either intentionally or accidentally, on opioids.

Under Massachusetts OUI Law, the prosecutor does not have to prove that alcohol is the sole cause of the impairment.  I had this issue in a recent trial where the Commonwealth was attempting to allege that my client was impaired through the combined impact of alcohol and marijuana.  

        The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Stathopoulus, 401 Mass. 453 (1988), which held that the Commonwealth is entitled to a jury instruction as follows:  

If you find that the alcohol which the defendant may have ingested alone did not render him under the influence of alcohol, but the mixture of that alcohol with a controlled substance, diminished his ability to operate a motor vehicle safely, you are warranted in finding him guilty.  

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Davis.  The Justice had to determine what is the standard to determine if there is probable cause to arrest a driver for being impaired by marijuana. In the Davis case, the defendant was stopped for speeding, the car smelled of marijuana, the officer said that his speech was delayed and the arresting officer formed the opinion that the defendant was impaired by marijuana.  The oral argument before the SJC revealed the following questions and areas of concern for the Justices.  

Justice Link suggested that the officers did not have much evidence to make that conclusion that the defendant was impaired by marijuana.  The Commonwealth disagreed contending that the officer had more than sufficient evidence to conclude that the driver was impaired.  Davis’ lawyer argued that the officer should have conducted some field tests to perform a better investigation to determine impairment.  Justice Lenk questioned the Commonwealth about how much the smell adds to the analysis because it can be long after consumption.  

On the issue of probable cause, the Justice seems to suggest that if it were an alcohol case there would be enough probable cause to arrest.  Justice Gaziano suggested that the SJC allows field sobriety tests into evidence in Gerhardt because it informs the officers opinion regarding the probable cause to arrest.  He questioned the lawyer for the defendant that if the car smelled like alcohol, we would allow the officer to arrest; in this case it smells like marijuana, so the same inference of impairment he asked if that should be permitted.  The defense lawyer skillfully argued that marijuana is different and the Court cannot tell if the person is impaired.  The studies on marijuana suggest that a driver would drive slower if under the influence of marijuana and not faster as the defendant in this case.

   The Massachusetts Supreme Judicial Court will hear arguments this Friday September 7, 2018 in the case of Commonwealth v. Davis.      The case raises the issue when the police have probable cause to arrest based on a belief that someone is impaired by marijuana.  In this case, the defendant Davis was charged with Carrying a firearm without an FID card and drug possession with the intent to distribute.  He was found not guilty of Firearm offense, which carried an eighteen month mandatory minimum sentence, but convicted of the Drug possession with intent to distribute charges. 

       The Drugs were found during an alleged inventory search of the car.  The officers justified the search of the car based on the probable cause to believe that the defendant was operation under the influence of marijuana.  The issue is whether police have probable cause to arrest based on an odor of marijuana and other indicators that the officer observed. 

In this case, the evidence that the operator was impaired by marijuana was very weak.  The defense on appeal also challenged the issue of whether the inventory search was proper.  I submitted an amicus brief in this case on behalf of the National College of DUI Defense.  I am a member of the College’s amicus committee and have been a member since 2007.  Based on the officer belief that the defendant was under the influence of marijuana, the officer search the car and discover the evidence that was later used to convict the defendant of the drug charge.  

After the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Gerhardt, many wondered how the Commonwealth would prove OUI Marijuana cases in Court.  Charges involving OUI drugs, including marijuana are difficult to prove.  However, these cases are still being prosecuted in the court.

The SJC in Gerhardt did not exclude field sobriety tests, now referred to as assessments from being offered into evidence in Court.  It placed limitations on how this evidence can be presented to the jury and what its ultimate weight should be in assessing whether the Commonwealth has proven the case beyond a reasonable doubt.   OUI marijuana cases will be prosecuted based on the observations of the driving, the field tests, admissions of the person consuming marijuana, the smell of marijuana, evidence of drugs found in the car.

This case was the first case to hold that field sobriety tests are not scientific tests of impairment by marijuana and that a jury should get a cautionary instruction when presented with this evidence.  The Court also held that officers could not testify as lay witnesses that someone was impaired by marijuana. 

The Massachusetts Supreme Court ruled today in Commonwealth v. Thomas Gerhardt that field sobriety tests are admissible for an OUI marijuana, but cautioned that jurors cannot rely on these tests in and of themselves to find someone guilty or impaired by marijuana. The model jury instruction drafted in the opinion addresses the concerns that jurors will assume FST are accurate for marijuana as for alcohol.  The SJC expressly tells jurors that there is no correlation between performance on field sobriety tests and impairment by marijuana.

Additionally, the SJC found that officers cannot testify as to their lay opinion regarding impairment by marijuana as the scientific community has not developed any consenusus on the signs showing impairment by marijuana.

In an article from Chris Villani of the Boston Herald, the SJC was described as splitting the difference.  While that is a fair assessment of the decision,  I think the cautionary jury instruction will greatly reduce the value of the field tests to a jury, so while admissible, those assessments, as the Court refers to them, should have diminished weight in the eyes of the jury.  Further, the exclusion of lay opinion as to impairment leaves the jury without any testimony tying the observations to impairment from marijuana directly from the officer.  That is a significant benefit to the defense and based on the lack of scientific agreement on the signs of marijuana impairment, is a step forward in ensuring a defendant gets as fair trial.  The Gerhardt case was one where DelSignore Law submitted an amicus brief on behalf of the National College of DUI Defense on behalf of the defendant.

Tiger Woods was charged with DUI drugs in Florida.  According to the CNN news report, there was evidence of fresh damage to his car, he was found asleep at the wheel and failed field sobriety tests.  Woods did submit to a breath test and registered a 0.00, revealing no alcohol in his system according to the breath test results.

In Massachusetts, an OUI drugs charge involves proving the following.  That a person operated a motor vehicle, on a public way, while under the influence of a narcotic drug, depressant or stimulant.  The Commonwealth has the proven of proving what particular drug an individual is alleged to be under the influence of.  This is one of the more difficult elements of a DUI drugs charge for the Commonwealth to prove.  Often, if there are no drugs found in the car, no smell such as in an OUI marijuana case, the evidence will be based on an admission or statement of the motorist.

According to multiple media reports, including the Boston Herald, Woods admits to taking several prescription medications, pain killers and Vicodin.  The State will need expert testimony regarding the impact these medications would have on his ability to drive and will have to present evidence of the amount or quantity of the medication in his system.

Back in November of 2016, Massachusetts voters ultimately voiced their opinion and voted for the legalization of recreational marijuana. Supporters of such legalization have argued that the new law would take marijuana out of the ‘black market’ and would be subjected to applicable tax; marijuana would produce tax dollars for the state and would employ hundreds of local citizens. However, as recreational marijuana is a complex and hot topic circulating around Massachusetts, the Senate has declared that the law itself needs to be clarified and refined. Ultimately, this means changes, and supporters of its legalization are not on board with this.

Fox 25 news reported that Senate President Stanley Rosenberg, on addressing the voters who voiced their support for the legalization, mentioned that advocates should been prepared for such changes to happen. As of now, there is a 6-month delay for anyone attempting to open recreational marijuana stores for consumers. However, the legislature has been pondering many other changes, including but not limited to raising the legal age from 21 for possession, purchase and use, an increase on the marijuana tax rate, as well as lowering the amount of plants that can be grown in any given household.

In relation to the push for an increased tax rate, legislators argue that the current proposed law is simply too low and will more than likely not be enough to even cover regulatory costs. As of right now the maximum (and total) tax rate proposed is 12%. Other states where legalized recreational marijuana has made waves has tax rates as high as 37% (Washington) and 29% (Colorado). The hesitancy to allow home growers to have up 12 plants produces fear for the legislature, as they believe the more plants a person is able to grow, the more likely they will sell their products to consumers illegally.

Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.

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A Washington State University professor is currently developing the first portable breathalyzer that tests for marijuana substance consumed by a driver. Washington law enforcement agencies are particularly enthusiastic about the test, as more and more drivers are operating while under the influence of marijuana in one of only two states who have legalized marijuana.

Currently, law enforcement can only test for marijuana consumption through blood tests at a lab. These tests are time consuming, complicated, and expensive. The new marijuana breath test is designed to detect a primary chemical ingredient – THC – in the driver’s breath immediately after the driver is pulled over. A portable breath test for marijuana will enable officers to more accurately identify drivers who operate while under the influence of marijuana, by allowing them to rely on the breathalyzer’s measurements rather the officers’ own observations.

Like most alcohol breathalyzers, marijuana breathalyzer devices will likely be susceptible to error. There are currently several ways for an experienced criminal defense attorney to challenge the results of an alcohol breathalyzer – from the manner in which the test was administered to the significance of the chemical ingredients that a breathalyzer actually detects and measures. These challenges could also be expected in a prosecution relying on a marijuana breathalyzer test result. But still, the invention of a marijuana breathalyzer is likely to lead to substantially tougher prosecution of this type of offense – not only in Colorado and Washington where driving while under the influence of marijuana is explicitly a crime, but in other states as well. USA Today along with several media outlets reported on this story.

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