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.