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Defenses to an OUI Drugs Arrest in light of recent changes to the law regarding possession of marijuana


Police officers in Massachusetts and in particular State police officers have increased the number of arrests for OUI drugs, including marijuana. Massachusetts law prohibits a person from driving under the influence of marijuana, but it is difficult for the Commonwealth to prove this in Court. Recent case law, also may provide further defenses for those charged based on a violation of their Article 12 rights under the Massachusetts Constitution. 

Commonwealth v. Daniel

In Commonwealth v. Daniel, the defendant was pulled over for a headlight violation. When the officer approached the car, he smelled freshly burnt marijuana. He asked the occupants if they have marijuana and they produced two bags. He then ordered them from the vehicle. The officer eventually searched the car and found a handgun.

The Court found that because the possession of one ounce or less of marijuana was lessened from criminal offense to a civil infraction, the search of the car was improper.  This change in Massachusetts law that was enacted in 2008 has limited the rights of police officers to make searches in cases based on a suspicion arising from use of marijuana.

The Court reasoned that because a clerk magistrate could not issue a search warrant for a civil infraction that an officer could not conduct a warrantless search.   When an officer searches a car without a search warrant, the Commonwealth must prove that there is probable cause. Since the law only authorized a fine for possession of less than an ounce of marijuana, the officer would have needed reasonable suspicion for possession of a criminal amount to justify a search of the car.  Following the Daniels case, other Court decision would further outline the ability of police officers to make searches.

Commonwealth v. Overmyer

Burnt and unburnt marijuana

The Court in Commonwealth v. Overmyer, 469 Mass. 16 (2014), distinguished between burnt and unburnt marijuana in defining an officer ability to search a car without a warrant.  This is a case regarding a man who was approached by officers after rear-ending a mini-van. The officers had recognized a smell of unburnt marijuana coming from his car, and asked Overmyer to present the marijuana to them. After doing so, the officers determined from past experience that, due to the strong odor, there must be more marijuana in the vehicle. Eventually, Overmyer admitted to this, which is when the officers arrested him.

Previously, the Court dealt with the smell of burnt marijuana. This case brings about the new question of what officers should do when they smell burnt marijuana. Although the officers noted that the bag that Overmyer first presented to them was rather large, the actual weight of the bag could not be determined. After Overmyer’s admission to having more marijuana in the car, the officers searched the car and found a backpack that contained two large freezer bags with small, individual bags inside of them. Overmyer was charged with possession and intent to distribute marijuana, along with having this substance in a school zone.

It was ruled that the officers were not justified in searching the defendant’s vehicle after he had handed over the initial bag of marijuana. The Court ruled that the odor of unburnt marijuana, alone, did not portray probable cause, warranting the search of Overmyer’s vehicle. After he had given the officers the first bag of marijuana, there was no reason for the officers to believe that there was more marijuana in the vehicle, regardless of what prior experience has taught them. It was also noted that the officers had not undergone any sort of training that would have allowed them to be able to identify how much marijuana was present just based on observation. This case is significant because it means that the odor of unburnt marijuana does not warrant a search.

Commonwealth v. Rodriguez

Does the smell of marijuana alone justify an Exit Order

The most recent case on this question is the case of Commonwealth v. Rodriguez, decided on September 22, 2015.  In this case, the Court addressed whether the smell of burnt marijuana alone would justify an exit order.

In this case, a man was followed by an officer because an officer recognized his car as belonging to someone he once pulled over for a heroin offense. After following the car, the officer recognized a smell of marijuana coming from the car, prompting him to pull Rodriguez over. This lead to the officer eventually searching the car and finding Percocet pills, arresting the man and charging him with possession and intent to distribute a class B substance.

The Court had found that the smell of burnt marijuana does not necessarily mean that an individual had been smoking it relatively recently. This smell could mean that an individual was around other people who had been smoking marijuana, thus getting the smoke on their clothes, causing them to smell like the drug. Thus, it was found that the smell of burnt marijuana may produce a reasonable suspicion, but not a probable cause, that an individual is committing the civil offense of having a small quantity of the drug.

The Court notes that sometimes, when an officer pulls over a vehicle, an arrest may be made for an issue completely unrelated to the reason that the officer pulled the individual over. Because the officer in this case did not witness Rodriguez smoking a marijuana cigar, instead pulled him over based on a smell of marijuana, it was found to be improper. There could have been a reason other than the fact that Rodriguez’s vehicle was omitting the smell of burnt marijuana, aside from him using the drug.

How this case may impact defenses in OUI Marijuana arrests 

These cases may impact the ability of a police officer to order a motorist from their car when the officer smells marijuana. In many cases where the officer smells, marijuana, the officer will then charge the driver with driving under the influence of marijuana. Field sobriety tests such as a one leg stand and walk and turn were designed to detect someone being under the influence of alcohol. There are no similar tests for driving under the influence of alcohol. These cases regarding search of seizure could provide additional defenses for those charged with driving under the influence of marijuana or OUI drugs.

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