Driving Under the Influence of Marijuana and OUI Drugs
Attorney DelSignore discusses an OUI Marijuana Charge in Massachusetts and why these cases are winnable in court
If a police officer stops your car and smells marijuana, there is a good chance the officer may arrest you for driving under the influence of marijuana and charge you with OUI drugs. There are some new defenses to a charge of OUI drugs involving marijuana based on the recent changes to the law involving the possession of marijuana.
An OUI Marijuana charge is a very winnable case, because typically the Commonwealth will have no evidence as to how much you smoked, when you smoked marijuana and will lack an expert to say what impact any marijuana intake would have on your ability to drive.
The legislature decriminalized a possession of under an ounce of marijuana; this change in the law impacts an officer’s ability to make a motor vehicle stop based on a suspicion of possession of marijuana, issue an exit order based on the smell of marijuana and conduct a search of the car based on a belief that you possessed marijuana.
As an OUI Lawyer, we can request a hearing challenging the legal basis for the officer to order you out of the car and request that you perform field sobriety tests. If this motion is successful, the case would likely be dismissed.
There are two main ways to attack an OUI marijuana charge.
- Challenging the Stop;
- Contesting the officer opinion that you were under the influence of marijuana at trial.
The first thing you should do is understand your legal defenses. An OUI lawyer may be able to make Constitutional challenges in your case. An officer who makes a stop based on a traffic infraction and smells an odor of marijuana may not be permitted to immediately order you from the car. One key issue is whether the officer claims the odor was an odor or freshly burnt marijuana. If the officer claims that it was unburnt marijuana, the officer may not be able to issue an exit order based on recent case law from the Massachusetts Supreme Judicial Court.
If the officer claims that the odor is of freshly burnt marijuana, this raises a closer question but still may make the exit order unlawful.
The officer would likely need credible evidence of observations to substantiate a suspicion that you were operating under the influence of marijuana. At a motion hearing, your attorney will be permitted to cross examine the officer as to the basis of these observations.
Even if the motion is unsuccessful, it will allow you to hear the evidence and better prepare for trial. A charge of OUI marijuana is difficult for the government to prove since there is often no blood work showing the level of marijuana in your system. While the officer likely gave you field sobriety tests, these tests were designed for alcohol and there is no data or evidence showing that they also relate to impairment by marijuana.
Since there is no breath test yet for marijuana, your license would not be suspended after an OUI drugs charge, unless the officer filed an immediate threat suspension with the RMV. If that occurs, your license is suspended until a suspension appeal to the RMV. To learn about how to challenge an immediate threat suspension, you can read about it here.
IF YOUR LICENSE WAS SUSPENDED, SEE THE IMMEDIATE THREAT PAGE Immediate Threat License Suspension in Massachusetts: How do I appeal the suspension?
1. Call us to set up a free, no-obligation consultation to discuss a Massachusetts OUI drygs charge. You can call Attorney Delsignore directly at 781-686-5924.
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