Pubdate: Mon, 08 Sep 2014 Source: Worcester Telegram & Gazette (MA) Copyright: 2014 Worcester Telegram & Gazette Contact: http://www.telegram.com/ Details: http://www.mapinc.org/media/509 Author: Brian Lee POLICE FEAR INCREASE IN DUI-MARIJUANA WITH LIBERALIZATION VIOLATION 'EXTREMELY HARD TO PROVE' The local law-enforcement community says it is bracing for additional DUI-marijuana cases, which are hard to prove. At issue is what they say is the potential for greater access to pot in Massachusetts because of this year's introduction of medical marijuana facilities, the 2009 decriminalization of an ounce or less of street-level marijuana, and a possible statewide ballot question to legalize it outright. That there is no program or training for law enforcement to consistently detect marijuana use adds to the potential problem, officials said. Driving under the influence of marijuana, said A. Wayne Sampson, executive director of the Grafton-based Massachusetts Chiefs of Police Association, "is extremely hard to prove, unless the officer observes some type of egregious operation, and is able to either detect (marijuana) through odor or other visible evidence." The former Shrewsbury police chief continued: "We're going to have a great difficulty in proving these cases, and we expect it to get much worse as time goes on, with the introduction of the other things," namely medical marijuana and the ballot initiative to legalize pot, which Mr. Sampson said he suspects will triumph. Twenty-one states and the District of Columbia have laws legalizing marijuana in some form. Colorado and Washington state have legalized marijuana for recreational use; other states permit medical marijuana. The Marijuana Policy Project, a Washington, D.C.-based advocacy group behind the Colorado legalization campaign, has opened a ballot committee in Massachusetts for a marijuana legalization campaign in 2016. Walpole Deputy Police Chief John F. Carmichael Jr., authorized to speak by the police association on the matter, explained the difficulty of prosecuting such cases in Massachusetts. When a person is issued a driver's license, that privilege requires submitting to a breath test and blood comparison if arrested for drunken driving. If the driver refuses the test, the privilege to drive may be suspended for a length of time, up to life. The commonwealth has a law indicating that there is a presumption that the driver is indeed impaired if a blood-alcohol ratio is .08 or above. But for drug cases, there are only a few trained police officers in Massachusetts, called drug-recognition experts. Many small departments lack one, Deputy Chief Carmichael said. The recognition experts are trained to view a variety of tests and medical traits associated with drug use and impairment. "The problem is that these tests do not have a 'per se' amount to determine what impairment actually is, and there is no implied consent rule for drugs, so there is no penalty for refusing the test," the deputy chief said. In addition, Massachusetts officers are primarily focused on standard field sobriety testing for alcohol, and there is no standardized testing for driving under the influence of drugs, he said. Typically, officers do the same tests for DUI alcohol, he said, which is not an effective method to demonstrate impairment since there are different responses to certain tests depending on the particular substance. Marijuana-advocacy groups have argued that questions remain regarding the degree to which cannabis intoxication actually impairs driving performance. According to a 2011 paper by the National Organization for the Reform of Marijuana Laws, acute cannabis intoxication after inhalation has been shown to mildly impair psychomotor skills, but the impairment is seldom severe or long-lasting. The Marijuana Policy Project said blood testing appears to be the only reliable way to determine the level of THC in the body, because urine tests cannot show that a person has recently used marijuana. THC, or tetrahydrocannabinol, is the main mind-altering ingredient in marijuana. The MPP adds that most credible scientists working on the issue acknowledge the difficulty identifying THC impairment with a number. Meanwhile, Worcester District Attorney Joseph D. Early Jr. said his biggest fear is that kids are going to think it's OK to smoke pot because of the growing leniency of marijuana laws. "We see so much carnage on the roads now, that you basically can get kids, with their reaction times slowed, their ability to think clearly diminished, getting behind the wheels of cars. You're just going to see an increase in accidents." Mr. Early said he opposed decriminalization of an ounce or less of marijuana, opposes legalization, but supported medical marijuana with regard to terminal illnesses and glaucoma. "But I oppose the sentence within the proposed statute that said 'for any and all medical conditions that a doctor deems necessary,' because it's just another way of saying, as we learned in Colorado, you can get pot prescribed by some doctor for almost any reason," Mr. Early said. Alcohol has its inherent problems, but as a general rule, most people tell if a person is drunk, by looking, the district attorney said. "It's not so easy with marijuana, and it's not so easy to convince a jury or a judge beyond a reasonable doubt that marijuana is the basis for their behavior or the basis for what they're doing, unless we get a blood test or urine test that shows THC levels. We can't do that without a search warrant a lot of times," he said. Asked whether police would devote less time to pursuing hard-to-prove DUI-marijuana cases, Mr. Early said, "We're going to see more and more arrests for operating under the influence of marijuana, especially if they've got a joint going in the car, there's a heavy smell of marijuana when the police gets to the door. They're going to try to keep the public safe." In Dudley District Court three years ago, then-Acting Judge Robert G. Harbour suggested to area police departments that they add the charge of negligent driving to any case involving operating under the influence of drugs or alcohol. The negligent-driving charge, which says that the driver drove in a manner that "life and safety of the public might have been endangered," is easier to prove, and at times, the jury will convict on that charge, even if the commonwealth loses on the DUI charge, local authorities said. Meanwhile, Auburn Police Chief Andrew J. Sluckis Jr., said that, in 2016, "if and when" marijuana is legalized, "it's going to be too late to put the genie back in the bottle." "Come 2016, I think myself and a lot of other people in law enforcement and the judicial system are going to sit there and shrug their shoulders and say: 'What did you think was going to happen?' " He added: "I don't know where some people's priorities are when they vote for things like this, but we'll see what happens." Chief Sluckis said new legislation making it easier to secure DUI marijuana convictions would be welcome. But "it's probably going to be like everything else," he said. "Everybody tries to play catch-up after the fact, when we should really be putting some safeguards in place now, to deal with the fallout of probable legalization in 2016. "But until cars start piling into one another at an alarming rate, then someone will say: 'Gee, we probably need to address this,' when in fact it really should be addressed proactively right now." - --- MAP posted-by: Matt