Pubdate: Thu, 19 May 2016 Source: Boston Herald (MA) Column: Full Court Press Copyright: 2016 The Boston Herald, Inc Contact: http://www.bostonherald.com/ Details: http://www.mapinc.org/media/53 Note: Prints only very short LTEs. Author: Bob McGovern Bookmark: http://www.mapinc.org/find?224 (Cannabis and Driving) HIGH COURT MAKING IT DIFFICULT TO CONVICT STONERS BEHIND THE WHEEL There's no easy way to convict someone of being stoned while behind the wheel, and recent high-court decisions tied with patchwork sobriety tests have made things even tougher for state prosecutors. And it could be very difficult to prove that David Njuguna was high, as prosecutors say he was when he crashed into a state police cruiser in Charlton in March, killing trooper Thomas L. Clardy. Any defense attorney in the state would rather handle an OUI marijuana than a standard drunken driving case. Even before pot smokers are pulled over, they have more protections than someone who had one too many beers. "These are much more difficult to prove as a prosecutor. There's no test out there to measure the THC in your system," said criminal defense attorney David Yannetti, referring to the psychoactive substance in weed. "They're basically going off the smell of marijuana on your breath and some type of erratic driving. It's a lot harder to prove these cases beyond a reasonable doubt." In a series of recent decisions, the Supreme Judicial Court has made it more difficult for police to pull someone over who has been smoking weed. The smell of marijuana - burned or fresh - doesn't give cops cause to pull over a vehicle, the court has ruled. Even when a person drives erratically, roadside sobriety tests have been successfully challenged by attorneys across the state. "Even if they have marijuana on the breath, people will pass the field sobriety test, or police can't show that it affected their driving," said defense attorney Mark Helwig. "You can't really quantify how much marijuana someone had without a sophisticated test." The SJC currently is mulling a case it heard in February challenging whether police officers should even be allowed to testify about the administration and results of field sobriety tests. There are blood tests that detect marijuana, but even then, there are few slam-dunk cases. First, you're allowed to turn down the test without worrying about losing your license, as a drunken driving suspect would. If police do get a blood sample, it isn't conclusive evidence that you were driving stoned. Unlike the .08 needed to show you were driving under the influence, there is no legal standard for THC levels in the Bay State. "The fact that it's in your system doesn't mean you were under the influence," said Terrence Kennedy, a defense attorney and member of the Governor's Council. "Absent levels of THC and expert testimony to say how it would affect you, it's not even admissible." All told - even with heaps of evidence and glassy eyes - the law in Massachusetts today is slanted in favor of stoners. - --- MAP posted-by: Jay Bergstrom