Pubdate: Tue, 19 Sep 2017 Source: Boston Globe (MA) Copyright: 2017 Globe Newspaper Company Contact: http://services.bostonglobe.com/news/opeds/letter.aspx?id=6340 Website: http://bostonglobe.com/ Details: http://www.mapinc.org/media/52 Author: Dan Adams MASS. HIGH COURT SAYS SOBRIETY TESTS AREN'T EVIDENCE FOR POT USE Members of the Mass. State Police performed a sobriety test on a driver in Chicopee in 2011. The state's highest court on Tuesday limited which evidence can be used in court to prosecute drivers suspected of operating under the influence of marijuana, handing a victory to civil rights advocates in a closely-watched case. Under a unanimous ruling by the Supreme Judicial Court, Massachusetts police officers can no longer cite their subjective on-scene observations or sobriety tests to conclude in court testimony that a driver was under the influence of marijuana. In limiting the use of the familiar roadside tests designed to provide an approximate measure of drunkenness - walking in a straight line, standing on one foot, and so on - the court cited the "highly disparate results" of scientific studies on whether such tests reliably indicate how stoned someone is. "There is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication," the justices wrote in their decision. The judges also noted that the effects of marijuana on its users are more complex than those of alcohol on drinkers, and less obviously correlated to the amount consumed, making it difficult for untrained observers to know whether someone is high. "Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known," the court said, "neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana." Police officers can still arrest drivers they suspect are high and describe how the drivers behaved during the roadside tests. For example, an officer could tell a jury that a driver failed to walk in a straight line or count backwards. But under the ruling, the officer could not describe those tasks as "tests" or say the driver "failed" them. Similarly, an officer could tell a jury - as a lay witness, not an expert - that a driver smelled strongly of marijuana and seemed confused, but could not use such subjective observations to conclude the driver was high. While police and other untrained witnesses can no longer opine in court about whether defendants are high, the court ruled that jurors "are still permitted to utilize their common sense" in considering whether the sobriety assessments and other evidence indicate marijuana intoxication. The defendant in the case is Thomas Gerhardt, who was stopped in Millbury in February 2013 by a State Police trooper for allegedly driving with his lights off, according to a statement of facts agreed to by both sides in the case. The trooper testified he saw smoke inside the vehicle, smelled marijuana, and that Gerhardt told him there were "a couple of roaches" - - slang for mostly-burned marijuana joints - in the car's ashtray. Gerhardt allegedly said he had smoked about a gram of marijuana. He then failed to properly follow the instructions for the "walk-and-turn" test, the trooper said, placing his feet side-by-side instead of heel-to-toe, and also struggled to stand on one foot. Gerhardt was able to count and recite the alphabet backwards. The case has not yet gone to trial, amid legal wrangling over which evidence can be admitted in court. Rebecca Jacobstein, Gerhardt's attorney, called the ruling a victory over "junk science." "The big take-away here is that for the government to introduce something as science, it actually has to be science," she said in an interview. "Only real evidence gets to come in, and that's a good result for my client and for the law." Jacobstein said the decision does not make it harder for law enforcement to deter stoned driving. "I look at this more as a protection of people's right to have only meaningful and relevant evidence used against them," she said. A spokesman for the Massachusetts Chiefs of Police Association, was not immediately available for comment. A spokesman for Worcester County District Attorney Joseph D. Early Jr., whose office is prosecuting Gerhardt, did not immediately have a comment. Jay Winsten, director of Harvard University's Center for Health Communication and a pioneer of OUI awareness campaigns, said he is concerned about the potential for an increase in traffic fatalities now that recreational marijuana is legal in Massachusetts. However, he praised the court for taking a "middle ground" approach that allows roadside tests to admitted as relevant evidence without being assigned undue significance. "I think it was a wise, smart, and careful decision," Winsten said. "It keeps field sobriety tests in the picture without allowing police officers to claim they constitute unequivocal evidence of marijuana intoxication, which would be suggesting something that goes beyond what's currently known." "In the end," he added, "it's up to the common sense of jurors." - --- MAP posted-by: Matt