Can I be charged with OUI/DUI after smoking marijuana?

The short answer is yes.  The fact that Massachusetts has legalized the personal use of marijuana does not change that, like with alcohol, you can still be charged for driving under the influence of marijuana.  Operating Under the Influence of Drugs carries the same penalty and has the same general elements as Operating Under the Influence of Alcohol.  General Laws c. 90, § 24(1)(a)(1), prohibits an individual from operating a motor vehicle on a public way “while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances.”

OUI-Drugs is being charged more often in the courts of the Commonwealth for a variety of reasons.  First, as more OUI-Drugs cases get tried, there are more appellate decisions on the various issues that come up during motions to suppress and trial.  This gives the police more law in their favor to charge people with OUI-Drugs and other offenses that arise from stops for OUI-Drugs.  Just recently, the Supreme Judicial Court decided that a motion judge was “warranted in finding that police had probable cause to believe that the defendant had operated a motor vehicle while impaired” when the officer that pulled over the defendant “detected the odor of burnt and unburnt marijuana emanating from the vehicle…the odor of burnt marijuana coming from the defendant’s person…the defendant had red and glassy eyes, he was struggling to keep his eyes open and his head upright, ‘his coordination was slow,’ he had difficulty ‘focusing,’ and he also had difficulty in following the officer’s ‘simple directions’…[and] [t]he defendant told the officer that he had smoked marijuana earlier that day.”  See Commonwealth v. Davis, SJC-12484 (Jan. 14, 2019).

Further, more and more police officers are being trained as drug recognition experts, or DRE’s.  These officers are trained to perform a specific protocol with individuals suspected of being under the influence of drugs and then to opine that the person is under the influence of a specific class of drugs.  As more police officers get trained as DRE’s, there is a wider availability of DRE’s to conduct these exams with suspects.  Unlike with alcohol, there is no test or machine in use that can tell if someone is under the influence of a drug.  This is one of the primary reasons why OUI-Drugs cases are hard for the government to prove at trial.  Before DRE’s, OUI-Drugs cases often got dismissed at trial or reduced to negligent operation because the government could not prove beyond a reasonable doubt that someone was under the influence of a type of drug.  Now, the District Attorney’s Offices are seeking to have DRE’s who were called to the scene testify at trial that the defendant was under the influence of a class of drugs.

The outcome of the Davis case is instructive.  After being arrested for OUI-Drugs, the defendant in that case was charged with a host of offenses related to drugs and a gun found in the trunk and glove box.  The Supreme Judicial Court agreed with the motion judge’s denial of the motion to suppress based on its finding that there was probable cause for OUI-Drugs.  Because of this, the other charges were properly brought.  At trial, however, the defendant was found not guilty of the OUI-Drugs charge.  Remember, OUI requires impairment of the ability to drive, as opposed to proof that the driver is “drunk” or “high.” See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).  Probable cause is a far lower standard than beyond a reasonable doubt.  It is important to work with a lawyer who has experience dealing with OUI-Drugs cases and with challenging the admissibility and opinions of a DRE.  OUI-Drugs cases are often very triable – make sure that your lawyer is well versed in the issues that accompany these types of cases to give yourself the best chance of a not guilty.

Michael Thaler, Esq.

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