In a recent DUI case in Massachusetts, the state sought to prove that the defendant was impaired from marijuana while driving, thereby rendering him guilty of driving under the influence under that state’s DUI laws. At the trial, the prosecutor had the arresting police officer testify that based on his observations of the defendant and the field sobriety exercises, the defendant was high on marijuana. The defendant was convicted of DUI, and the criminal defense lawyer appealed.
The appeal was successful, and the DUI conviction was reversed. The Massachusetts Supreme Judicial Court ruled that a police officer cannot legally testify that a defendant was high on marijuana based on observations and a field sobriety test. The court noted that marijuana can have different effects on different people. Also, the police officer was not an expert on marijuana and its varying effects on people (very few, if any, are; most seem to think they are). As a result, the police officer’s testimony on that issue was improper to support a DUI conviction.
In just about every DUI case, the police officer is going to ask the suspect to submit to field sobriety exercises. These are difficult balancing and related exercises performed under adverse circumstances. The directions for each test can be confusing, and if a suspect says he/she does not understand them or needs for them to be repeated, the police officer will likely suggest that is evidence of impairment rather than the officer’s poor communication or explanation. The tests are completely subjective, and the judge is a police officer who likely already believes the suspect is impaired, otherwise that judge would not have asked the suspect to perform them in the first place. Sometimes the suspect’s performance is recorded on a police officer’s camera in his/her vehicle, but often it is not because many police officers do not have video cameras in their vehicles. If the arrest is not recorded, whether the defendant did well on the field sobriety exercises or completely failed them is a matter of the police officer’s word against the defendant’s word. However, because the effects of excessive alcohol intake are well known and fairly consistent among different people, police officers are allowed to testify that a defendant who allegedly failed the field sobriety tests was too impaired from alcohol to drive. That is not the case with regard to marijuana, according to this recent Massachusetts case.
In marijuana DUI cases, a police officer can still testify as to certain specific factual observations- like the usual things they put in every report including bloodshot eyes, slurred speech, swaying, odor of alcohol, or marijuana in a case like this one. However, the police officer cannot use those observations to testify to a conclusion like the one attempted here. A jury could take those facts coupled with evidence of marijuana found at the scene of the DUI arrest and/or a positive blood or urine test and find a defendant guilty of DUI based on marijuana, but the police officer would be limited with his/her testimony.
We are not aware of a similar case in Florida although it may be an issue decided by Florida courts at some point. The fact is, there are nearly 1,000 strains of marijuana sold across the United States, perhaps more as new strains are bred all of the time. Many of them accomplish different things. Some help with focus and concentration. Triathletes and other endurance athletes use marijuana as part of their training. There are also gyms popping up in states where marijuana is legal that sell strains to help people with their workouts. Power Plant Fitness is the first cannabis gym, and it is doing very well. And marijuana is widely recognized as a benefit to people who are undertaking difficult intellectual exercises and those requiring creativity. Of course, there are also strains that cause impairment, and people should avoid driving after using them.
The bottom line is that people, including many or most people in our law enforcement and criminal justice systems, are quite ignorant of marijuana varieties and what they do. Much of this ignorance is by design and for job preservation. However, as this case illustrates, people are starting to realize there is much more to marijuana than antiquated and science-ignorant opinions about the plant and how it affects people. Such blanket, flawed reasoning has no place in a courtroom and should never be the impetus for a criminal conviction. At least that’s what they told us in law school.