OUI Marijuana and Field Sobriety Tests, Commonwealth v. Gerhardt

On September 19, 2017 the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Gerhardt, SJC – 11967. This dealt with the admissibility of field sobriety tests as they relate to operating a motor vehicle under the influence of, or OUI marijuana. The Court held that in these cases, the term “field sobriety tests” cannot be used in court, rather the tests can be called “roadside assessments”. The Supreme Judicial Court further held that the officer cannot conclude that the driver passed or failed the test. Finally, the Court in Gerhardt crafted a jury instruction addressing the value of the roadside assessments that strongly assists the defense in these cases.

The Facts in Gerhardt

On February 13, 2013, shortly after midnight the defendant was pulled over operating without rear lights on. The officer initiating the stop saw smoke in the car and smelled burnt marijuana. The defendant produced his license. He was unable to produce a car registration. The defendant admitted to smoking about a gram of marijuana. He was asked to perform the horizontal gaze nystagmus test, the walk and turn test, the one-legged stand test, an alphabet test and a counting test. The defendant passed all but the one-legged stand test and the walk and turn test. He was arrested and charged with OUI marijuana. The defendant’s attorney challenged the admissibility of the field sobriety tests and the trial judge reported the case to the Appeals Court. The SJC took the case on an application for direct appellate review.

New Law for OUI Marijuana Cases in Massachusetts

Here are some of the more salient points in the Gerhardt decision. 1) There is no current scientific agreement as to whether the field sobriety tests administered for suspected alcohol impairment are “indicative of marijuana intoxication”, 2) officers testifying in OUI marijuana cases cannot conclude that the performance of the tests resulted in the defendant passing or failing the test, 3) the roadside assessments do have some probative value, 4) police officers may not, absent being qualified as an expert, render the opinion that a defendant was under the influence of marijuana.

Defendant Friendly Jury Instruction for Roadside Assessments in OUI Marijuana Cases

There is a consensus among Massachusetts criminal defense attorneys that the instruction laid out by the SJC is defense friendly. The instruction counsels that “roadside assessments are not scientific tests of impairment by marijuana use”. People may have difficulty with these assessments for many reasons not related to marijuana use. It is for the jury to determine how much weight, if any to give the tasks. The roadside assessments alone are not enough to convict for OUI marijuana in Massachusetts.

Hiring a Massachusetts OUI Marijuana Defense Attorney

Our office has been in the business of defending the accused for nearly thirty years. There is no case that cannot be successfully defended. With the legalization of marijuana there are more and more OUI marijuana charges in Massachusetts. Don’t wait. Call us now at 617-263-6800 or send us an email and let us help you with your criminal case.