Marijuana & OUI: Driving While High in Massachusetts

OUI Boston Criminal Defense Lawyer

A new report released by the AAA Foundation for Traffic Safety found that over 14 million Americans admit to driving within an hour of using marijuana. The effects of THC, the active compound in cannabis, on ability to drive are still unclear. At the end of 2012, Colorado and Washington were the first states in the nation to legalize recreational marijuana use. Since then, Colorado has seen an overall decrease in DUIs, while Washington state saw a slight uptick. In fact, of the fatal car accidents in Washington state in 2014, 1 in 6 drives had recently used marijuana.

Since weed was legalized in Massachusetts in 2016, nearly 20 dispensaries have opened in the state, with many more locations in the works. The legalization is expected to bring in tens of millions in tax revenue for the state, but some advocates are concerned about the effects on roadway safety. Addressing these concerns, Governor Charlie Baker is pushing a bill that would penalize drivers who refused to consent to a roadside marijuana impairment test.

The Problem With Penalizing Marijuana Impairment Test Refusal

The problem, however, is that there is no good way to measure how high someone is. There is no marijuana equivalent to a blood alcohol content (BAC) breathalyzer test. And a conclusive test for marijuana impairment is still years away and will be exceeding difficult to develop.

The Massachusetts American Civil Liberties Union spoke out against Gov. Baker’s proposed bill. Matt Allen, a field director for the organization, says that if a test is implemented and drivers are penalized for a refusal, that test should be based on evidence and science.

Lack of a conclusive test won’t stop the police and prosecutors in the Commonwealth from arresting and bringing OUI cases against drivers who are under the influence of marijuana. When you are pulled over and the police suspect you have been drinking, you have the right to refuse a breathalyzer. Refusing a BAC test will result in the automatic suspension of your license for a time dependent on your OUI history, but a refusal cannot be used against you during a criminal prosecution. This is what Gov. Baker is proposing for drivers suspected of driving while high.

Defending an OUI Case: Alcohol vs. Marijuana

Marijuana OUIs will be prosecuted under the same statute as all other OUIs, M.G.L. c. 90 § 24, which requires the Commonwealth to prove the following three elements beyond a reasonable doubt:

1. The vehicle (or boat, aircraft, tractor, etc.) was operated,
2. On a public way or other area that members of the public have a right of access to, and
3. The operator of the vehicle was under the influence of some intoxicant.

The Commonwealth brings thousands of OUI cases every year that involve breathalyzer refusals. When the breathalyzer test is refused, the third element is often established with the arresting officer’s testimony about things like: bloodshot eyes, odor of alcohol, and field sobriety tests.

Even if you refuse a roadside marijuana impairment test, the Commonwealth may rely on following types of evidence to bring a case against you:

• Bloodshot eyes
• Marijuana smell
• Field sobriety test
• Interview with a drug recognition officer
• Speech mannerisms, including lethargic speech

Hire a Criminal Lawyer with Experience Defending OUI Cases

With all the publicity surrounding driving while high, District Attorneys will likely take these types of cases seriously. If you are facing an OUI charge for driving while high, you should hire an aggressive criminal defense lawyer who you trust and who will fight for your rights. The Law Office of Patrick J. Murphy has twenty-five years of experience defending these types of cases.

If you want to discuss your marijuana OUI criminal charge with an experienced attorney, Attorney Murphy provides a complementary and confidential consultation. Attorney Murphy can be reached 24/7 at (617) 367-0450, or you can use this online form to set up an appointment.