“Field Sobriety Tests” CANNOT be used to establish that a driver who has used marijuana is legally impaired in OUI Marijuana cases.

• Steven Topazio wrote this February 20, 2020 at 10:08 pm

In the case of Commonwealth v. Gerhardt, the Supreme Judicial Court ruled that a police officer can testify to observations made during field sobriety tests of drivers suspected of being under the influence of marijuana, but the results of those field sobriety tests may not be used as the sole evidence to convict someone of driving under the influence of marijuana.  In order for a police officer to testify to the correlation between marijuana impairment and a defendant’s performance of field sobriety testing, that officer must be qualified as an expert witness.

In Gerhardt, a Massachusetts State Police Trooper stopped the defendant at 12:20 a.m. because his lights were out. The defendant was driving, and there were two passengers in the car.  As the trooper approached the vehicle after the stop, he “saw smoke inside the vehicle” and “detected ‘the distinct odor of burnt marijuana.’”  The trooper asked the occupants when they had smoked marijuana and one of the passengers stated they had smoked about 20 minutes ago. The defendant, however, stated that they had smoked 3 hours earlier. The trooper asked the defendant how much he had smoked, and the defendant stated he had smoked about 1 gram of marijuana. The defendant was ordered to exit the vehicle and asked to perform field sobriety tests. The trooper administered the horizontal gaze nystagmus test; the 9 step walk and turn test; and the one-legged stand test. He also asked the defendant to recite the alphabet from D to Q and to count backward from 75 to 62.  He passed the nystagmus test and he was able to recite the portion of the alphabet and to count backward. The trooper determined, however, that the defendant did not pass the walk and turn test nor the one-legged stand test.  As a result, the trooper formed the opinion and the defendant was impaired and he arrested the defendant for the alleged operation of a motor vehicle while under the influence of marijuana. Prior to trial, defense counsel filed a motion challenging whether the arresting officer’s observations of the defendant’s performance during the field sobriety tests were admissible. After hearing, the trial judge reported 4 questions to the Supreme Judicial Court:

1. Whether police officers may testify to the administration and results of standard field sobriety tests in prosecutions for operating under the influence of marijuana as they do in operating under the influence of alcohol prosecutions?

2. Are the effects of marijuana consumption sufficiently within the common knowledge and experience of a lay (regular) person, such that a non-expert witness may offer opinion evidence whether a person is “high” on marijuana?

3. May a police officer, who has not been qualified as an expert witness, testify to the effects of marijuana on a person such as bloodshot eyes, lack of coordination and/or balance, reaction times, slow speech, paranoia, or relaxed responses?

4. May a juror rely on their own experience and common sense about the effects of marijuana as they may do in an operating under the influence of alcohol prosecution?

To the first question, the Massachusetts Supreme Judicial Court answered “NO” – police officers are not permitted to testify to the administration and results of field sobriety tests as they do in operating under the influence of alcohol prosecutions.  This is because the Court explained, standard field sobriety tests were developed specifically to measure alcohol consumption, as opposed to measuring the influence of ingested drugs. To that end, the court acknowledged that there is scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least 0.80%. When it comes to whether these tests are sufficiently indicative of marijuana intoxication, there are, as of yet, no scientific data or agreements. The SJC further answered that a lay witness may not offer an opinion that another person is “high” on marijuana.  A witness may, however, testifying concerning the defendant’s observable appearance.  In other words, the witness may arguably testify about the person’s appearance, behavior, demeanor, manner of speech, etc. To the third question, the SJC likewise affirmed that a police officer may testify to any observed characteristics of the driver such as bloodshot eyes, drowsiness, and/or lack of coordination. The police officer may not, however, offer an opinion that any such observations may be interpreted to mean that the persons under the influence of marijuana. The Court noted that “The introduction in evidence of the officer’s observations of what will be described as ‘roadside assessments’ [not as tests] shall be without any statement as to whether the driver’s performance would have been deemed a ‘pass’ or a ‘fail.’” Finally, the SJC also answered the 4th question in the affirmative – jurors are permitted to utilize their common sense in assessing trial evidence (as they do in most cases).  But, “[i]n all circumstances, …it must be made clear to the [jury] that the [field sobriety tests] do not directly test marijuana impairment” and “that evidence of performance on FSTs alone, is not sufficient to support a finding that a defendant’s ability to drive safely was impaired due to the consumption of marijuana.”

To the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, field sobriety tests are admissible at trial as observations of police officers conducting the assessment.  Field sobriety tests in OUI marijuana cases, however, cannot be used as scientific tests to establish impairment due to alleged marijuana use.