Court rules cops can use field-sobriety tests meant for drunk drivers on possibly stoned drivers, but with a caveat

The Supreme Judicial Court ruled today that while current field-sobriety tests were developed to gauge whether somebody is too drunk to drive, they can provide valuable information if the driver is suspected of being stoned, instead.

But, the court cautions, police and prosecutors will have to use more than just field-sobriety tests as an argument to a jury or judge that a person was operating under the influence of marijuana - because scientists are still debating the best way to prove that an impaired driver was, in fact, impaired by pot consumption.

The ruling comes in the case of a guy charged with operating under the influence of marijuana in Milbury, after a state trooper stopped him because his rear lights weren't on and then noticed a haze and the distinct smell of smoked pot inside.

Although the man was able to recite numbers backwards and follow a moving object, he had problems with tests involving walking heel to toe and standing on one foot:

Rather than standing heel to toe, with his right foot in front and his left toes touching his heel, as he had been shown, Gerhardt moved his feet so that they were side by side; he also did not turn around as instructed. French determined that "the results of this test indicated that Gerhardt was impaired." The trooper then provided instructions and gave a demonstration of the [stand on one leg] test, and Gerhard indicated that he understood. In performing the test, however, Gerhard did not remain upright on one foot, instead putting his foot down multiple times, and swayed.

The court said that field-sobriety tests remain useful in helping a police officer determine whether a driver is too impaired to drive - but by themselves are not enough proof of being impaired by marijuana.

The absence of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean that they have no probative value. A police officer makes numerous relevant observations in the course of an encounter with a possibly impaired driver. There is no doubt that an officer may testify to his or her observations of, for example, any erratic driving or moving violations that led to the initial stop; the driver's appearance and demeanor; the odor of fresh or burnt marijuana; and the driver's behavior on exiting the vehicle.

In our view, certain of the FSTs also may provide information that is relevant to the question of a defendant's impairment, and a police officer may testify, as a lay witness, to his or her observations of the defendant's performance. In particular, observations of the performance of the OLS and the WAT may be admissible as evidence of a defendant's balance, coordination, ability to retain and follow directions, and ability to perform tasks requiring divided attention, and the presence or absence of other skills necessary for the safe operation of a motor vehicle. We see no reason why an officer's observations of a defendant's behavior on being asked to walk a straight line or to stand on one foot should be excluded because the scientific community's understanding of precisely how this correlates with marijuana use is still evolving. We are not persuaded, however, that the FSTs can be treated as scientific tests establishing impairment as a result of marijuana consumption. The scientific community has not reached a consensus as to whether a defendant's performance on any combination of FSTs, or on any individual FST, is correlated with marijuana use or impairment. The unsettled state of the scientific research suggests that FST evidence neither should be treated as a definitive test of impairment nor excluded entirely from consideration by the finder of fact.

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Comments

Simpler = Better

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Officers should just open a bag of potato chips in front of the driver and monitor the rate of consumption.

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Hilarious! Love these clever

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Hilarious! Love these clever anecdotes stuck in the 'Reefer Madness' past!

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Madness?

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I'm not being hysterical and I'm certainly not in favor or prohibition.

The munchies are very real.

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Educate yourself. Some

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Educate yourself. Some cannabis strains used therapeutically have appetite suppressant effects rather than appetite stimulant effects. It's not your uncle's reefer anymore

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New to this

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I'm a Uhub Regular but posting anonymously just because of the topic.

As someone who recently applied and got a medical marijuana card in this state, and has tried a wide variety pot-laced products and flower, and someone who has been smoking recreationaly for over 25 years. I can tell you that the poster above is 100% correct.

It is not your father's weed anymore. Hell, its not like the weed we got in the 90s. It's well grown, well planned,.. just quality stuff. And they can control 'side effects' so much now (depending on strain). Its really amazing. Just read the reviews on weedmaps.com or leafly.com on different strains. Each one does something different. It's amazing how far it's come.. even in the past 15 or so years.

It's really come alone way... a long way.

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To High Heaven

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When will they cultivate some that doesn't stink?

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Its coming

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It's coming.. but there's other things now. Like vaping oils.. which is HUGE now. And it doesn't stink. So it's coming.

My roommate who hates the smell of pot.. was glad when I switched to vapes. He's like "you mean I don't have to smell it anymore?!" I was "I've been vaping indoors for weeks, have you smelled it?" (He answered "no")

But in defense of pot growers.. alot of people LIKE the smell. Its sign of quality.. so we'll see.

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Water Curing

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Water curing the buds, as opposed to air curing, can remove a lot of the volatile compounds that give marijuana its distinctive odor. The problem with this is that many (most?) users quite enjoy the smell and use it as a gauge of the product's quality and/or potency. Supposedly, water-cured buds result in a much smoother smoking experience (I haven't tried it), and if we can hurry up and get some recreational dispensaries opened up, maybe they'll offer it and change people's minds.

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Once recreational shops open

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Once recreational shops open you'll see an explosion in (odor free) edibles, so the overall smell factor may well go down.

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You sound like someone who hasn't actually seen Reefer Madness.

The preconceptions about weed that that old chestnut promulgates are that it leads to sexual assault, murder, insanity and suicide, not pouncing on bags of junk food.

Not everyone has the same reaction, obviously, but I certainly know many users whom THC makes hungry for salty snacks.

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Another idea

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We always hear about how they have to idle the vehicle for hours outside their homes due to a need to keep their computer running ... well, how about a simulator test, then?

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Welp. I'd be flagged as

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Welp. I'd be flagged as stoned all day everyday and I hate weed.

Of course my balance sucks too, so I'm probably screwed either way.

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Sobriety Tests

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Given the fact that the police do not allow anyone other than themselves when they administer these so called Tests and then they grade the test in a way to justify the stop, motorists should, as they have a right to, to refuse to engage in them.

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just curiosity factor

Should take this moment to begin the infrastructure of determining if there's any correlation of drug test results from people popped for DUI weed in this manner; this might calibrate the officers' range of observation and/or disprove (as the science currently stands) any point in a test result as a standard level of impairment eg. alcohol's .08.

Don't drive baked, people.

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Zero points for that punt

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My summary of the court's opinion:
"It might mean something, but you can't be sure."

Surely, if someone stumbles out of their car and cannot stand at all, reasonable people could agree that they are too incapacitated to be driving (regardless of what they did to get that way.) Somewhere on the spectrum there is a line where your inability to do simple actions means you are too impaired to be driving and are a hazard to yourself and other drivers. I think the court could have made some attempt to define what constitutes too much, rather than say, "Scientists haven't yet decided."

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Disagree

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I see this as declaring the fsb test to be what it is: one factor in the case but not enough to convict.

So as a jury member, I'd then need to hear more evidence before I'd vote guilty. This may contrast with a breathalyzer, or blood test, where a result of .0x might be an automatic guilty. (Or an almost automatic guilty).

I'm not a lawyer and my legal understanding may be off-base, but that was my take-away.

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No

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They shouldn't just guess. They should follow the science.

Expedient guesses are not valid legal standards.

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yeah but

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Isn't the entire kerfluffle due in part to the fact that the science isn't there yet? So in the mean-time, if impairment is suspected, then this series of field tests (or the officer's related testimony) is one of a handful of potential elements of evidence, along with the brownie wrapper recovered from the back-seat, or the smoke coming out the window.

In turn, lacking a simple scientific measure, the defense will claim the suspect has always had difficulty saying the alphabet backwards, because c'mon. And that they're clumsy.

Then the jury will have to sort it out. Until someone smart figures out a scientific test, so be it.

They shouldn't just guess. They should follow the science.

Expedient guesses are not valid legal standards.

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Nope

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Did you bother to read the ruling?

THERE IS NO VALIDATED "INTERIM" METHOD AVAILABLE.

You probably think lie detector tests are valid and admissible, too.

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The old standard for DUI

used to be based largely around impairment and lack of coordination. If the officer got you out of the car and you couldn't walk a straight line, then you weren't fit to be driving, full stop.

The Breathalyzer made it possible for an officer without extensive scientific training to gather evidence in cases where a motorist was suspected of DUI. BAC as determined by breath analysis now serves as presumptive proof of guilt in most states. (And the level has been subject to revision, as we've found out that impairment and collision risk actually begin at way lower levels than the levels required for an unsteady gait and slurred speech, etc.)

What we lack is a similar easy to use field test for marijuana that measures current level of impairment rather than recent use. Without that, gathering objective evidence for a conviction of impaired driving is problematic.

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The law says that a machine

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The law says that a machine measuring certain compounds in your breath is evidence of your Blood Alcohol Concentration, and BAC is evidence of impairment.

Having a machine spit out a number certainly makes it easier for cops and DA's to make legal determinations, but I'm not convinced it really proves who is unsafe to drive in borderline cases.

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Surely, if someone stumbles

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Surely, if someone stumbles out of their car and cannot stand at all, reasonable people could agree that they are too incapacitated to be driving (regardless of what they did to get that way.)

-This comment is ridiculous, it completely overlooks disability. I wouldn't be able to pass a sobriety test stone-cold sober. I'm deaf and only have one useful eye, I have superb driving skills, and an impeccable driving record.

-Most people that cannot walk or stand, can still drive a car.

-Last year a NC state trooper shot and killed a man for not complying with his orders. The victim was Deaf.

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Although the man was able to

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Although the man was able to recite numbers backwards and follow a moving object, he had problems with tests involving walking heel to toe and standing on one foot:

As someone who is extremely clumsy, I have trouble doing this sober. I'd hate to be able to pass all the cognitive reflex tests but have my bad balance deem me "impaired".

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Exactly the problem

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Physical ability is not the same as cognitive impairment.

I would like to know if any such tests of physical or mental gaming have ever been properly scientifically correlated with ability to drive. What we need is a field test that correlates to driving ability. Physical agility is a very poor surrogate for that with substances other than alcohol and in the modern world of much easier to drive cars.

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I agree

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There are people who cannot do these things sober. However, rather than saying, "The scientists don't know" and giving up, we should be working on valid, tested, consistent ways that the police can "judge" whether someone is in a condition where they are not safe to drive. Sure, having a pot version of a breathalyzer is the holy grail, but I think that will prove to either be unworkable or still 20 years down the road. (I think adding edibles to the equation, pretty much rules out breath testing for pot anyway, but then who knows?)

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That's nice dear

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You going to get your reps and senators to cut loose both the funding and the legal structure to do so?

*crickets*

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I'm surprised field sobriety

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I'm surprised field sobriety tests hold up at all, since many of them involve complicated instructions or balance tests that many people couldn't pass under ideal, stress-free conditions.

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Not that complicated.

" Don't start this test until I'm done giving instructions, do you understand?"

This is the one that drunk people fail a lot, and it is the easiest part of the test. When you fail this part, you usually fail 5-10 other parts of the test. People who are impared are so focused on doing those steps on a line that they don't listen to the part where the officer tells them not to start the test until the instructions are finished.

You also don't have to "pivot" your foot at the end of the 9 step walk and turn anymore.

The best part is the you get a chance to blow in to a machine and get to prove your innocence if you do in fact fail the tests on the street. Anything under a .08 and you get to walk right out, and may even have a lawsuit if you feel you were unfairly targeted.

Also, the officer is supposed to ask you if there is any reason (medical, physical) why you wouldn't be able to perform the tests. If you are in a wheelchair, you obviously can't do the 3 standard tests, but you can recite the alphabet starting at C and ending in Y, or counting up from the number 51 and stopping at the number 72. Those are easy tests that sober people should be able to pass easily. Counting or saying the alphabet backwards is not a valid test and should never be given to determine field sobriety.

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Once again

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That may work for alcohol. It doesn't necessarily hold for other drugs.

We need a universal impairment test that determines fitness to drive, regardless of source of impairment (alcohol, drugs, not enough sleep, medical impairment, etc.).

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