Category: Drug Possession

Learn about the Commonwealth vs. Gerhardt case from Mike Bowser of Bowser Law and how this case applies to OUI marijuana cases throughout the Commonwealth of Massachusetts.

John Maher: Hi. I’m John Maher. I’m here today with Mike Bowser, a Board Certified DUI defense lawyer practicing in Massachusetts and New Hampshire. Today we’re talking about the Commonwealth vs. Gerhardt in OUI marijuana cases. Welcome, Mike.

Mike Bowser: Good morning.

The Commonwealth vs. Gerhardt Case Defined

John: Mike, tell me a little bit about the Commonwealth vs Gerhardt [case] and what does it mean.

Mike: Well, Gerhardt is a very interesting case. It was before the Massachusetts Supreme Judicial Court on January 6th and a decision should be forthcoming relatively soon. But the issue before the court on Gerhardt is, Mr. Gerhardt was stopped by the police and it was evident from the outset that he had recently smoked marijuana. As you know, marijuana in Massachusetts is now not an illegal activity. You can smoke marijuana. You can possess it. You can grow it.

Mr. Gerhardt had recently smoked marijuana. He was asked to step from the vehicle based on some indicators that the police officer believed showed possible impairment. Then he went through standardized field sobriety tests, and in Massachusetts you can expect three standardized tests – [the] horizontal gaze nystagmus test, a walk and turn or walk the line heel to toe test, and then the once leg stand balance on one foot, keeping that foot elevated for a period of time [test].

And the issue in Gerhardt that went up to the Supreme Court was, one, whether those tests should be allowed to be administered and then brought to the attention of a jury in an OUI drugs case, because they’re not designed specifically for impairment by any substance other than alcohol. And I think even more important in Gerhardt is — the issue was to whether a police officer will be able to stand in front of a judge or a jury at an OUI marijuana trial and state that he has an opinion that a person is impaired by marijuana.

Historically, alcohol impairment has always been an issue that is within the common knowledge of a fact finder, whether that be a juror sitting in jury or a judge sitting in a courtroom or a police officer looking at a person at the side of the road. Based on our own common experience and life experience, we’re allowed to state even a lay opinion, a lay person in an OUI trial, meaning any Joe off the street can testify in an OUI trial that he had an opinion that somebody was impaired by alcohol. Because it’s something that we’ve all had some exposure to and experience.

But in an OUI marijuana case, it’s not reasonable to expect that a police officer [can stand] up in front of a jury and say, ”I think he was high on marijuana.” What does that mean? And would every juror in that jury box have any kind of experience with marijuana or with someone who has smoked or been under the [influence of marijuana?]

John: Right. If you haven’t been drunk yourself on alcohol, you’ve been around somebody who has been. You know what that’s like. But it’s entirely possible that you could go through your life and not be near anybody who has taken marijuana.

Mike: Or taken marijuana yourself or have any experience that would allow you to hear that opinion from a police officer and able to reach a decision. Again, most police officers don’t have the requisite expertise, medical training, [or] toxicology training that would allow them to state an opinion as to whether a person is impaired or not.

John: They’re not necessarily trained on what to look for to determine if somebody is on drugs.

Mike: Alcohol and marijuana work upon the human body differently. They don’t affect your ability to drive in the same way. And therefore, part of that Gerhardt decision is whether a police officer is actually going to be able to stand up and render an opinion in an OUI marijuana case that a person was impaired by that marijuana or unfit to drive because of the consumption of that marijuana.

Field Sobriety Tests for Marijuana

John: Okay. Are police officers now administrating field sobriety tests when they suspect that a driver is under the influence of marijuana or are they doing that on a routine basis?

Mike: They are and that’s based on their training through the academy. They all received training in the standardized field sobriety test. The three that I mentioned; the HGN, the one leg stand and the walk and turn. However, those tests that have been around for a very long time were originally designed and then implemented and studied because there was some research behind that that indicated that you could determine impairment by alcohol based on a driver’s performance on those three tests.

These tests were never designed to detect impairment by marijuana and there was no scientific — well, there is very little scientific evidence that these tests would assist a fact finder or a police officer in determining whether a person is impaired by marijuana.

John: So, there’s currently no real evidence, scientific evidence that would suggest that these tests are accurate or not accurate for detecting impairment due to marijuana?

Mike: I would say that there’s not enough evidence available to show that they have any real determining factor in impairment by marijuana cases.

John: What does this mean then for people who are being arrested for OUI marijuana potentially in part based on a field sobriety test that was given to them?

Mike: These cases are very difficult for the government and the prosecution to prove because there are not these validated tests that they can use to determine impairment. There certainly is not a blood test available to the government at this point that they can use to show a particular level of THC in the system that equates to a level of impairment. If you’re arrested for OUI drugs, you’ll probably be asked to participate in some test but the question than becomes and the Gerhardt decision will address, whether that evidence is even admissible in a trial.

John: You can’t even take a breath test or have blood drawn at the police station and have that determined without a doubt that you were under the influence of marijuana.

Mike: At this point, those mechanisms do not exist in Massachusetts and that’s a part of what the legislature has been struggling with, is how are we going to address OUI marijuana cases when we don’t have a per se test? We don’t have any of those procedures in place right now for blood testing and there is no other form of testing available to the police at this time.

John: So really at this point, the case against the driver is all based on the opinion of the arresting officer?

Mike: Correct. And that opinion may not be admissible at the trial either, depending on the outcome of the Gerhardt decision.

John: Very interesting. All right. Thanks for speaking with me today, Mike.

Mike: Sure.

John: For more information about Mike Bowser, visit bowserlaw.com or call 888-526-9737.

Researched and Prepared by: Attorney Amy Manchester for Bowser Law

Now that marijuana use in Massachusetts is authorized for medicinal purposes, many questions have arisen amongst the citizens of the Commonwealth. We hope to answer some of these questions for you.

 

How do I become a card holder?

In order to obtain marijuana in the Commonwealth, a person must possess a prescription obtained from a physician. A person with a prescription may also cultivate his own marijuana pursuant to regulations set forth by the Department of Health.

 

Where can I purchase marijuana for medical use?

As of the end of January 2014, the Commonwealth has approved 20 different marijuana dispensaries in 19 cities/towns across 10 counties.

 

What is a dispensary?

A dispensary, per Massachusetts law, is also known as a “medical marijuana treatment center.” A dispensary acquires, cultivates, possesses, processes transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers. A dispensary must apply for status to become a registered location.

 

Who can buy from a dispensary?

Patients who are authorized to possess marijuana for a particular condition are allowed to purchase marijuana from a dispensary. The qualifying patient must obtain a written certification from a physician for a debilitating medical condition. The law specifies: cancer, glaucoma, AIDS, hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician. The law allows qualified patients to possess up to a 60-day supply of marijuana for their personal medical use.

Caregivers are also allowed to purchase an approved amount of marijuana on the patient’s behalf from the dispensary itself. A caregiver is defined in Massachusetts law as a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use of the qualifying patient. An employee of a hospice provider, nursing, or medical facility providing care to a qualifying patient may also serve as a personal caregiver.

 

What are the limits of the law permitting the use of medical marijuana?

Health insurance providers and government agencies are not required to cover the costs associated with medical marijuana use, nor are they required to reimburse a qualifying patient or caregiver. Further, medical professionals are not required to prescribe marijuana to a patient even if he or she is suffering from the conditions as specifically described in the law. The law does not permit authorized card holders to use marijuana in public places including schools, their places of employment or correctional facilities. Most importantly, the legalization of medical marijuana use in the Commonwealth does not provide federal immunity to qualifying patients.

 

How does possession of a medical marijuana card affect OUI?

Despite the fact that the Commonwealth of Massachusetts has passed the use of marijuana for medical purposes, it is still illegal to operate a motor vehicle, boat or aircraft while under the influence of marijuana. Keep in mind that marijuana can stay in your system for an extended period of time, so if you use cannabis at night and then drive the next morning and are pulled over by a police officer, you may still test positive for marijuana. Additionally, just because you may be a licensed card holder, possession of a medical marijuana card is not a defense to operating under the influence of drugs. If you are arrested for operating under the influence of marijuana, the prosecution is still required to prove your guilt beyond a reasonable doubt.

The blue lights come on. You stop the car and wait for the police with license and registration in hand. There is an odor of marijuana emanating from the interior of the car, you know it and the police will know it. What does it mean and what happens next?

It depends on whether you find yourself in Massachusetts or New Hampshire. A recent change in Massachusetts law de-criminalized, but did not legalize, the possession of less than one (1) ounce of marijuana. Massachusetts General Laws Chapter 94C, section 32L enacted December 4, 2008. Possession of less than one (1) ounce of marijuana is now treated as a civil infraction. Violators will lose their stash to the police and be handed a civil citation requiring payment of a one hundred dollar ($100) assessment to the municipality where the civil offense occurred. Previously, possession of any amount of marijuana was treated as a misdemeanor criminal offense with a potential jail sentence upon conviction and a mandatory one (1) year loss of license through the Registry of Motor Vehicles.

More importantly, in Massachusetts, the mere presence of “an odor of burnt marijuana”, without more, cannot reasonably provide police with suspicion of criminal activity to justify an exit order or search of the car after this change in the law. So held the Massachusetts Supreme Judicial Court in Commonwealth v. Cruz, 459 Mass 459 (2011). Now, if the police detect an odor of marijuana emanating from your person or your vehicle during a traffic stop, without more, they cannot detain you, search you, or arrest you. If there is evidence of other crimes, including operating while impaired by drugs or alcohol, the police are still justified in detaining the driver to further investigate. Erratic or dangerous driving, bloodshot glassy eyes, slurred, thick tongued speech, confusion or disorientation answering questions, slow reactions, difficulty retrieving license and registration, are all alleged indicia of impairment that police officers are trained to look for during any traffic stop.

Interestingly, the “odor of marijuana” emanating from a vehicle in New Hampshire does give rise to probable cause that a criminal offense is occurring. But, in the “Live Free or Die” State, the New Hampshire Supreme Court has not adopted the Federal Rule for the “automobile exception” to the warrant requirement. State v. Sterndale. Under Federal Law a warrantless search of a motor vehicle is permitted when police have “probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable. Carroll v. United States, 267 U.S. 132, 149 (1925). Exigent circumstances are created by the inherently mobile status of a vehicle.

Without the “automobile exception” to the warrant requirement, New Hampshire law enforcement can only briefly hold your vehicle for a K-9 sniff search and then apply to a Judge for a search warrant for your car. Without your consent, a police officer in New Hampshire does not have legal grounds to search your vehicle without a warrant based only on the “odor of marijuana.” Interestingly, almost every consent to search a motor vehicle obtained roadside by the police in New Hampshire is preceded by the officer’s warning that if you do not consent to the search he/she will “hold your vehicle, call the K-9 unit, and then tow your vehicle while a warrant is applied for.” Again, if there is evidence of other criminal activity, or probable cause to arrest for any other offense, including OUI, DUI, DWI, the car in all likelihood will be seized and searched pursuant to an established inventory policy, before it is towed.

There has been a lot of talk in the media lately about decriminalizing marijuana, but many people are still unsure what decriminalization really means. Far from making marijuana a legal recreational drug, decriminalization simply treats possession of small amounts (e.g., one ounce or less) of the drug as a civil offense rather than a criminal offense. People found to be in possession of marijuana are given a citation and fined, and the drugs are confiscated, but the accused do not face the threat of jail time.

Though the idea has recently entered the public consciousness, the initiative to decriminalize marijuana is actually decades old. Since 1973, 13 states legislatures – Alaska, California, Colorado, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon – have passed marijuana decriminalization laws.

The marijuana decriminalization movement has roots in research that has shown that removing the prohibition against possession has not been shown to lead to increases in marijuana use. In 2001, the British Journal of Psychiatry noted that “This prohibition inflicts harms directly and is costly. Unless it can be shown that the removal of criminal penalties will increase use of other harmful drugs, … it is difficult to see what society gains.” Additionally, it has not been shown that decriminalization has had any effect on adolescent attitudes toward drug use.

Proponents of the decriminalization of marijuana support a variety of initiatives, from reduced penalties for marijuana offenses to completely eliminating all of the penalties related to marijuana possession, sale, cultivation, and usage.

The Massachusetts and New Hampshire each voted on marijuana decriminalization bills in 2008. The New Hampshire Senate voted down a bill that would have reduced penalties for possession of amounts less than one quarter ounce even though the bill had passed in the House of Representatives and had a large body of support among voters. Whereas in Massachusetts, 65% of voters voted ‘yes’ on ballot question 2 known as the Massachusetts Sensible Marijuana Policy Initiative, which ultimately reduced the penalty for possession of an ounce or less of marijuana to a $100 fine.

DUI attorney Michael Bowser has years of experience successfully defending those accused of drug possession in Massachusetts and New Hampshire. If you have been charged with drug possession in Massachusetts or New Hampshire or have questions about marijuana possession penalties in either state, it is vital that you talk to representation who understands the law. Call Attorney Michael Bowser today at 1-888-5BOWSER to discuss your individual circumstances.

If you have been charged with a drug crime, possession, trafficking, sale of a controlled drug or narcotics, you absolutely need to hire a qualified criminal defense lawyer. The number one issue in every drug defense is how did the police, the drugs and the defendant/client come to be in the same place at the same time. The defense of these cases starts in day 1, looking at the search and seizure issues involved. Whether it’s a motor vehicle stop, a search of a locker at school, entry into a home, going through a person’s purse, whether there was a pat down or a frisk, an exit order from the motor vehicle. Drug defense involves constitutional analysis of the rights of the defendant versus the rights of the government to stop, seize and search that person’s person, home, motor vehicle, belongings. If you’ve been charged with a drug offense, please, hire a qualified criminal defense lawyer who is familiar and well versed with the search and seizure constitutional issues that apply to each and every one of these cases.