The Commonwealth vs. Gerhardt Case Defined

March 28, 2017


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 or call 888-526-9737.

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