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Marijuana Legalization and Drunk Driving in MA – Expert Network Interview, December 30, 2016

January 31, 2017

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In this Expert Network interview on WCAP Radio, Attorney Mike Bowser discusses the recent marijuana legalization in Massachusetts and its potential effect on drunk driving laws and police procedures when you pulled over while driving.

Teddy: We’re very excited to welcome in our first guest of the morning. He is a member of our Expert Network. He’s joining us this morning to talk about a Supreme Court case, a Massachusetts Supreme Court case, that is very relevant to what Chris and I have been talking a lot about these last couple of days – what we’ve really been talking about since November 8th, and even before that. Marijuana – now that it’s legal, some of the legal side effects that are coming into play. Attorney Michael Bowser is joining us in studios. Good morning, Counselor. How are you, Sir?

Mike: Good morning, Ted. How are you?

Teddy: Good. Merry Christmas, Happy Holidays, Happy New Year to you and all your loved ones. We haven’t touched base for a while.

Mike: No, it’s all been an incredible year. I’ve had a great year.

Teddy: You’re a busy man, aren’t you?

Mike: I am, yes.

Teddy: You’re going to get a lot busier after November 8th, aren’t you?

Mike: I may.

Teddy: Or December 15th I should say, right?

Mike: Right, and we’re waiting for a decision from the Massachusetts Supreme Court in Commonwealth vs Gerhardt which is an OUI marijuana case out of Worcester County. A state trooper pulled over Mr. Gerhardt who had obviously just recently consumed marijuana.

Teddy: You say obviously. Well, how do we know it? Did they do a blood test? Did they do a breathalyzer?

Mike: There was smoke billowing from the window as he approached. There were ashes on his person and in the car, and he admitted to recently smoking. The evidence is there, the facts. There’s no motion to change the facts. Those are the facts.

Teddy: He said he was smoking marijuana.

Mike: He did admit to it, and the trooper put him through what are considered the standard battery of field sobriety tests. Those tests were designed many years ago and have some validation to detect impairment by alcohol. They are not designed, nor are they terribly accurate or reliable, for impairment by other substances including marijuana.

Teddy: All right, we’re talking the field sobriety test, the one that you famously put me through, that I flunked after not having had a drink in about six days and only coffee, Pepsi and water since then. Walk in a straight line, turn, balance, what are the steps again?

Mike: The standard battery of field sobriety tests, or at least the standardized battery of three, is a horizontal gaze nystagmus test. That is where an officer is going to put a pen in front of your face and move that pen back and forth in a horizontal fashion. He’s looking for the involuntary jerking of the eyeball, which is nystagmus, caused by alcohol. Then he will have you do a walk and turn. That’s stand heel to toe, nine steps up, nine steps back on the line. Then the last one is a one leg stand. That’s the one where you’re asked to elevate one foot six inches off the ground, hold it in a balanced position and count out loud to a count of 30. That’s the standardized field sobriety test battery.

Mike: Which is interesting, these–

Teddy: Sobriety only means alcohol, apparently, right?

Mike: They’re not designed to determine whether you are an unsafe driver. They’re designed to determine whether you are impaired by alcohol. The correlation between driving and field sobriety tests, the nexus has always been they show impairment by alcohol. If you’re impaired by alcohol, then you could be unsafe to drive. There is no nexus or connection between marijuana use consumption and inability to do these tests.

Teddy: Have there been tests done? Have there been studies done to show if alcohol and marijuana affect you or impair you similarly or does marijuana impair you at all?

Mike: Differently. Marijuana can be an impairing substance, but marijuana and alcohol affect the body differently. Alcohol has a whole-body effect, meaning, if you’re impaired by alcohol, it affects your judgment, your thinking, your motor skills.

Teddy: Reflexes.

Mike: Your speech, your reflexes, your balance.

Teddy: Marijuana doesn’t?

Mike: Not always, and it has a different effect on different people. It acts on different receptors within the body and is a euphoric effect. People consider you being high that euphoric effect you may have if you smoke marijuana.

Teddy: Why are you looking at Chris when you say that?

Mike: He’s smiling at me.

Chris: I’m just listening.

Mike: Then there’s the physiological effect which is much, much different. You can be a person who has consumed marijuana and not be unsafe to drive. It’s a very difficult position for a police officer to be in to try to determine. Then what is reported to the Supreme Court are questions out of the District Court in Worcester as to what exactly a police officer can testify to. What can he say? Can you ask a jury to rely upon their own lay opinions? Going back to the ‘20s, we have case law in Massachusetts that says that a juror, a lay person, can hear evidence and determine whether a person’s impaired by alcohol because alcohol is common to – everyone’s familiar with alcohol and its effects – every adult. That’s not true with marijuana.

Very few people are familiar with the physiological effects of marijuana and the huge distinction between the effects of alcohol versus the effects of marijuana. To ask a juror to speculate as to what high, literally, what does high mean? Can a police officer stand up in front of a jury and say I think Mr. Panos was high. What does that mean? If you stand up in front of a jury and you say I think Chris Poublon was drunk, every juror knows what that means. But they do not necessarily know or have any common knowledge of the effects of marijuana.

Teddy: Now this is the one area, the driving while under the influence of marijuana, that folks talked about some of the complications from that ballot initiative. There is no standardized test. At least what I’m learning now is there’s no standardized behavior or impairment changes either. In the old days, it was, even if you couldn’t prove impairment, it was illegal to possess and use marijuana. You were going to get in trouble for something, right?

Mike: Correct.

Teddy: They could at least pull you over for something.

Mike: Well, it was a crime to possess marijuana. That went away several years ago. Now it is no longer a crime to possess, to grow, or to consume marijuana, but it’s illegal to purchase marijuana. The legislature just kicked out the date for sales by another six months. I think they’ve back-doored an extension in there, and they want the governor to extend it.

Teddy: Yes, July of 2018.

Mike: Correct. It’s no longer a crime to possess, grow, consume, but you can’t buy it.

Teddy: Okay. There’s talk about creating — they wanted extra time to come up with some tests for the drivers. Can they buy ten years’ worth of time and come up with that test? It sounds like your answer is no.

Mike: Right now, there is no agreement in the scientific community, definitely, as to field sobriety testing. There are studies as recent as 2014 that show that the standard battery of field sobriety test is not accurate, is not reliable, for detecting impairment by marijuana. There’s a huge false positive amongst marijuana users. Right now, we do not have the scientific capability, especially in the sense of a standard drunk driving stop. You can’t take the guy to the station and draw his blood and come up with a conclusive level of THC impairment.

Teddy: All right, Mr. Gerhardt admitted to smoking marijuana, using it. It was in his car. The officer detected the smoke when the windows were rolled down and what. What happened? He got charged with–

Mike: He put him through the standard battery. He passed the horizontal gaze nystagmus test. Marijuana doesn’t cause that or cause that effect upon your eyes or your nervous system.

Teddy: Could the officer see, were his eyes open far enough for the officer to see the eyeballs?

Mike: His eyes were bloodshot. He had some difficulty with the walk and turn test and he some difficulty with his balance in the one leg stand. The defense lawyer in the District Court out in Worcester County filed a motion asking the District Court judge to rule that that trooper cannot use the word high. He shouldn’t be able to testify that he had an opinion that Mr. Gerhardt was impaired. He should not be able to testify before a jury that he administered those tests that are designed for alcohol to reach a conclusion of impairment by marijuana.

Judge DeAngelo – who I think most lawyers, prosecutors and defense lawyers alike would say is probably one of the more thoughtful judges on the bench – he reported those four questions. He said, you know what, this is an issue that has to be addressed by the highest court or a higher court. He reported those four questions to the Appeals Court I believe, and then the SJC grabbed it. Now briefs have been filed. Amicus briefs and I think oral arguments are next Friday.

Teddy: There was no decision reached in the lower court case. The judge said, “Listen, we need clearance on this before we can proceed.”

Mike: We need clarity from the higher courts or the appellate courts as to what is going to be admissible in an OUI marijuana prosecution. They’re coming.

Teddy: In this particular case, with the legislators saying we need time to craft laws about this. No, they don’t. The court’s going to decide this for them. No matter what they do, once the State Supreme Court rules, I can’t see what law you can pass that would circumvent whatever the judge rules, can you?

Mike: No, people are going to be arrested and charged with OUI drugs, OUI marijuana from now until July of 2018. These prosecutions are going to go forward, and the courts need some clarification from the SJC as to what’s going to be admissible tomorrow, or next month, or next year.

Teddy: Let’s talk practical, because as of December 15th it became legal. Theoretically more people will use in situations where they might not have, and that might include being out in public. Just like when you’re drinking in public, you eventually try to go home or get somewhere. We may see a rise in the number of people doing this, theoretically of course. Let’s talk about an individual case.

As someone who is an expert in this field, although you just said nobody is really an expert yet until the State Supreme Court rules. What’s your advice to somebody? Let’s say that Chris or I, our New Year’s Eve. We go out, we have a little fun and part of that fun, we smoke a fatty in the parking lot. But then we have to get home. Gabby wants Chris to spend New Year’s Eve with her. Mrs. Teddy P would like me to go home and watch the ball drop together. We get in our car and we get pulled over. We haven’t had a drink, we had our Chinese food and our joint.

Mike: Right. This is where I’d normally say, listen, everybody has to know their own limit and the standard is are you impaired to drive safely? Is your ability to operate a vehicle impaired by the alcohol that you’ve consumed? With alcohol that’s a different amount with every single person, you have to know your limit. Now, honestly in the area of marijuana, I don’t know what that limit is, and there’s a huge difference with marijuana and tolerance and exposure and how often you smoke and whether you are truly impaired.

There are people that smoke pot every day and get behind the wheel – they’re not unsafe to drive. In fact there are studies that show that smoking marijuana makes you a more cautious driver, not a more impaired driver. That being said, if you are pulled over by a police officer, and we’ve had this conversation before, you’re obviously going to be asked for a license and registration, you have to hand over those documents upon request.

Teddy: Don’t mouth off.

Mike: No. God no.

Teddy: Comply.

Mike: Cooperative, polite, hand over your documents. However–

Teddy: Get out of the car. Now what?

Mike: Once you’re stopped, at that point the officer, based on what he observes and what he thinks is going on, is probably going to ask you a number of questions about what did you consume? Where did you consume it? Did you smoke a fatty? Why do I smell marijuana in the car? Can you get out to do a field sobriety test? Then literally you can say to that officer, “I’m not answering any questions. Am I free to go?” At that point–

Teddy: That’s the response? I’m not answering any questions–

Mike: Or you can say, am I free to leave?

Teddy: Am I free to leave.

Mike: Put it on him to tell you whether you can leave or not and in most instances I think in every instance he’s going to say no.

Teddy: I was going to say is that a trigger? That question right there, am I free to leave? Is that a trigger for the officer to suddenly get suspicious and go into prosecutorial mode?

Mike: No, but it puts into the proper context whether you have a right to remain silent, and that puts it on their plate. “Am I free to leave?” If he says no, you can certainly say, “Well I’m not answering any questions.” The only one you’re required to answer is license and registration and that is not even a verbal response, that’s handing over of documents.

Teddy: The officer says to me, “Take this field sobriety test.” or “Take this Breathalyzer test.” If I say no, my license is gone. Whether I’m sober or not, whether that gets adjudicated or not, for that period of time–with alcohol, I lose my license. With marijuana, what happens?

Mike: With alcohol, if the officer says, “Mr. Panos I want you to step from the vehicle for a field sobriety testing.” “No thank you, I’m not doing those tests.” Then he’s got to make a decision as to whether he’s got probable cause to arrest. The refusal of the field test does not trigger any administrative sanction against your driver’s license. When you’re out of the car, and handcuffed and you’re cooperative and polite and compliant with that.

When he tells you you’re under arrest you cannot resist or remain in the vehicle, you have to get out and submit to the arrest, it’s a lawful arrest, then you go to the station. Here’s the problem, in an alcohol case you’re going to be asked to submit to a breath test to read the blood alcohol content in your body. If you refuse that test there’s an administrative sanction; you lose your license automatically.

Teddy: I lose my license until I can fight to get it back in court.

Mike: You take the test and you’re over the legal limit, there’s an administrative sanction and you lose the license for a much shorter period of time but you lose it. In a marijuana case, unless they’re specifically asking you for a blood draw, there is no machine at the barracks or the station that they can say, “We want you to submit to a test right here and now.” This is a conundrum – even if there was a test, what’s the level? If you submit to it and take it, and it’s the metabolite of marijuana that’s been in your system for the last 17 years because you smoke everyday versus the active ingredient of THC because you just smoked recently, there is no per se level. There can’t be an administrative sanction if the marijuana is in your system right now.

Teddy: Will I lose my license if I refuse to take that marijuana blood test?

Mike: I believe if a state trooper, as the state of the law is right now, if they ask you to submit to a blood test – they can ask you to submit to a chemical test, breath, blood or urine, it’s their choice and they can certainly ask that you have blood drawn as a mechanism for officers to go through a protocol at a hospital for what’s called a legal blood draw.

They can do that, they can make that request. If you refused to participate in that, they could report that refusal to the registry that would trigger a loss of license just as it would in an alcohol case. It’s very rarely done. Most often in a station, they ask you to take a breath test, you refuse, it goes right to the registry through the breath test machine. It’s rare that a refusal of a blood test is actually reported to the registry by a police department. I’ve seen it but it’s rare.

Teddy: We have a listener who wants to ask a question, Cliff, Counselor Bowser does not have head phones. If you ask me the question I’ll be happy to relay it for him.

Cliff: I’ve just got a couple of statements to make. Michael Bowser represented me in one of my cases in the past. He’s definitely the best around. Also to make a quick point when you’re talking about the marijuana situation, in Lowell it’s an unusual situation where if a person gets pulled over by the National Park Service, you actually go to court at the federal court in Boston. That’s something I found out fairly recently. That’s just a couple of statements I want to make. Like I said Michael Bowser’s the best around. Thanks, bye.

Teddy: Thanks for the call Cliff. First of all, in case you couldn’t hear that he says that you’re the best around and that you actually represented him in a recent case. But he also talked about having to go to Boston if you–? I missed that last part a little bit, the sound was muffled.

Mike: That’s the only part that I heard. Yes, there’s a federal statute against impaired driving. You can get charged in the federal court with a drunk driving offense and it happens at the National Seashore down the Cape–

Teddy: If who pulls you over? A local police officer isn’t going to charge you federally right?

Mike:  Well, it could happen on an Air Force base, an Army base, The National Seashore down the Cape.

Teddy: On government property; National Park Ranger.

Mike: National Park in Lowell. Absolutely.

Teddy: I got you.

Mike: Yes, and again, not often but I’ve been there and I’ve done that and I have seen it. I haven’t been to the federal court on a drunk driving case in several years but I have seen them and it does happen. Yes, there’s a separate body of federal law similar to state law having to do with drunk driving.

Teddy: Tomorrow night is New Year’s Eve. We always caution people – don’t drink, don’t drive. If you’re going to smoke, try not to drive.

Mike: Know your limits.

Teddy: The law and the science isn’t included yet but why take the chance? We really want Counselor Bowser to find another profession, but if you are in need of his services, you’re phone lines, your internet, your email’s going to be activated all weekend. Please let folks know how they can get in touch with you, counselor.

Mike: Sure. The toll-free number is actually 1-888-5-BOWSER, B-O-W-S-E-R and the website is www.bowserlaw.com.

Teddy: Okay, and to recap, if you find yourself in that situation, whether you’ve had one drink or eight drinks, whether you’ve taken a puff of a joint or done the whole fatty by yourself, officer pulls you over, they ask for your license and registration; you have to comply, correct?

Mike: Yes.

Teddy: Don’t mouth off, don’t do anything.

Mike: No.

Teddy: They start asking you questions, “Where you coming from?” “What did you do when you were there?” What’s your advice?

Mike: “Am I free to leave?”

Teddy: Don’t answer the questions, say “am I free to leave”?

Mike: “Am I free to leave”, and the response will be “no”, and then you can say to the officer, “I’m not going to be answering any questions.”

Teddy: “I’m not going to be answering any questions”.

Mike: I can almost guarantee you, you will be arrested when you say that.

Teddy: I was just going to say, the officer’s then going to say, “get out of the car”, and ask you to submit to some field sobriety or some test. Your response should be?

Mike: “I’m not taking those tests.”

Teddy: You will be arrested?

Mike: At that point he has to make a decision whether he or she has probable cause to make the arrest, and if they inform you at that point, “step from the vehicle, you’re under arrest”, you have to do that, you must comply.

Teddy: All right. Your advice is don’t fight, don’t be rude, don’t be belligerent.

Mike: Don’t be chatty.

Teddy: Don’t be chatty. Anything you say can and will be used against you.

Mike: Absolutely.

Teddy: Your legal rights, your protections don’t begin when you decide you want to start questioning or mouthing off to the officer or questioning his or her knowledge of the law. Your legal rights and your protection begins when you call attorney Bowser.

Mike: Yes. The less said, the better.

Teddy: How do they get in touch with you again, sir?

Mike: bowserlaw.com, 1-888-5-BOWSER.

Teddy: Like I said, I hope you have a happy New Years Eve and that your phone doesn’t ring. I’m trying to put you out of business, you realize this?

Mike: I understand. I figure I have about 10 years left before self-driving cars.

Teddy: Your kids don’t need to go to college, right?

Mike: They’re there. That’s what I said, right around the time of the self-driving car I’ll be retiring.

Teddy: Poor guy comes in, he does his expert network, he helps inform us on laws, he also does some advertising, and I’m trying to put him out of business. That’s the kind of guy I am.

Mike: That’s okay, I want everyone to have a very, very safe holiday.

Teddy: Happy New Year and a safe New Year to you as well.

Mike: Thank you.

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