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Marijuana impaired driving law will result in unfair criminal trials and license suspensions

Governor’s proposed marijuana impaired driving law will punish people who do not consent to providing bodily fluids for testing and will compromise trials

Governor Baker has recently announced that he will refile legislation aimed at cracking down on driving while under the influence of marijuana. While that is a worthwhile intention, portions of this bill will have the effect of making it easier to penalize people suspected (but not convicted) of driving under the influence of marijuana, regardless of whether they are actually impaired, and to compromise the integrity of driving under the influence trials.

The proposed legislation will require the RMV to suspend an individual’s driver’s license for six months if they refuse to cooperate in chemical testing for drugs. There already is a law requiring the RMV to suspend licenses for six months for people suspected of drunk driving who refuse breath testing, but this new proposal is not the functional equivalent. Breath testing involves breathing into a tube; chemical testing for marijuana, in contrast, is done through the analysis of blood, urine, or tears. The collection of any of these bodily fluids is much more invasive than a breath test and the prospect of having one’s license automatically suspended for six months for refusing this bodily intrusion is alarming.

When police suspect a person is driving under the influence but do not smell or alcohol or produce a breath testing reading to support this suspicion, they will call in an officer who has received training in drug impairment recognition. These officers are mislabeled “Drug Recognition Experts” (DREs) even though their training and the procedure that they use to supposedly confirm drug impairment does not warrant this description. DREs essentially do the exact same thing as any patrol officer would do with a suspected drunk driver (breath testing, balance exercises, observation) and then ask the driver to submit to a blood or urine test. (More on DRE training and procedures.) This legislation would force trial judges to confer DREs expert witness status at trial, which allows them to give opinions that would not be permitted by a regular witness. Normally a judge decides whether a witness meets the legal standard of expertise, but this legislation would mandate this finding. The bill would also empower police officers to seek electronic warrants for blood or urine evidence (assuming that the suspect has refused despite the prospect of a six month license loss). This appears to be designed to streamline the process and make it less cumbersome for officers to get these warrants, which will make these requests more frequent rather than being reserved for situations deserving of this level of intrusion.

The legislation also proposes a recognition of the effectiveness of the horizontal gaze nystagmus test (HGN), which involves the suspect following a small object from side to side with their eyes. The officer looks to see if the suspect jerks their eyes more than “normal.” Evidence of a “failed” HGN test is rarely allowed into evidence at a typical drunk driving trial because the officer doesn’t have the medical training to explain the significance of the increased eye jerking and the prosecution can’t be bothered to call a witness who has this training. It seems that the proposed legislation wants to force the courts to skip that pesky foundation requirement for such testimony and allow DREs (who will be conferred experts witness status regardless of whether they deserve it) to be allowed to provide this testimony.

This legislation has been named the “Trooper Thomas Clardy Law” in honor of a state trooper who was killed when struck by a driver under the influence of marijuana. The driver was successfully convicted because there are existing measures in place to prosecute people driving under the influence of drugs. The Governor says that this bill would strengthen the legal process, but it does the exact opposite.

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