Field Sobriety Tests for Drug Use Behind the Wheel?

OPERATING UNDER THE INFLUENCE OF MARIJUANA

On September 19, 2017, The Supreme Judicial Court of Massachusetts ruled on the Commonwealth v. Gerhardt case. The court answered the following questions: 

1.     Whether police officers may testify to the administration and results of standard field sobriety tests in prosecutions for operating under the influence of marijuana as they do in operating under the influence of alcohol prosecutions?

 "No."  Police officers may not testify to the administration and results of field sobriety tests as they do in operating under the influence of alcohol prosecutions.  A police officer testifying to a defendant's performance on field sobriety tests need not be qualified as an expert, and such evidence may be admitted without satisfying the Daubert-Lanigan requirements.  The court held that field sobriety tests may provide information that is relevant to the question of a defendant's impairment.  A police officer may testify, as a lay witness, to his or her observations of the defendant's performance. The officer may not suggest, however, on direct examination that an individual's performance on a field sobriety test established that the individual was under the Influence of marijuana. Likewise, an officer may not testify that a defendant "passed" or "failed" any field sobriety test, as this language improperly implies that the field sobriety test is a definitive test of marijuana use or impairment. The unsettled state of the scientific research suggests that field sobriety test evidence neither should be treated as a definitive test of impairment nor excluded entirely from consideration by the finder of fact. Commonwealth v. Thomas, 476 Mass. 451, 464 (2017)

2.     Are the effects of marijuana consumption sufficiently within the common knowledge and experience of a lay person, such that a non-expert witness may offer opinion evidence whether a person is 'high' on marijuana? 

 "No."  A lay witness may not offer an opinion that another person is "high" on marijuana.  Where there is no scientific consensus on what, if any, physical characteristics indicate marijuana intoxication, no lay opinion can be admissible as common knowledge or understanding on that subject.  A lay witness may testify concerning a defendant's observable appearance, behavior, and demeanor, but may not offer an opinion as to the defendant's sobriety or intoxication.  See State v. Schories, 827 N.W.2d 659, 666 (Iowa  22 We caution the Commonwealth that "a prosecutor who elicits from a police officer his or her special training or 21  2013) (expert testimony preferred on cause of intoxication for substances other than alcohol); State v. Noback, 309 Mont. 342, 346 (2002) ("we are not persuaded that lay people are sufficiently knowledgeable about common symptoms of drug consumption . . . to offer lay opinion testimony"); State v. Bealor, 187 N.J. 574, 587 (2006) (court declined "to place lay opinion testimony regarding marijuana intoxication on the same footing as lay opinion testimony as to alcohol intoxication").  See also Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 330 & n.43 (2010) (lay witness may not testify that individual suffers from mental illness, but may testify to observed behavior).

3.     Whether a police officer may testify, without being qualified as an expert, to the effects of marijuana consumption and may offer an opinion that a defendant was intoxicated by marijuana?

"Yes."  A police officer may testify to observed physical characteristics of the driver such as blood shot eyes, drowsiness, and lack of coordination.  The officer is not permitted to offer an opinion that these characteristics mean that the driver is under the influence of marijuana.  "A lay opinion . . . is admissible only where it is '(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.'"  Commonwealth v. Canty, 466 Mass. 535, 541 (2013), quoting Mass. G. Evid. § 701 (2013).  In the alcohol context, "a lay [officer] . . . may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely."  Canty, supra at 544, citing Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012).

4.      May a juror rely on their own experience and common sense about the effects of marijuana as they may do in an operating under the influence of alcohol?

"Yes."  Jurors are permitted to utilize their common sense in assessing trial evidence.   As a general rule, trial judges routinely instruct jurors, and jurors are urged by counsel, "not [to] leave their common sense outside the jury room."  See Commonwealth v. Mutina, 366 Mass. 810, 820 (1975).  Jurors may use their common sense in evaluating whether the Commonwealth introduced sufficient evidence to satisfy its burden of proof.  See Commonwealth v. Cole, 380 Mass. 30, 35-36 (1980) (in context of criminal responsibility, jurors may rely on facts and circumstances surrounding crime to determine whether Commonwealth established defendant's sanity).  We rely on the judge's limiting instructions to inform jurors about the proper use of FST evidence.  See Commonwealth v. Jackson, 384 Mass. 572, 579 (1981).

Restitution and your ability to pay

COMMONWEALTH V. KIM HENRY

475 Mass. 117

FEBRUARY 10, 2016 – AUGUST 8, 2016

FACTS:  Defendant was a cashier for nearly 12 years at a Walmart store in Salem. Walmart video camera videoed defendant placing store items into bags without scanning them.

- November 2013 a complaint issued in Salem District Court alleging that the defendant stole property of Walmart of a value more than $250 pursuant to a single larcenous scheme on various dates between July 20- Sept. 4, 2013.

-April 2014 defendant admitted to facts sufficient to warrant a finding of guilty.  The judge continued her case without a finding for 18 months.  The defendant was placed on administrative probation for 18 months with no contact with Walmart.

-At a restitution hearing in Sept. 2014 Walmart stipulated their loss was $5,256.10. A different judge ordered restitution in that amount be paid.

-Oct. 2014 defendant filed a motion to revise and revoke the order of restitution. Allowed

- Nov. 2014 a restitution hearing before another judge. Walmart’s loss prevention manager calculated the sales price of the items stolen totaled $5,256.10.  The defendant testified that she was ineligible for unemployment, was unable to find employment, had no income, had been evicted from her apartment, and was staying with a friend, but not paying rent.  The Judge ordered that restitution in the amount of $5,256 be paid during the period of probation at a rate to be determined by the probation department. The defendant appealed, and the court allowed appellate review.

-May 11, 2015 a notice of violation issued for defendant’s failure to pay the required amount and a warrant issued for her arrest for failure to appear at the probation violation hearing on May 22.  The warrant was recalled on June 4, she stipulated to a violation at a hearing on July 15.  The judge restored her to the same terms and conditions of probation, also ordering restitution payments of $30 per month. Defendant made required monthly payments, on October 28, 2015 the day her probation was set to expire a second notice of violation for her failure to pay the balance of $5,176 was issued.  The probation hearing was continued in light of the pending appeal.

ISSUES:  1. Whether a defendant’s ability to pay should be considered by the judge in deciding whether to order restitution as a condition of probation and in deciding the amount of any such restitution.

2.  Where goods are stolen from a retail store, whether the amount of the victim’s actual economic loss for purposes of restitution is the replacement value or the retail sales value of the stolen goods.

HOLDING/RATIONAL:  1. In deciding whether to order restitution the judge should “consider whether the defendant is financially able to pay the amount ordered.”  Nawn,394 Mass. At 7, citing Model Sentencing and Corrections Act Sec. 3-601(d), 10 U.L.A. 322 (Supp. 1984), and ABA Standards Relating to Probation Sec. 3.2(d)(1970).  “The amount of restitution is not merely the measure of the value of the goods and money stolen from the victim… the judge must also decide the amount that the defendant is able to pay and how such payment is to be made.” Nawn, supra at 8-9.

The judge must make two findings in deciding restitution:  1. The judge must determine the amount of the victim’s actual economic loss connected to the crime. See McIntyre, 436 Mass. at 834.  The Commonwealth bears the burden of proof as to this finding.  See Nawn, 394 Mass. at 7-8.  The order of restitution may not exceed this amount.  See Commonwealth v. Rotunda, 434 Mass. 211, 221 (2001).      2.  The judge must determine the amount the defendant is able to pay.  See Nawn supra at 8-9.  Where a defendant claims that they are unable to pay the full amount of the victim’s loss, the defendant bears the burden of proving an inability to pay.  Commonwealth v. Porter, 462 Mass. 724, 732-733 (2012).

A judge is required to consider the defendant’s ability to pay when setting restitution because a judge may order restitution in a criminal case only as a condition of probation.  The collection of restitution is enforced by the threat of a criminal sanction for violation of a probation condition.  See Commonwealth v. Denehy, 466 Mass. 723,737 (2014).  A defendant can only be found in violation of a probationary condition where the violation was willful. The failure to make a restitution payment that the probationer is usable to pay is not a willful violation of probation.  See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010).  Burdening a defendant with risks by imposing restitution that the defendant is unable to pay violates the fundamental principle that a criminal defendant should not be subjected to additional punishment because of their poverty.  See Canadyan, supra; Gomes, supra at 212-213.

The judge erred in failing to consider the defendant’s ability to pay in determining the restitution amount, the judge’s restitution order was vacated and the case was remanded to the District Court for further proceedings.

2.  Where items are stolen from a retail store, the actual loss to the store is the replacement value of the items, their wholesale price, unless the commonwealth proves by a preponderance of the evidence that the items would have been sold had they not been stolen, in which event the actual loss would be the retail price of the items, United States v. Ferdman,779 F.3d. 

Here the theft occurred when the defendant’s friends brought items to her checkout line and the defendant scanned only some of the items. The judge reasonably could have inferred that had the defendant scanned all items her friends would have paid for them.  The judge did not err in finding that the store’s loss was the retail price of the items stolen.  

iCall the criminal defense team at Boyle & Carbone, P.C. to discuss how we can help try your case and what your financial obligations may be. (978) 342-3422 or www.bclawma.com.

What to expect when arrested for Operating Under the Influence

WHAT TO EXPECT FOR A FIRST OUI

So you have been arrested for an OUI, here’s what to expect:

You will be booked and held at the Police Station until someone comes to bail you out. The person bailing you out will need to pay $40 cash to release you.

The next day, or next business day, you will be arraigned in the Court where the offense took place. At the arraignment you will be called before the judge and charged.

If you are not able to afford and attorney one will be appointed to you. For which you will have to pay a fee depending on your income.  If you are able to afford an attorney depending on the circumstances it will cost around $3000.  

At that time your license will be suspended for 30 day if you submit to and fail a breathalyzer res, meaning your breath alcohol content was over the legal limit, which is 0.08%. If you do not take a breathalyzer test, which we recommend, your license will be suspended for 180 days or until your case is resolved.

After that 30 days or 180 days you may be able to go to the Registry of Motor Vehicles (RMV), and meet with a hearings officer to get your license reinstated.  This will cost $500.  Your local RMV may not perform hearings. You will have to go online, or call, to see where the closest Registry that does perform hearings is.

There may be several court dates to decide how to proceed with your case.

If you plead guilty, admit to sufficient facts that would support a guilty finding, or are found guilty of the OUI offense, your license will then be suspended again for another 45 days. You will be ordered to take a 90 24D Program, a 14-day out-patient program that meets once a week, for which there is a fee of around $750.00 depending on your income, and placed on probation, for which there is also a fee of $65.00 per month for at least 6 months. Other fees you will have to pay are: 

$50     Victim Witness Assessment

                                                                                                                                                 

$50     OUI Victims Assessment

                                                                                                                                                 

$250   OUI Sec 24D State Fee  

                                                                                                                    

$250   Head Injury Assessment

                                                                                                                                                                                                                                                                   HOW TO GET A HARDSHIP LICENSE also called a CINDERELLA LICENSE      

During the 45 days you may be eligible for a Hardship license, also called a Cinderella License from the Registry of Motor Vehicles. This license usually allows you to drive during a 12 hour block of time, for instance 7:00 am to 7:00 pm. In order to get a hardship license you will have to have another hearing at the RMV.  

To get a hardship license you must meet certain requirements:

1.     There cannot be any evidence that you have been operating during suspension.

2.     Documented entry or enrollment, on program letterhead, verifying that you are enrolled in a 9024D Program.

3.     A documented legitimate hardship.  You must provide a letter from your employer, on letterhead, which cannot be more than 30 days old.  The letter must state the applicant’s need for a hardship license and work hours.

4.     If self-employed you must present proof of self-employment such as a business certificate, tax forms indicating self-employment, or a current professional license.  You must also write a letter explaining your need for a hardship license and the hours requested.

5.     If you applying for a hardship license for school, or medical treatments you will need third party documentation of the hardship.

6.     Finally, you must provide proof regarding the availability of public transportation. This proof may be included in the employer’s letter, or you may use local bus/transit routes, or Mapquest etc.              

If you are granted the Hardship License you will have to pay another $50 to reinstate your license after the 45 days.

Contact the criminal defense team at Boyle & Carbone, P.C. if you or anyone else that you know is arrested and charged with OUI. (978) 342-3422 or contact us through our website: www.bclawma.com.