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).
