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).