It is not illegal to smoke marijuana and drive in Massachusetts. Yes, you read that right.

Using or having under an ounce in your possession is fully legal as of 12/15/16, and has not been a crime since decriminalization in 2008 .

Only being “impaired” while driving is illegal. It is only illegal to smoke marijuana (or take any drug) and get behind the wheel IF you are legally impaired, or “too high to drive”.

But proving impairment for marijuana, cocaine, heroin, prescription drugs, or any substance that may impact your ability to safely operate a motor vehicle is not very easy for the Commonwealth.

And the cops will charge you if they suspect you were driving while high on any substance, which could be based on your driving, your manner and appearance, and any drugs or substances they may find when they pulled you over.

The good news is that I have won almost all of the OUI drugs cases I have fought.

There are many ways to beat these charges. If you’ve been arrested or giving a criminal citation for OUI drugs, give me a call now and I can quickly evaluate your case over the phone in a legal defense consultation.

Proving Legal Impairment is Very Difficult With Drugs

There is no legal equivalent of blood alcohol content like the .08% BAC for legal alcohol impairment of drugs. For marijuana, some states have a 5ng/ml level of THC in the bloodstream (and some have ZERO tolerance) but Massachusetts has no such legal standard as yet.

There are blood tests that detect marijuana, assuming the police can legally take a blood sample from you, or you were hospitalized from the incident. But even then, not all tests make the distinction between active THC (Hydroxy), and something you could have taken weeks before (Carboxy) which stays with you but has no psychoactive effect.

And no other prescription drugs or illegal drugs have any level that is being used in courts to establish what it means to be high, or too high to drive.

How We Beat OUI Drugs Charges

There are many reasons

We can fight these cases based on all the regular reasons I beat OUI alcohol charges, including:

• The legality of the stop
• How the field sobriety tests were administered
• Challenging any other evidence against you in the course of the police investigation
• whether the drugs are illegal or banned while driving,
• whether the Commonwealth can actually prove beyond a reasonable doubt that you were legally too high to drive a car.

I’ve also had cases where the client had accidentally taken too much of a new prescription, and been able to get the charges dismissed.

There is A LOT we can work with, which is why these cases are so great to take to trial, and often very win.

OUI Drugs Laws in Massachusetts

Operating under the influence of drugs is the same criminal charge and statute as drunk driving.

For a drunk driving charge, they only have to prove that you were drunk, and driving on a public road.

For an OUI drugs case, they have to also prove that:

1. You took drugs;
2. That those drugs are in the category of banned substances while driving; and
3. Those drugs caused your driving to be legally impaired.

That is not an easy case for the Commonwealth to make. They have to first establish that you took something, which, if you don’t admit, and there is no evidence of in the car, is hard to prove.

They can ask you to take the same field sobriety exercises they give in drug driving stops, but you don’t have to take them and shouldn’t. (If you did and the cop said you failed, that’s ok, don’t worry, we can often challenge it if need be.)

If they find some drugs, they will have to test it and establish that it is on the banned substance list. Many prescription drugs are simply not illegal to take while driving because they aren’t on the list.

Penalties for OUI Marijuana or OUI Drugs

The penalties are the same are for a typical OUI alcohol, except you don’t have to worry about any breathalyzer refusal penalties that could add to the criminal penalty.

For a first offense, if we plead the case out or lose at trial, the penalties are typically:

• a Continuance without a finding (CWOF), which is not a guilty plea, but an “admission to sufficient facts to find you guilty”.
• You will have to go to a drug education class for 16 weeks.
• Fines and court fees up to $2500.
• Loss of driver’s license for 45-90 days. If you are under 21, it is a 210-day suspension.
• Probation for a year.
• Most of the time, you are eligible for a hardship license.

What is a Drug Recognition Expert (DRE?)

A drug recognition expert is a police officer, with specific training to recognize drug use and impairment in people. There are currently about 100 certified DREs in Massachusetts. They are trained to recognize the symptoms that include droopy eyes, red eyes, manner of speaking, and other behavior.

The science behind this certainly has limitations and includes a lot of subjective criteria.

But the rules for drug recognition evaluation are very specific. It must be carried out at the police station, and documented explicitly. The DRE evaluation takes about an hour and includes 12 tests of physiological and mental test criteria. And we can challenge those documents and that evaluation in court. Officer’s trained in administering DRE tests aren’t medically trained, and the testing results are  known to have very high false positives. For marijuana intoxication evaluations by DREs, a recent study found a false positive rate for marijuana intoxication to be from 38 to 68 percent. That is enormous, and is more than enough reasonable doubt to make the entire testing process and criteria invalid.

You should also know that you don’t have to agree to a DRE evaluation. Like field sobriety test, it is your right to refuse, and not have that fact used again you in court. In almost all cases, it is not to your legal advantage to go through the test, so you should refuse the evaluation.

If you are accused of an Operating Under the Influence of Drugs Offense in Massachusetts, please give us a call and we’ll let you know what we can do to potentially beat your case.

So please call me today to talk about your case. After hearing the specific details of your situation, I’ll give you my opinion on what we can do to win the case and protect your rights in court.

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