Operating Under the Influence of Marijuana after the Passage of Marijuana Legalization: Know Your Rights
With the passage of Massachusetts 2016 Ballot Question 4 it’s expected that police will make more arrests for operating under the influence of marijuana because more arrests for this charge have occurred in other states after passing their own marijuana legalization laws.
It is important to know when you can be lawfully stopped. Police can stop your vehicle if they have a reasonable suspicion that you have committed a driving infraction. A reasonable suspicion is a small amount of evidence. It requires more than a hunch, but less than probable cause. It’s also important to know that police can run your plates for no reason whatsoever, and when doing so can access any past criminal record that you may have and take that into unmentioned consideration as a basis to stop you.
After a stop, police can order you out of your vehicle if they have a reasonable suspicion that you may be under the influence of a drug (or alcohol). Odor of drugs or alcohol, bloodshot/glassy eyes, slurred or delayed speech, and delayed reactions are common components of the reasonable suspicion calculus.
If a police officer believes that there is a reasonable suspicion that you are under the influence he or she can order you out of your vehicle to perform field sobriety tests. There is no penalty for refusing these tests (the same is not true with a breath test taken at the police station after an arrest for operating under the influence of alcohol). You have a right to refuse to do them. You do not need to provide an explanation as to why. You can still be arrested if you refuse, but a refusal to do the field tests will leave the Commonwealth with less evidence if you are ultimately arrested and charged. Police will make you think you have to do field tests. You do not. They will tell you that you have to do them. You do not. They will not tell you (and are not legally required to tell you) that you have a right to refuse to do them, that they will be the sole judge of whether you pass or fail, and that you may be arrested after doing them. My advice is to always refuse to do the field sobriety tests.
There is no breath test for operating under the influence of marijuana, but as legalization laws pass there is a race to create such a test. The current absence of a breath test for marijuana does not mean that you do not have to worry about losing your license if charged with operating under the influence of marijuana (or any other drug). Police can and frequently do petition the RMV to suspend the licenses of people who have been charged with operating under the influence of marijuana (as well as other drugs and liquor) under Massachusetts General Laws Chapter 90 Section 22(a) for “immediate threat”. The RMV has a very low standard of proof to find that a person constitutes an immediate threat and are not bound to what happens in the criminal case. The immediate threat suspension is indefinite and is independent of the court suspension. The driver loses license until RMV or the Board of Appeals or a Superior Court judge says driver is no longer a threat. It’s possible, depending on the circumstances, to get the license reinstated once the case is disposed. Sometimes hearings officers will deny the return of the license and make the driver do a safe driver’s course, a substance abuse evaluation or provide proof of clean drug/alcohol tests before reconsideration. It is important to have legal counsel at these hearings.
It’s important to know your rights. Keep in mind an arrest is not a conviction. If you are arrested you need an experienced Northampton criminal defense attorney who stays on top of the changes in the law, who will fight and help you figure out what’s best for you. Immediately contact the Law Offices of Jesse Adams.