Commonwealth v. Gerhardt - Field Sobriety Tests and Marijuana

Last month, the Massachusetts Supreme Court decided Commonwealth v. Gerhardt. In this case, the court considered the admissibility of field sobriety tests in cases where law enforcement suspects that a driver is under the influence of marijuana. Retired Judge Mary Celeste explains and offers her analysis of the case below:

The Massachusetts Supreme Court Splits the Baby on the Applicability of SFSTs to Marijuana Driving Impairment

Retired Judge Mary Celeste

Is the Massachusetts Supreme Court ruling in Gerhardt setting the stage for how the courts should treat standard field sobriety testing (SFSTs) for marijuana drug impairment driving cases? Federal courts and over half of states use the Daubert standard for the admissibility of scientific evidence. Massachusetts is a Daubert state (see Lanigan). Does this mean that other courts will look to the Massachusetts analysis on the admissibility of SFSTs in marijuana driving cases? The Gerhardt case is the first state supreme court case on this issue, so what can we glean from the decision?

Courts across the country are facing issues related to the applicability of SFSTs to marijuana impaired driving. The applicability of SFSTs to marijuana impairment raises a few legal issues. The first is that SFSTs were established to detect alcohol impairment, not marijuana impairment. Additionally, as the Gerhardt court noted, there are conflicting studies on the topic and no consensus in the scientific community to support their applicability.

In spite of this, the Gerhardt court stated, “The absence of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean that they have no probative value.” As such, the court “split the baby” and concluded that although a police officer may testify about their observations related to SFSTs, “[a] police officer may not suggest, however, on direct examination that an individual's performance on an {S}FST established that the individual was under the influence of marijuana. Likewise, an officer may not testify that a defendant ‘passed’ or ‘failed’ any {S}FST, as this language improperly implies that the {S}FST is a definitive test of marijuana use or impairment.”

The Court went even further and concluded that “[t]he fact that the {S}FSTs cannot be treated as scientific ‘tests’ of impairment means that evidence of performance on {S}FSTs, alone, is not sufficient to support a finding that a defendant's ability to drive safely was impaired due to the consumption of marijuana, and the jury must be so instructed.” {Emphasis added}.

What other factors should be considered in determining intoxication? Factors include errant driving, physical evidence, inculpatory statements, odor of marijuana, observations by law enforcement of physical characteristics, and toxicology reports offering blood nanogram levels of active THC, which are themselves under scrutiny. However, one need not look any further than the recent NHTSA report on marijuana-impaired driving to Congress and last year’s AAA Traffic Safety Foundation study to see that there are issues related to equating blood nanogram levels with drug impairment. If courts also begin to question toxicological findings, then Massachusetts may only be left with the DRE observations along with errant driving, physical evidence, odor, and inculpatory statements.

This may cause the “road” to conviction in marijuana driving cases to narrow in Massachusetts and perhaps in other Daubert states that look to Gerhardt. How does this case affect assessments of driving impairment caused by other drugs? A recent report authored by the Governors Highway Safety Administration and the Foundation for the Advancement of Alcohol Responsibility found that 43% of drivers had used a legal or illegal drug, compared to 37% who tested above the legal limit for alcohol. For the first time in U.S. history, driving under the influence of drugs has surpassed driving under the influence of alcohol. Does the Massachusetts decision on driving under the influence of marijuana using a Daubert analysis affect cases regarding driving under the influence of other drugs? Slowly, the answers will come.

Thanks to Judge Celeste for her submission.

North Dakota Case on Duties of Care for Designated Drivers

The Eighth Circuit recently handed down its decision in Hiltner v. Owners Insurance Company, a case from the U.S. District Court for North Dakota, about the duty of care that designated drivers owe to their passengers. In this case, a group of individuals left a party and departed in a vehicle, with two individuals riding on top of the back of the car, not in the car. The designated driver, the only sober individual in the group, urged the individuals to ride inside the car, but they refused. The designated driver then drove the group very slowly to its destination. Shortly before arriving, an intoxicated individual in the passenger seat pushed down on the driver's leg, causing the vehicle to speed up and the two individuals to fall off of the back of the car. The plaintiff required medical attention and therapy to recover. The trial court apportioned fault among the driver, the plaintiff, and the person who pushed the driver's leg down, giving the most fault (55%) to the driver, saying that the driver was most responsible because she volunteered to get the individuals home. The defendant, the driver's insurance company, argued that the lower court had impermissibly applied a higher standard of care to the driver because she was the designated driver, when North Dakota common law had failed to do so before and other jurisdictions affirmatively rejected such a position, saying that it would deter people from behaving responsibly. The Eighth Circuit agreed with that argument, saying that the lower court impermissibly ascribed too high of a degree of fault to the driver, and it vacated the lower court's judgment. You can read the full opinion in the case here.

Pennsylvania Case Regarding Warrantless Blood Draws

The Supreme Court of Pennsylvania recently decided Commonwealth v. Myers, a case about a blood draw of an unconscious individual under Pennsylvania's implied consent statute. In this case, the court affirmed the decision of multiple lower courts excluding the results of a blood draw because the blood draw was taken after the defendant was rendered unconscious by medical personnel and before the police could ask the defendant to submit to a chemical test. The court held that the blood draw violated the state's implied consent statute and that there were no other circumstances that would have justified the failure to get a search warrant, following the holding of the U.S. Supreme Court's 2013 decision in Missouri v. McNeely. You can read the opinion in the case here.

The Atlantic Article About Alcoholics Anonymous and Other 12-Step Programs

The Atlantic recently republished a long read column from April 2015 entitled "The Irrationality of Alcoholics Anonymous." The article is fairly lengthy but is also very engaging, combining personal accounts of people who have gone through 12-step programs with research about different forms of alcohol-use disorder treatment used throughout the world. (Finland's addiction treatment methods are profiled in depth, in particular.) The article calls into question whether 12-step programs are the most scientifically and socially effective methods of treating alcohol-use disorder. This will be of interest to readers not only because the first individual whose story is examined is an attorney, but also because of the high volume of AA members who are there by court order, often after an impaired driving conviction. (The article states that twelve percent of AA members attend meetings by court order.) You can read the article here.

Canada May Legalize Drunken Canoeing

A recent bill in Canada aims to change the law so that drunken canoeing will no longer be an impaired driving offense in the country. The pending legislation which defines "vessels" for the purpose of describing what kinds of methods of transportation are covered by impaired driving law proposes to exclude "a vessel that is propelled exclusively by means of muscular power." (Bikes are already excluded from impaired driving law in Canada.) This presents an interesting comparison with some states in the U.S., where it is possible to get a DUI for riding a bicycle--or even a horse. For more information on our neighbors to the north, you can read an article from the National Post here.

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Upcoming Courses at the National Judicial College (New Courses Added!)

The following courses and webcasts are offered by the National Judicial College in Reno, Nevada, in the coming year. A limited number of scholarships are available through generous funding from the National Highway Traffic Safety Administration. Please contact Katheryn Yetter at or (775) 327-8269 for more information.

Behind the Wheel: Today’s Traffic Offender (October 23-26; Reno, NV) The arena of traffic-related offenses is constantly evolving. Statistically, driving while under the influence of drugs as well as alcohol will be an issue that will appear with more frequency in traffic courts around the country. This course will delve into several issues that judges who hear traffic cases will experience this year, as well as offer insight into case issues and strategies from the prospective of the prosecutor, the defense attorney, the law enforcement officer, and the treatment provider. The course will also offer in- depth insight on how roadside drug detection is done as well as how the 12-step DRE protocol is conducted. Additionally, the course will offer a demonstration on the various types of drug and alcohol detection equipment that is available and the reliability of the instruments.

Properly and Effectively Adjudicating Drugged Drivers (October 30 - December 8; online; free) Unlike alcohol-impaired driving, drugged driving has fewer tools in the field to detect impairment and concentration levels in the body. Drugged driving cases require a judge to utilize a variety of judicial tools to effectively adjudicate these cases. In addition to the ability to determine which kinds of drugs an individual may be using, it is important to know how these drugs affect the individual and their ability to operate a vehicle. It is also imperative that a judge knows how to effectively craft sentences, which include treatment options, in order to provide a participant with the most beneficial mode of recovery.

FMCSA National Webcast Series (online webcasts; free)

  • Latest Appellate Opinions Regarding CMV/CDL Issues - December 6, 2017, 11 AM PST
  • Your Role in Commercial Motor Vehicle Safety - February 7, 2018, 10 AM PST
  • Partners in CMV Safety: The Traffic Court and the Administrative Adjudicator - April 4, 2018, 12 PM PST

Ethically Adjudicating CDL/CMV Cases for Traffic Judges (various dates; online; free) This webcast will answer: (1) What constitutes a “conviction” under federal regulations? (2) What does “masking” mean? (3) Why Federal law prohibits the “masking” of CDL violations? NJC’s webcast will provide you with guidance on handling these technical and troublesome cases. Dates vary by state.

Drugged Driving Essentials (May 22-24, 2018; Reno, NV) Unlike alcohol-impaired driving, drugged driving has no bright line test for impairment. Drugged driving cases require a judge to utilize a variety of judicial tools to effectively adjudicate these cases. In addition to the ability to determine which kinds of drugs an individual may be using, it is important to know how these drugs affect the individual, and may impair their ability to function. It is also imperative that a judge knows how to effectively craft sentences, which include treatment options, in order to provide a participant with the most beneficial mode of recovery.

Traffic Issues in the 21st Century (October 8-11, 2018; Reno, NV) Judges are facing more complex traffic issues as the law and technology progress. This course is designed to provide an overview of current traffic laws and technological trends and their applications to the judiciary. After this course, participants will be able to: improve public perception of the courts; manage and adjudicate fairly and efficiently; identify the behaviors that impair safe driving; explain the basic provisions relating to commercial motor vehicle laws and regulations; identify key issues associated with special driving populations, including younger and older drivers; summarize new technology and practices used in traffic law enforcement, adjudication and sentencing; and fully understand cultural diversity issues, including racial profiling.

Upcoming Events

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