With the legalization of marijuana in Massachusetts and Maine and the decriminalization of possession of small amounts of marijuana in Vermont and New Hampshire a new legal front has been established in determining how to measure an individual’s level of impairment when operating a motor vehicle. The lack of specific scientific evidence as to how to detect impairment is one of the major reasons Vermont governor Phil Scott vetoed a bill to legalize possession of marijuana last year and continues to be a huge concern for Vermont law enforcement in their ability to arrest individuals for driving under the influence of marijuana or other drugs.
The Massachusetts Supreme Court decision in COMMONWEALTH V. GERHARD has now limited police officer’s ability to use the standardized field sobriety tests as evidence of drug impairment, tests which have long been validated to detect alcohol impairment.
“The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs.”
As has been litigated in Vermont Courts (and recently won by Attorney Evan Chadwick in a drugged driving case), a law enforcement officer who is not a certified Drug Recognition Expert should not be able to testify as to their opinion of impairment when investigating an individual for DUI-Drugs . The Gearhardt decision adds an extra layer of protection for these types of investigations by limiting what evidence can be presented on the roadside investigation.
Attorney Evan Chadwick of Chadwick Law, traveled to Alpharetta Georgia in order to participate in a vigorous three day training regarding the process and science behind a Drug Recognition Evaluation that accompanies many Vermont DUI prosecutions.
Attorney Chadwick received a thorough overview in the 2015 NHTSA/IACP DRE Pre-School & DRE 7-Day training curriculum that officers attend nationwide. Emphasis was made on analyzing a DRE case file, to include, the DRE Face Sheet & DRE Narrative report, how to compare the two with one another and with the Drug Symptomology Chart, as well as emphasis on each specific step involved in a 12-step DRE evaluation. Time was also be spent covering the IACP’s rules and regulations that officers are required to follow in order to become certified and to recertify as a DRE.
“The training I received was essential in furthering my understanding of the science behind a Drug Recognition Evaluation and what errors officers make in conducting these evaluations”, stated Attorney Chadwick. “It is a training that anyone who is serious about defending DUIs in Vermont needs to take in order to best serve their clients”.
An officer needs probable cause in order to be to search a vehicle without the owner’s consent. Despite Vermont decriminalizing the possession of under an ounce of marijuana in 2013, the smell of marijuana alone still grants law enforcement the probable cause they need to request a search. This reality was recently reinforced in Judge Helen’s Toor’s district court decision denying a Rutland man’s motion to suppress the evidence seized as a result of the search. “Vermont’s decriminalization statute explicitly states that it leaves unchanged marijuana’s ability to furnish probable cause. The national consensus is that the mere smell of marijuana supports probable cause.” Although still currently good law in Vermont, Toor’s decision has since been appealed to the Vermont Supreme Court.
Further clarification as to the sniff test may be supported by recent decisions in Massachusetts and Colorado, that have found that the oder of marijuana alone does not give an officer probable cause. The Massachusetts case is especially important to Vermont as at the time of the decision, possession of one ounce or less of marijuana was considered a civil infraction in Massachusetts as it is considered in Vermont. “[W]e no longer consider the “strong” or “very strong” smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present. Commonwealth v. Rodriguez.
The wild card in the entire calculus is the fact that it is all but assured that Vermont will legalize recreational marijuana use in the near future. In 2017, a legalization bill made it all the way to Governor Phil Scott’s desk before he vetoed it, stating that further study was needed before he signed the bill into law. Thus, if legalization does occur, the Vermont courts may look more towards the recent decisions in Colorado to guide them in reviewing the smell test as a sole basis for a search. “Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana — but not specific amounts — can reveal only the presence of ‘contraband,’”. Colorado v. McKnight
If Vermont does pass a marijuana legalization bill, expect further challenges to law enforcement’s ability to decipher criminal behavior from that of legal, including, but not limited to their ability to tell the difference between a legal amount of marijuana and that which surpasses the criminal threshold.