In Massachusetts, Can You Be Arrested For DUI Based Solely on Observation?

Quinn: That’s 1-800-LAW-1010. is where the website is, Cantara. It’s Paul Harding from Martin, Harding and Mazzotti on the phone.

Cantara: Hey, Paul. What’s happening?

Paul: Hey, good morning guys. Not too much. Just trying to stay warm.

Quinn: Good luck.

Cantara: So if I hit a skunk and get pulled for speeding, can I go to jail?

Quinn: Well, the headline is when we’re watching Massachusetts laws, because we know that marijuana is gonna eventually be legal here. Recreationally legal here in…

Man 3: Yeah, so we’re wondering how it’s gonna be here.

Quinn: But last week in Massachusetts, a court ruled police can arrest you on drunk driving charges based solely on their observations. Is that unusual, Paul?

Paul: Well, you know, uniquely it does sound so but they can actually do it here for alcohol because you can refuse the breathalyzer. Bad things do usually, but you can refuse it. The officer can observe things like glassy eyes, slurred speech, unable to perform certain testing, and you can be convicted solely on that. So the…

Quinn: Eighty-eight in the right lane with a bag of coke and a gun. That’ll help.

Paul: That certainly…

Cantara: Like this guy in the story.

Paul: Yeah, no. Well, you know, of course, he admitted to smoking pot earlier in the day. You know, he had friends in the car but the truth be told here, you know, they don’t have a reliable breathalyzer-style test for marijuana. So it really is going to come down to what they’re calling drug recognition experts. They’re gonna train the police to notice but the truth, if they can smell marijuana it doesn’t mean that you are high on marijuana. Whether even alone in the car. Unlike alcohol, if you’re alone in the car, they smell alcohol, probable cause, they can kind of keep going down that road. So it’s gonna be a tougher thing to test. Now, arrest versus conviction. Even on that case, you know, arrested but not convicted, again because you’ve got to prove beyond a reasonable doubt that the glassy eyes, the slurred speech, the odd behavior was related to the drug use.

Quinn: The last two lines of the story, the lawyer argued at the trial that Davis, that’s the guy in question here, should not be found guilty on the drugged driving and gun charge because of how they got into his car, right?

Paul: Yeah, because probable cause is one of those funny things. So once they get the ability to kind of go a little further, now they can start going into the car, right? But it was improper, sort of, getting you to…if the drug or alcohol charges is improper, then they wouldn’t have found, in this case, the additional drugs and gun.

Quinn: So you mentioned that there’s no validated field sobriety test in terms of drug use. Are scientists working on this because that would really help, wouldn’t it?

Cantara: I Googled it quickly yesterday and just saw a bunch of stories about people trying to come, you know, together on it.

Quinn: Because what we’ve got is we’ve got the cop’s word versus your word and that just seems like it’s gonna clog up the system in my opinion.

Cantara: Yeah. This guy here, I’m glad they arrested this guy…

Quinn: Sure, sure.

Cantara: But, you know, like I asked at the very beginning if I hit a skunk and then a half hour down the road if the police officer smells skunk, you know, obviously he’s smarter than that, he’ll know, right. He’ll get the vibe. You know? So in theory, we’ve got to come up with a way and I don’t think it can be the blood test at the…

Paul: No.

Cantara: …police station because of the way marijuana is in your system. It’s weird.

Paul: Yup, yup. It may come down to kind of a swab, maybe a saliva swab test but they don’t have anything and so it’s private enterprise that’s working on something. If somebody can solve it, they’ll sell it all over the country because slowly but surely, all these states are gonna have recreational marijuana. It’s gonna be a problem and it’s gonna be really, at this point, super difficult to convict someone, even though the police may witness all these characteristics that would make them think that they were unable to drive.

Cantara: You know, that would be great and I know it’s, you know, a pipe dream but wouldn’t it be great if everyone was responsible with their marijuana?

Quinn: Yeah, you know…

Cantara: Seriously. Like wouldn’t it be great if you didn’t smoke it and drive?

Quinn: All the options. All the options, you know? I mean Uber, Lyft, taxis…

Cantara: We would save…police officers would have an easier time, we’d save taxpayer money, no one would die if we were just responsible.

Quinn: I had a big post with all that written out and I realized that it didn’t matter. They like their own car. It’s silly.

Cantara: I know.

Quinn: God.

Cantara: All right, well we’ll keep an eye on this. When’s the date for legal weed here in the state of New York? You got a date for us yet?

Paul: Well, I guess there’s an over-under, right? So everyone’s saying that this summer that this is gonna…right after this summer, they’re gonna go through all the procedural stuff so in the fall there’s hope that there would be a vote and…

Quinn: Wow.

Man 3: Sometime in August.

Paul: …if it goes the way they think then in 2020 is what people are thinking but, again, nobody knows.

Cantara: If I can only live long enough.

Quinn: I’ll need my cataracts in 2020.

Cantara: Oh, my glaucoma’s killing me. Thanks, Paul.

Quinn: All right, Paul, thanks so much for clearing this up.

Cantara: All right. 1-800…

Paul: All right. Talk soon, guys.

Cantara: 1-800-LAW-100. Paul Harding of Martin, Harding and Mazzotti.

Announcer: Quinn and Cantara, mornings on PYX 106.