Supreme Judicial Court of Massachusetts, Worcester
Heard: January 6, 2017.
received and sworn to in the Worcester Division of the
District Court Department on April 24, 2013. A motion for a
hearing to challenge the admissibility of certain evidence
was heard by Andrew M. D'Angelo, J., and questions of law
were reported by him to the Appeals Court.
Supreme Judicial Court granted an application for direct
Rebecca A. Jacobstein, Committee for Public Counsel Services,
for the defendant.
Michelle R. King, Assistant District Attorney, for the
S. Epstein & Marvin Cable, for National Organization for
the Reform of Marijuana Laws, amicus curiae, submitted a
Michael A. Delsignore & Julie Gaudreau, for National
College for DUI Defense, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
case we are asked to consider the admissibility of field
sobriety tests (FSTs) where a police officer suspects that a
driver has been operating under the influence of marijuana.
Police typically administer three FSTs -- the
"horizontal gaze nystagmus test, " the "walk
and turn test" and the "one leg stand test" --
during a motor vehicle stop in order to assess motorists
suspected of operating under the influence of alcohol or
other drugs. These tests were developed specifically to
measure alcohol consumption, and there is wide-spread
scientific agreement on the existence of a strong correlation
between unsatisfactory performance and a blood alcohol level
of at least .08%.
contrast, in considering whether a driver is operating under
the influence of marijuana, there is as yet no scientific
agreement on whether, and, if so, to what extent, these types
of tests are indicative of marijuana intoxication. 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. In
addition, other research indicates that less frequently used
FSTs in the context of alcohol consumption may be better
measures of marijuana intoxication.
lack of scientific consensus regarding the use of standard
FSTs in attempting to evaluate marijuana intoxication does
not mean, however, that FSTs have no probative value beyond
alcohol intoxication. We conclude that, to the extent that
they are relevant to establish a driver's balance,
coordination, mental acuity, and other skills required to
safely operate a motor vehicle, FSTs are admissible at trial
as observations of the police officer conducting the
assessment. The introduction in evidence of the officer's
observations of what will be described as "roadside
assessments" shall be without any statement as to
whether the driver's performance would have been deemed a
"pass" or a "fail, " or whether the
performance indicated impairment. Because the effects of
marijuana may vary greatly from one individual to another,
and those effects are as yet not commonly known, neither a
police officer nor a lay witness who has not been qualified
as an expert may offer an opinion as to whether a driver was
under the influence of marijuana.
a motor vehicle stop, Thomas Gerhardt was charged in the
District Court with operating a motor vehicle under the
influence of marijuana, in violation of G. L. c. 90, §
24. Gerhardt filed a motion for a
Daubert-Lanigan hearing, seeking to
challenge the admissibility of evidence concerning his
performance on FSTs conducted after the stop. See
Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 592-595 (1993);
Commonwealth v. Lanigan, 419 Mass.
15, 24-27 (1994) . After an evidentiary hearing, a District
Court judge reported four questions to the Appeals Court,
pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501
"1. Whether police officers may testify to the
administration and results of standard [FSTs] in prosecutions
for [o]perating [u]nder the [i]nfluence of [m]arijuana as
they do in [o]perating [u]nder the [i]nfluence of [a]lcohol
"2. Are the effects of marijuana consumption
sufficiently within the common knowledge and experience of a
lay person, such that a non-expert witness may offer opinion
evidence whether a person is 'high' on marijuana?
"3. May a police officer, who has not been qualified as
an expert witness, testify to the effects of marijuana on a
person such as bloodshot eyes, lack of coordination and/or
balance, reaction times, slow speech, paranoia, or relaxed
"4. May a juror rely on their own experience and common
sense about the effects of marijuana as they may do in an
[o]perating [u]nder the [i]nfluence of [a]lcohol
prosecution?" [footnote omitted].
granted Gerhardt's application for direct appellate
review. After oral argument, we remanded the matter to the
District Court judge who had reported the questions for
further findings on eleven specific issues. Following the
return of the judge's findings, we again heard oral
argument in the matter.
parties submitted a statement of agreed facts as to the
evidence that the Commonwealth would seek to present at
trial. On February 13, 2013, at approximately 12:20 A.M.,
Trooper French of the State police observed a blue Suzuki Grand
Vitara motor vehicle traveling south on Route 146, without
the rear lights on. French followed the vehicle as it left
Route 146 at exit 8. He activated his emergency lights and
stopped the vehicle on Elmwood Street in Millbury.
approached the vehicle on the passenger side. There were
three occupants in the vehicle: the driver, later learned to
be Gerhardt, and two passengers. French saw smoke inside the
vehicle, and, as soon as the front passenger window was
lowered, he detected "the distinct odor of burnt
marijuana." He also saw a large amount of what he
identified as cigar tobacco on the floor, and a cigar slicer
on the key ring in the ignition. The trooper asked the driver
for his driver's license and registration. Gerhardt
handed him the license and said that he did not have his
asked Gerhardt how much marijuana was in the vehicle.
Gerhardt responded that there were "a couple of
roaches" in the ashtray; he pulled two largely-consumed
rolled cigarettes from the ashtray and handed them to French.
French then asked when the occupants had smoked marijuana.
One of the passengers responded that they had smoked about
twenty minutes previously. Gerhardt said that it had been
about three hours earlier. French walked to the driver's
side of the vehicle and noticed that the light switch was in
the "off" position. He asked Gerhardt how much he
had smoked. Gerhardt responded that he had smoked
approximately one gram of marijuana.
then asked Gerhardt to step out of the vehicle to perform
FSTs. French administered a number of FSTs, including the
horizontal gaze nystagmus test (HGN); the nine-step walk-and-turn
test (WAT); and the one-leg-stand test (OLS) . French also
asked Gerhardt to recite the alphabet from D to Q and to
count backward from seventy-five to sixty-two.
had no nystagmus indicators, and was able to recite the
requested portion of the alphabet and to count backwards. He
did not perform the WAT as instructed, even after several
explanations and a demonstration by the trooper in response
to Gerhardt's first answer in the negative when asked
whether he understood the instructions. Rather than standing
heel to toe, with his right foot in front and his left toes
touching his heel, as he had been shown, Gerhardt moved his
feet so that they were side by side; he also did not turn
around as instructed. French determined that "the
results of this test indicated that Gerhardt was
impaired." The trooper then provided instructions and
gave a demonstration of the OLS test, and Gerhard indicated
that he understood. In performing the test, however, ...