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Marijuana and Operating Under the Influence

Marijuana is a hot topic in the news these days. With more marijuana stores being approved to open and the legalization of marijuana there seems to be a new focus upon marijuana. And with this increased focus by the general public, there is also an increased focus by police and the courts. And one of the biggest areas of focus is how police and courts are going to deal with potential operating under the influence charges and marijuana use.

Just recently the Massachusetts Supreme Judicial Court made its thoughts known concerning the effects of marijuana and other drugs on drivers. The SJC held that people can now be arrested on drugged driving charges based solely on the observations of a police officer. The court ruled that if based on observation, there are clear signs of impairment to the driver and the car smells like pot, police have the right to place the driver under arrest. To clarify the ruling the SJC focused on the fact that there is no breathalyzer exam for drugged driving, and therefore officers must use their best judgment when deciding whether a driver was impaired while smoking marijuana.

Currently the Commonwealth of Massachusetts has certain officers and troopers trained in drug recognition. These individuals are known as Drug Recognition Experts or DREs. They have been provided additional training to conduct certain sobriety testing to determine whether an individual may be under the influence of drugs. The position is essentially a specially trained officer equipped with extra impairment training and knowledge of different drugs and their effects on the human body.

In most circumstances concerning an OUI-Drug charge, a driver will be pulled over by a police officer. The officer will make a determination that the driver is driving impaired due to marijuana or drugs. The driver will be charged with an OUI-Drugs, which encompasses everything from marijuana to fentanyl. The officer will then call a DRE to come to the station to make an assessment. The DRE will ask the driver whether he will consent to an optional 12 step assessment, which will focus upon whether the DRE determines the individual was in fact impaired based upon the DRE’s training. The assessment includes testing to determine the body’s reaction to certain stimuli and a request that the driver provide a urine sample to be tested. The DRE will then make a recommendation to the police officers at the station and will draft a report to be provided to the District Attorney’s office.


If you have been arrested and charged with OUI-Drugs contact Lake Shore Legal. With an increased focus by police on marijuana use, the amount of these charges is certainly about to increase. Our attorneys understand how to attack the DRE assessments and findings, as a DRE is not a medical professional. Accuracy of a DRE assessment has not been scientifically studied, and therefore is ripe for challenge. Additionally, OUI-Drug charges are routinely based upon circumstantial evidence. Prosecutors currently must prove their case beyond a reasonable doubt based upon a police officer’s observations and potentially the DRE assessment. There is no BAC level for a prosecutor to argue in front of a judge or jury. If you or someone you know has been charged with OUI contact Lake Shore Legal today. (508) 943-7800;

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