With marijuana being legal in Massachusetts, there have been an uptick of crashes caused by drivers under the influence of the drug. While we often talk about the dangers of drunk driving, drugged driving, can and often does result in serious personal injury or even death. However, as our injury lawyers can explain, the difficulty is often proving the at-fault driver was in fact under the influence of marijuana at the time of the crash.
When a person is suspected of drunk driving, the police can investigate and ask the suspect to perform a series of standardized field sobriety tests (SFSTs). If the police have probable cause to arrest the suspect on suspicion of drunk driving, they will take the suspect back to the police station or the state police barracks and have the suspect take a breath alcohol test.
As our Boston drugged driving accident lawyers can explain, when a person is given a breath alcohol test, it will give a result that indicated suspect’s blood alcohol concentration (BAC) in terms of grams of ethanol per hundred milliliters of blood. The national limit for a driver’s BAC is 0.8. This means that driver who has a BAC of above 0.08 grams of ethanol per hundred milliliters of blood will be per se intoxicated. Generally speaking, if the prosecutor manages to get the breath alcohol test score admitted into evidence, that will probably be sufficient to obtain a criminal conviction for operating under the influence (OUI).
In the case of a Boston car accident involving a DUI, if the defendant is convicted of a crime, this can make it much more difficult for his car insurance company to deny liability. This is true whether we are talking about a guilty plea or a finding of guilt at trail by a judge or jury.
The issue in cases where defendant was allegedly driving under the influence of marijuana is that there isn’t a field sobriety test for that and when you take a suspect back to the police station, there is no breath test for marijuana. The suspect can be administered a urine test or blood test, but even if defendant tests positive for use of marijuana, this will only show that defendant has used marijuana at some point in the last month, but not necessarily at the time of the Boston drugged driving crash.
According to a recent news article from NECN, the Supreme Judicial Court, our state supreme court, has just ruled that standardized field sobriety tests cannot be used as scientific evidence that someone is under the influence of marijuana. These tests were developed by the National Highway Traffic Safety Administration (NHTSA) starting in the 1970s with research in the lab, and on the scene of actual traffic stop. They found which tests worked better and measured the reliability. This resulted in three tests being selected at the only effective ones for use a roadside OUI stop and in court. The court has also recognized these tests, and the theory that a person who fails all three of the test has a high probability of a blood alcohol content of .10 or higher. This is higher than the state legal limit of .08.
The court has held that there has been no showing that these standardized field sobriety tests have been determined to be reliable for determining if a person was under the influence of marijuana and the science that is available is inconclusive. The court did note that the observations of taken from the standardized field sobriety tests could be admissible in court to show evidence that person was under the influence of marijuana.
This all applies to criminal trials, but in a civil trial following a serious or even fatal car accident in Boston where marijuana intoxication was involved, these cues of intoxication may also be helpful in establishing liability. Even if it is not scientific evidence of intoxication, the odor of marijuana, red, glassy or bloodshot eyes, delayed reaction, slurred speech, and various other observations can all be evidence just as they can be in a criminal case. There is a also a much lower standard of proof in a civil case.
In a criminal case, defendant must establish guilt beyond a reasonable doubt, this is not an actually number from 1 t0 100, but it means the jury must be as certain as anyone can be of another’s guilt. In a civil case, the standard is that a defendant must be more likely than not to be liable for plaintiff’s injuries. This standard is known as a preponderance of the evidence. There is a mathematical standard here of 51 percent, though in practice, it often takes far more than that to actually convince a jury of defendants liability.
The best thing a plaintiff can do is to speak with an experienced Boston car accident lawyer who has the experience and willingness to take these cases to court when necessary and will do everything reasonable to get plaintiff the best result possible within the confines of the situation. This is not to say there is any guarantee of success, but having someone on your side who is willing to fight for your right to a full and appropriate financial recovery will significantly increase your chances of a successful outcome.
Researches and police are working on ways to determine if a suspect has recently used marijuana and police in Massachusetts are now testing a new method that involves officers taking a mouth swab of suspects and then testing that swab for the presence of various chemicals found in marijuana. While this is still in the testing phase, police hope that this test will be come as standard as breath alcohol testing machines in the near future. Drugged driving accidents have become a serious problem in the Commonwealth and the police need more tools to crack down on these cases and save lives.
If you are injured in an accident in Massachusetts, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — (617) 777-7777.
Mass. SJC: Roadside Drunken Driving Tests Not Valid for Marijuana, September 19, 2017, by Ally Donnelly and Douglas Moser, NECN
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