Commonwealth v. Gerhardt, SJC-11967

• Decision Date: 19 September 2017
• Docket Number: SJC-11967
• Citation: 477 Mass. 775,81 N.E.3d 751
• Parties: COMMONWEALTH v. Thomas J. GERHARDT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 775

81 N.E.3d 751

COMMONWEALTH

v.Thomas J. GERHARDT.

SJC-11967

Supreme Judicial Court of Massachusetts, Worcester..

Argued January 6, 2017

Decided September 19, 2017

Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Steven S. Epstein & Marvin Cable, Northampton, for National Organization for the Reform of Marijuana Laws, amicus curiae, submitted a brief.

Michael A. Delsignore, Stoughton, & Julie Gaudreau, for National College for DUI Defense, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.¹

GAZIANO, J.

In this 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%.

By 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.

The 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.²

1. Background . a. Prior proceedings . Following 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Commonwealth v. Lanigan , 419 Mass. 15, 24-27, 641 N.E.2d 1342 (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 (2004).

"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 prosecutions?

"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 responses[?]

"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].

We 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.

b. Facts . The 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 police³ 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.

French 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 registration.

French 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.

French 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);⁴ 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.

Gerhardt 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, Gerhard did not remain upright on one foot, instead putting his foot down multiple times, and swayed. French determined that "the results of this test indicated that Gerhardt was impaired."

After administering these tests, French concluded that Gerhardt was under the influence of marijuana. French informed Gerhardt that he was not under arrest, but had him sit in the back of French's cruiser. Both passengers were asked to step out of the vehicle and were pat frisked. They, too, were told that they were not under arrest, and were placed in the back seat of the cruiser. A second trooper arrived at the scene. During a search of the vehicle, the troopers recovered two more marijuana "roaches" and a marijuana stem.

On April 24, 2013, a criminal complaint issued against Gerhardt charging him with operating a motor vehicle while under the influence of drugs, pursuant to G.L.c. 90, § 24 (1) (a ) (1), and traffic violations.

2. Discussion . a. Field sobriety tests . The FSTs, which were designed to detect alcohol impairment, are administered and evaluated in a standardized manner. The two tests primarily administered in the context of alcohol impairment are the WAT and the OLS, which are designed to assess an individual's balance, coordination, dexterity, ability to follow directions, and ability to focus attention on multiple subjects at the same time.⁵

In performing the WAT, the subject is directed to take nine steps, walking heel-to-toe, along a real or imaginary straight line. The subject then turns on one foot and returns in the same manner. An officer administering the WAT looks for eight specific indicators of impairment: losing balance while listening to the instructions, beginning before the instructions are finished, stopping to regain balance while walking, failing to walk heel-to-toe, stepping off the line, using arms to balance, making an improper turn, or taking an incorrect number of steps. Where the consumption of alcohol is at issue, there is an established correlation between...