Baker Wants Law Applying OUI Statutes To Marijuana

As the number of stores selling marijuana in Massachusetts grows, Gov. Charlie Baker on Wednesday announced he'll ask lawmakers to adopt the recommendations of a special commission that studied ways to deal with operating under the influence.

If the Legislature adopts the 19 recommendations from the Special Commission on Operating Under the Influence and Impaired Driving, a driver suspected of driving under the influence of marijuana who refuses to take a chemical test for impairment would lose their license for at least six months, the same penalty as for suspected drunken drivers who refuse to take a breathalyzer test.

The ACLU opposed this recommendation from the commission. No exact parallel to the breathalyzer yet exists for determining if someone is operating a vehicle under the influence of marijuana.

The announcement came the day after the governor filed a sweeping roadway safety bill and as retail marijuana stores begin to crop up across Massachusetts. Since late November, nine retail marijuana stores have opened their doors and regulators say they expect four to eight new stores opening each month.

The recommendations, many of which require legislative changes, were assembled into a bill which Baker said will touch upon detection of impaired drivers, interaction between police officers and drivers who are thought to be impaired, and how cases involving suspected impaired drivers are handled in the state's courts.

"Our administration views these improvements as the next deliberative step for the Commonwealth and the Cannabis Control Commission to continue implementing the legalization of recreational marijuana safely and responsibly and we look forward to working with our colleagues in the Legislature to pass this bill into law," Baker said.

Also among the group's recommendations is a proposal that the Legislature adopt a statute authorizing state courts to take "judicial notice" that ingesting the active component in marijuana, THC, "impairs motor function, reaction time, tracking, cognitive attention, decision-making, judgment, perception, peripheral vision, impulse control, and memory." The group also suggested that lawmakers amend the open-container law so it can apply to marijuana, meaning drivers could not have loose or unsealed packages of marijuana in an area of the car accessible to the driver.

The special commission, which was created as part of the 2017 law that also established the Cannabis Control Commission, also suggests amending the existing operating under the influence law so that, in court, the state would have to prove only that the driver was impaired to obtain a conviction.

"Current law requires the Commonwealth to prove, beyond a reasonable doubt, not just that a motorist was impaired by a substance ... but the category of the substance that caused the impairment," the commission wrote in its report. "This burden to prove the specific category — and not just impairment — does not take into account that motorists may be under the influence of multiple substances and fails to further the interests of justice."

Secretary of Public Safety and Security Thomas Turco said the governor's bill and the commission's recommendations "will help to bring Massachusetts into parity and ensure that the Commonwealth can protect its people from drivers who are high, just like we have long tried to protect our people from drivers who are impaired from alcohol."

The commission's recommendations also call for the Municipal Police Training Committee to expand training of drug recognition experts — the commission said the state's municipal police forces should have at least 351 DREs combined as well as other DREs at the State Police — and for the state's court system to allow DREs to testify as expert witnesses.

"It is absolutely essential that police officers stand ready to address the potential dangers posed by some motorists who choose to operate a motor vehicle while impaired after consuming marijuana," said Brian Kyes, Chelsea police chief and president of the Massachusetts Major City Chiefs. "These proposals ... ensure that state and local police officers will be equipped with the proper tools and required training to identify and detect impaired operators to keep our roadways safe."

The Special Commission on Operating Under the Influence and Impaired Driving included law enforcement officials, civil rights advocates, attorneys, transit safety activists and doctors. The group also recommended that it, or a similar commission, be kept active in order to "study, review, and evaluate the reliability of oral fluid and other testing, as well as the practical availability of experts."

Many of the commission's 19 recommendations were adopted unanimously by the commission members, but the American Civil Liberties Union objected to a handful of them.

Last year, a Department of Public Health study found that nearly 35 percent of adults who reported using marijuana in the past 30 days also reported driving under the influence of marijuana. DPH said baseline data suggest that about 7 percent of all adults drove under the influence of marijuana in the past 30 days and that about 12 percent of all adults rode with a driver who was under the influence of marijuana.

With additional reporting from the WBUR Newsroom