One of the means by which the police prosecute Operating Under the Influence charges throughout the United States are field sobriety exercises(also commonly known as field sobriety tests or “FST’s”). These include the one legged stand and the walk and turn.  The FST’s were developed decades ago, and they are only considered to be indicators and not scientific tests that result in a pass or fail.  Nevertheless, police officers in Massachusetts have been allowed to testify that in his/her opinion the operator has “failed” a test.  I routinely object to this kind of testimony, and some judges agree with me and some do not.  

In  a recent decision, Commonwealth v. Gerhardt, the SJC limits the testimony regarding FST’s with respect to Operating Under the Influence of Marijuana.  Police officers may  describe observations of a “driver’s balance, coordination, mental accuity and other skills required to safely operate a motor vehicle…”  However, they are not allwed to testify as to “whether the driver’s performance would have been deemed a ‘pass’ or ‘fail,’ or whether the performance indicated impairment.”

The Court went on to rule that “[b]ecause 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.”

If you are charged with OUI, contact an experienced trial lawyer at the Law Office of Michael J. Brothers at 508-944-3397.