In Massachusetts, you can be charged with an OUI if you are suspected of driving and being under the influence of any drug, including prescription drugs, marijuana/pot, cocaine, ecstasy, heroin, et. al.
It is against the law to be impaired or drive while high on any substance. If you have illegal drugs in your possession, the police may also charge you with drug possession.
Under Massachusetts laws, an Operating Under the Influence of Drugs charge is very similar to the charge of Operating Under the Influence of Intoxicating Liquor (i.e., Alcohol). The arrest process, penalties, and legal defense strategies are similar to a more typical OUI/DUI alcohol, aka, drunk driving charge.
We defend and fight lots of OUI drugs cases, and have won almost all of them.
We can fight the case and challenge the facts of the police conduct, the legality of the stop, proving vehicle operation, and other factors that come up in these cases. Give me a call and I’ll let you know exactly how it could work in your specific situation.
In order to convict you, the state must establish:
- That you took drugs
- The drugs are legally in the category of banned substances (marijuana, heroin/opiates, stimulants, depressants)
- The drugs caused you to be impaired;
- While operating a motor vehicle;
- on a public way in Massachusetts
In the case of an OUI Drugs stop, it is best to not perform any roadside tests, just as with an OUI Alcohol case. You should politely refuse any such request for field sobriety tests, and tell the police officer that you wish to speak with an attorney. You should not make any other statements, and not answer any questions other than your name and address.
Operating Under the Influence of Drugs – Penalties
The penalty if found guilty is the same as a standard OUI, but you usually don’t have an immediate license suspension related to a breath test refusal or failure if you weren’t asked to take the test.
For a typical 1st offense OUI drugs plea disposition, the penalties will be:
- A plea of Continuance without a Finding (CWOF). It is similar to, but not technically a guilty plea. (More info on a CWOF.)
- Fines and court fees totaling $2500 or more, and 5 points on your insurance.
- Probation for one year. It could be supervised, or unsupervised, and your out-of-state travel may be restricted.
- A 16 week alcohol-drug education (DAE) at your expense.
- License suspended for 45 to 90 days. If under 21, the license suspension is 210 days.
- Eligible for a hardship license right away, in most cases.
OUI Drugs Defense Strategies
There are many opportunities for us to attack each and every element of the charge. Since a breathalyzer or breath test machine isn’t applicable to drugs, it can be much more difficult for the state to prove their case.
In particular, an OUI case involving prescription drugs is particularly difficult for the state to prove, since they need expert testimony from a Drug Recognition Expert (DRE) to even establish that the drug you took is against the law. Many prescriptions drugs are not specifically listed and categorized according to the applicable Massachusetts criminal laws.
And sometimes the DRE and prosecutor can’t even come up with a coherent theory of what substance the defendant is allegedly impaired by, and we can get the entire take dismissed.
DRE evaluations are known to have a high rate of false positives, particularly for marijuana. One researcher found a false positive rate in these evaluations ranging from 38 t0 68 percent.
I’ve had cases where the prosecutor could not establish that a prescription drug was illegal to take and operate a motor vehicle. Many prescription drugs fall into this category – sedatives and sleep aids, such as Ambien or other unclassified prescription drugs – Xanax, Neurontin, Lamictal, Topamax and more. In these situations, the judge must dismiss the case.
OUI Marijuana Defense
Specific to marijuana impairment charges, there are a variety of defenses we can use in Massachusetts. The courts are not sympathetic to police officers stopping and searching a vehicle just because of the alleged smell of marijuana. Since marijuana is legal as of 12/15/16, there is no evidence of a crime. So unless there is specific evidence of impaired driving, the smell of weed doesn’t mean anything at all.
And proving impairment by THC, the active ingredient in marijuana, is very difficult for the prosecution. Field sobriety tests that measure physical balance and coordination are still used and valid, but cannabis impairment doesn’t affect people the same way alcohol does, or impair one’s driving to the same degree.
Many studies show virtually no proven connection between usage and traffic accidents or fatalities. And there is no question that driving while “high” on marijuana is substantially less dangerous than alcohol.
If you’ve been arrested on an OUI Drugs in Massachusetts, take advantage of my free consultation. I’ve beaten many operating under the influence of drug cases before, and my extensive experience with all types of MA OUI and criminal cases will help me protect and defend your rights and freedom. I’ll also handle any illegal drug possession charges as part of a flat fee. Call me at (781) 380-7730 for a free case assessment and defense strategies.
Russell Matson, Attorney at Law