to try and predict effects based on blood THC concentrations alone.”17
Te AAA
Traffic Safety Research Foundation conducted a study last year, which concluded that “quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported.18 Tere are other studies that find a wide range between THC blood concentrations and impairment. Some have suggested that THC concentrations in blood between 3.5 to 5 ng/ml or between 4 and 6 ng/ml equate to impairment.19 Te fact that there are pending federal
studies is indicative that the science is still unclear:20 • Olin Neuropsychiatry Research Center is currently looking at the ways cannabis affects the brains of people as they drive motor vehicles.
• Te National Institute on Drug Abuse (NIDA) is using a $1.4 million grant to conduct a five-year study to determine how marijuana impacts critical brain functions for driving.
• Te National Highway Traffic Safety Administration (NHTSA) is conducting a second research project to develop a test for pot intoxication. Michael Stevens, one of the co-leaders of the research team and director of the
www.datia.org
clinical neuroscience and development laboratory at the Olin Center said, “it may take years of more research and analysis to come up with science-based answers to questions about what smoked marijuana does to brain function as a person is atempting to drive.” In Massachusets, it will be precedent-
seting if the court finds that science has established a THC blood concentration level that equates to marijuana driving impairment, or that the standard field sobriety tests and certain observations were consistent with marijuana driving impairment. As new marijuana laws are instituted, Courts across the country are hearing more and more cases related to those issues presented to the Massachusets Supreme Court. Prosecutors, defense atorneys, toxicologists, drug recognition experts, other law enforcement, and judges will all be watching the outcome of this hotly contested case. ❚
References 1
COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT, No. SJC-11967;
http://www.wbur.org/ all-things-considered/2017/01/06/supreme-judicial-court- marijuana-driving
2
http://www.wbur.org/all-things-considered/2017/01/06/ supreme-judicial-court-marijuana-driving
3
http://www.ma-appellatecourts.org/display_docket. php?dno=SJC-11967
4
https://www.socialaw.com/services/slip-opinions/slip- opinion-details/commonwealth-vs.-elivette-rodriguez
7
5 6
United States v. Staula, 80 F.3d 596 (C.A.1, 1996)
See, e.g. State v. Sarto, 195
N.J.Super. 565, 574, 481 A.2d 281 (1984) (reversing the order of suppression because “the strong odor of unburned marijuana gave police probable cause to search the trunk for evidence of contraband”); Waugh v. State, 20 Md.App. 682, 691, 318 A.2d 204 (1974) (stating that “[t]rained investigators are entitled to [605 N.W.2d 670]rely upon the sense of smell to establish probable cause, just as surely as they are entitled to rely upon the senses of sight, hearing, touch or taste”), rev’d on other grounds, 275 Md. 22, 30, 338 A.2d 268 (1975). See generally the collection of cases catalogued at 68 Am. Jur. 2d, Searches and Seizures, “Detection of Odor,” § 72 (1993), and “Odor of Narcotics as Providing Probable Cause for Warrantless Search,” 5 A.L.R.4th 681 (1981). Virginia and Georgia are exemplary. In Virginia, the Court of Appeals has hinted at an acceptance of plain smell, but has never clearly adopted the doctrine. See Commonwealth v. Jones, 1997 WL 557005, at *1 (Va. Ct. App. Sept. 9, 1997) (appearing to find probable cause based on odor alone, but not clearly excluding other factors from the holding); Lewis v. Commonwealth, 1997 WL 260581, at *1-2 (Va. Ct. App. May 20, 1997) (suggesting, but not expressly stating, that the odor of marijuana alone gave officer probable cause to search vehicle). The situation in Georgia is substantially similar to that in Virginia. Compare Brewer v. State, 199 S.E.2d 109, 112 (Ga. Ct. App. 1973) (stating that odor of marijuana is not in itself sufficient evidence to establish probable cause), overruled by State v. Folk, 521 S.E.2d 194, 198 (Ga. Ct. App. 1999), and Albert v. State, 511 S.E.2d 244, 248 (Ga. Ct. App. 1999) (recognizing that the issue of plain smell was still unresolved in Georgia, and holding that odor of marijuana was only one factor in the determination of probable cause), with Rogers v. State, 205 S.E.2d 901, 903 (Ga. Ct. App. 1974) (recanting prior statement from Brewer that odor alone cannot establish probable cause), and State v. Folk, 521 S.E.2d 194, 198 (Ga. Ct. App. 1999) (“We now hold that a trained police officer’s perception of the odor of burning marijuana... constitutes sufficient probable cause to support the warrantless search of a vehicle.”). Although Folk appear to settle the issue of plain smell in Georgia, it remains to be seen whether the Georgia Supreme Court will ratify that decision if given the opportunity to rule on plain smell.
http://www.wbur.org/all-things-considered/2017/01/06/ supreme-judicial-court-marijuana-driving
8
https://www.ncdd.com/horizontal-gaze-nystagmus-how-it- works-how-to-challenge-and-exclude-it; http://www.ndaa. org/pdf/admissibility%20of%20hgn_april_2003.pdf
9
http://www.fieldsobrietytests.org/rombergbalancetest.html datia focus 47
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