MARIJUANA LAW UPDATES BY JUDGE MARY A. CELESTE (RET.)


The Impact of the Gerhardt Decision on Marijuana Driving Cases*


Driving under the influence of marijuana, and driving under the influence of drugs in general is an escalating problem for the roadway and the Courts.


I


n the midst of serious national attention to marijuana and driving, the long-awaited Gerhardt decision


was handed down this September 2017. What was the actual ruling? The applicability of SFST (standard field sobriety tests) to marijuana impairment presented a few important legal issues for the court. One issue is that SFST were established to detect alcohol impairment, not marijuana impairment or drug impairment. Additionally, as the Gerhardt court noted, there are conflicting studies on the topic and no consensus in the scientific community to support their applicability. Irrespective of this, the Gerhardt court


stated that “[t]he absence of scientific consensus regarding the use of standard FSTs in atempting to evaluate marijuana intoxication does not mean that they have no probative value.” As such, the court concluded that although a police officer may testify about their observations related to SFST, “[a] police officer may not suggest, however,


on direct examination that an individual’s performance on an [S]FST established that the individual was under the influence of marijuana. Likewise, an officer may not testify that a defendant ‘passed’ or ‘failed’ any [S] FST, as this language improperly implies that the [S]FST is a definitive test of marijuana use or impairment.”1 Te court went even further and


concluded that “[t]he fact that the [S] FST cannot be treated as scientific ‘tests’ of impairment means that evidence of performance on [S]FSTs alone is not sufficient to support a finding that a defendant’s ability to drive safely was impaired due to the consumption of marijuana, and the jury must be so instructed.” [Emphasis added].2 What other factors should be


considered in determining driving impairment: toxicology reports; bad driving resulting in an accident; physical evidence like marijuana paraphernalia or cigarettes in plain view; inculpatory statements like “I just smoked some


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datia focus


winter 2018


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