Massachusetts DUI Attorney Blog

According to the Patriot Ledger, Massachusetts DUI drug cases are on the rise statewide. Arrests for DUI drugs nearly equal the total for all of last year for the first six months of 2009. The survey from the federal government states that Massachusetts has the third highest rate of drug driving in the nation. The increase in DUI drug arrests in Massachusetts is probably a result of increased officer training as more officer are being trained as DREs, drugged recognition experts.

A DUI drugs case involves officer giving a different set of tests and evaluation than for a DUI alcohol case. In some cases, a DUI drug arrest results when a suspect passes a breathalyzer test and the officer is still under the belief that the individual was impaired. If an officer finds evidence of drug use either through statements of the driver or smells an odor of marijuana or other narcotics, than the suspect may be charged with DUI drugs.

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According to some recent studies, cases involving DUI alcohol are down nationwide while cases of DUI drugs are on the rise. In Massachusetts, it is difficult for a prosecutor to prove an OUI drugs charge. Under Massachusetts Law, Chapter 90 Section 24(1)(a)(1), it is illegal to operate a motor vehicle under the influence of a narcotic drug, depressant or stimulant. To prove that a substance is an illegal drug the Commonwealth would have to show that the defendant was under the influence of a drug listed in Chapter 94C Section 1 of the Massachusetts General Laws. The statute also encompasses drugs listed by the United States Secretary of Health, Education and Welfare as habit forming.

In the case of Commonwealth v. Ferola, 72 Mass. App. Ct. 170 (2008), the Massachusetts Appeals Court held that the Commonwealth proved that the defendant was operating under the influence of Klonopin and amitriptyline and that the defendant's ability to operate a motor vehicle was impaired. The court stated that the Commonwealth had to also show that the substance is a drug that contains any quantity of a substance which the United States Attorney has by regulation designated as potentially habit forming. The court held that the Commonwealth would have to submit proof to the court by way of expert testimony, submitting the regulation into evidence or asking the court to take judicial notice that a substance is listed in the United States Attorney regulations. Accordingly, the court vacated the defendant's conviction.

While this issue was not raised in Ferola, in some case of driving under the influence of drugs, an issue, like in OUI alcohol cases, is whether the defendant is impaired. In DUI drug cases, generally the Commonwealth will rely on the training of a DRE, drug recognition expert to conclude that someone is under the influence of drugs. While every officer is trained to administer field sobriety tests, there are few DRE experts within each police department. Accordingly, it is more difficult to prove that a driver was under the influence of drugs in some cases because the officer will not have the necessary training to arrive at that conclusion.

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