Impaired lawmaking

Baker, DeLeo, and law enforcement lobby for new cannabis OUI laws

Massachusetts Gov. Charlie Baker and House Speaker Robert DeLeo are making a case for the Commonwealth to punish impaired cannabis drivers, and they’re seemingly doing so at the bequest of the law enforcement lobby. As the prohibitionist Boston Herald gushed, Baker and DeLeo “say passing new laws to target stoned drivers and get them off the road are a ‘priority’ on Beacon Hill.”

But there are two big problems that these State House honchos should face—science, and the courts.

The state’s very own Special Commission on Operating Under the Influence and Impaired Driving, which was stacked with law enforcement and private interest cannabis haters, was supposed to give recommendations calling for “mandatory blood and saliva tests of suspected pot-using drivers—under penalty of license suspension.” That’s what leadership and cops were hoping for, but the commission reversed course the next day. As the Boston Globe reported, “the commission decided that pressuring drivers to answer police questions as part of the [drug recognition evaluation] would violate drivers’ constitutional rights to not incriminate themselves. The panel said police could examine a driver for physical signs of drug use—such as reddened eyes—but not interview suspects without first advising them of their so-called Miranda rights.”

In the midst of the media blitz about stoned driving, one might think that at least some outlets would note another story from a couple weeks ago, “Massachusetts banned from using [alcohol] Breathalyzer test pending reforms at state police agency.” In that case, a district court judge found that the state’s Office of Alcohol Testing “intentionally withheld important evidence from defense lawyers.”

Yet Baker and DeLeo continue their campaign against legal cannabis, all while pushing for legalized sports betting and not getting called out on their apparent hypocrisy. It’s fitting that the report generated by their special OUI commission packed in nearly 1,500 references to “cannabis” and “marijuana,” but only 877 to “alcohol.”

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You might think that state leaders would think twice before pushing new cannabis driving laws that are likely to be challenged in court. Especially if those laws have been backed by law enforcement with an established pattern of withholding information from courts, which can lead to cases getting tossed. You would think it, but then there’s the appointment of people like John Scheft to the state’s OUI commission. A private practice attorney who owns a business with a mission of providing “police officers, supervisors and commanders with clear and comprehensive legal guidance,” and who sells manuals to law enforcement, he unsurprisingly supports adding more state funding for Drug Recognition Experts (DREs). Needless to say, no one in the local media who quotes Scheft brings up this potential conflict of interest.

Since Scheft likes to cite national data to support DREs and testing, I checked with a national expert who has written extensively on the subject matter. According to Dr. Greg Kane, a court-confirmed expert in the scientific interpretation of the scientific Standardized Field Sobriety Test (SFST) and of the scientific drug influence evaluation, “Leaders should understand that the National Academy of Science and academic science recognize that American courts accept forensic ‘science’ evidence that is in fact deeply unscientific, and traffic police sobriety testing fits that pattern.”

Kane adds, “Traffic-police drug influence tests are medical tests made up by traffic policemen, originally adopted by the National Highway Traffic Safety Administration without any scientific testing to see whether they actually work. NHTSA teaches officers that the testing they do was “validated” by two studies done by 1) a science-for-money contractor, and 2) an agency employee. NHTSA published these studies in-house, without allowing them to be reviewed by independent scientists checking for gross scientific errors and exaggerations. The studies have never been accepted and published by any scientific journal.

“My own peer-reviewed, journal-published research showed that these studies do not validate the drug influence tests now done by US law enforcement.”

Matt Allen is a field director with ACLU of Massachusetts, a representative on the OUI commission, and chair of the Public Safety and Community Mitigation Subcommittee of the Community Advisory Board for the Cannabis Control Commission. He’s the only rep on the driving commission that actually supported legalization and was the single vote against the majority recommendation.

“Currently there is no test for cannabis that can detect recent use with the reliability and accuracy that the breathalyzer does for alcohol,” Allen says. “Any tests to determine whether a motorist is OUI must be based in science. Motorists shouldn’t be faced with losing their license for refusal to submit to a test that is not scientifically proven to measure impairment.”

It’s not that Allen doesn’t worry about impaired drivers. “It is important,” he says, “to note that even if impairment cannot be proved in court, police currently have the ability to intervene immediately by taking the keys away from anyone they think is a danger to have on the road.”

Dr. Kane cautions, “The general public should understand that NHTSA’s own official research proved that traffic police SFSTs are highly inaccurate at correctly identifying drivers who are sober. Sober people fail the SFST at high rates. People who are innocent take the test, and the test gives the wrong answer—it says they are guilty when they are not. If you are driving home sober, and an officer stops you and asks you to do an SFST, scientifically your best answer is, “Officer, I’d rather you just toss a coin—heads guilty, tails innocent.” NHTSA’s own official science reported that on sober people, a coin toss made fewer mistakes than the traffic police SFST.”

Allen agrees: “This threatens the civil liberties of drivers who test positive even when not impaired. … And it undermines law enforcement agents who are using a tool that has never been proven to be accurate.”

Which is exactly what Dr. Kane worries about: “Drivers should understand that the official NHTSA training manual teaches police to meet with the prosecutor before trial, to work out a strategy to conceal from the jury the fact that even fit, active, sober police may fail the SFST. Officers are taught to work with the prosecutor to conceal this from the jury, because (the manual says) if the jury finds out they are likely not to believe the results of the driver’s test.”

Many roadside drug evaluations may not be admissible in Mass courts but for a very small number of cases, according to longtime cannabis advocate and attorney Steven Epstein. “Where there is evidence of recent marijuana use, the consumer may only be prosecuted for operating negligently so as to endanger, and then only when there is evidence of negligent, unsafe, or erratic operation in combination with recent ingestion of marijuana. Testimony regarding the physical characteristics of marijuana use must be accompanied by a jury instruction that such testimony is limited to establishing recent consumption and by itself does not constitute negligent operation.”

“Drivers should understand that they need to listen carefully to claims about [drug recognition evaluation] accuracy,” Dr. Kane says. “DREs have not been shown to accurately predict impairment or any change in driving ability.”

As for Scheft, he denies the conflict of interest, and says that no one on the OUI board has an “agenda.”

“No, there’s nothing in it for me,” he told me. Scheft noted that he had concerns about civil liberties and says that he rejected more draconian standards. He also said that he respects Matt Allen’s contribution to the board, along with the ACLU recommendations that were indeed included in the final report to the governor. Scheft continued, “The DREs would be trained by others who are experts in that field. I teach [police officers] the law.”

Gov. Baker’s press office did not respond to a request for comment.

Mike Crawford is the host and founder of Disrupt Boston’s The Young Jurks video show and publisher of the Midnight Mass newsletter. Get your tickets now for The Young Jurks 5th Anniversary Gala and Awards Show being held on Sat 4.27 at Down the Road Beer Co. in Everett.

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