Mandatory Pot Test for Drivers Likely to Face Legal Fight

January 5, 2019

By Sean Philip Cotter and Alexi Cohan

Boston Herald

Drug testing of drivers will be challenged in court and will be hard to enforce, attorneys and advocates say -- while the ACLU vowed to fight such legislation -- though police insist such measures are the best way to get stoned drivers off the road.

A mandatory drug test -- under threat of license suspension -- is the linchpin recommendation for new laws on stoned driving from the Legislature’s Special Commission on Operating Under the Influence and Impaired Driving. Currently, anyone pulled over on suspicion of drunken driving must submit to a test or face license suspension, but that’s not the case for suspected stoners. Unlike alcohol, which metabolizes quickly at measurable rates, the active chemical in cannabis, tetrahydrocannabinol or THC, can stay in the body for weeks.

“How are you going to determine when this person consumed the THC?” Boston defense attorney Ilir Kavaja said. “It presents practical issues that come with it.”

The ACLU vows to oppose any such legislation because of concerns about the validity of the tests.

“We want to ensure that if motorists are faced with penalties such as losing their license for not taking a drug test that that test is scientifically proven to measure impairment,” said ACLU Field Director Matt Allen, a member of the special commission who was the lone “No” vote on the recommendations.

Kavaja added that the tests could face a constitutional challenge.

“No matter what the Legislature does, the SJC has been very clear about the constitutionality of taking someone’s bodily fluid,” Kavaja said. “It is unconstitutional to force someone to draw their saliva without a warrant.”

But Chelsea Police Chief Brian Kyes said the passage of the proposed law is crucial.

“There has to be some leverage or else people are just going to refuse,” Kyes said.

Kyes also stressed the importance of training officers as drug recognition experts, or DREs, to handle these assessments.

“At the end of the day, what you need to convict somebody in court, you need a drug recognition expert,” Kyes said.

Chelsea has one DRE, Boston has two and the State Police in total has about 30. Right now, there’s about 155 DREs out of 17,000 officers in the state, and the report to the Legislature calls to fund training for hundreds more and to make sure they’re able to testify as expert witnesses.

But Kavaja countered: “I don’t think drug recognition experts are that effective, because people react so differently to pot.”

Former Suffolk County District Attorney Dan F. Conley, now with Mintz Levin, said, “Good defense attorneys are able to cross examine (DREs) extensively and cause questions in the mind of a jury. You know it when you see it, but proving it beyond a reasonable doubt is very difficult.”

Conley said the development of a proven device to medically test for impairment is crucial. The chemicals in pot remain in the system long after someone is high, so the existing saliva or blood tests don’t conclusively prove impairment, though companies are working on making better tests.

“We’re really very anxious for the scientific community to get that done,” Conley said. “I think it’s coming, but I’m really worried about the intervening period.”

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