Massachusetts Legislators Kill Baker’s Drugged Driving Bill

By Matt Murphy

Gov. Charlie Baker last fall impressed on lawmakers the importance of acting to prevent driving under the influence of marijuana, but for the second straight session the Legislature has snuffed out legislation that would have empowered law enforcement to use field sobriety tests and other measures to determine if a driver was under the influence of pot.

More than five years after voters legalized recreational marijuana use, the debate over how to enforce irresponsible cannabis use on the roadways continues to burn.

Baker last fall laid out a series of measures he said would give law enforcement more tools to enforce impaired driving laws, but critics continue to express hesitancy given the lack of a proven and agreed upon scientific method for measuring marijuana intoxication during a traffic stop.

“I just think we don’t yet have a reliable device like we do with alcohol to determine if someone is impaired,” said Sen. Jamie Eldridge, an Acton Democrat and co-chair of the Judiciary Committee. “I think it’s really, really important to emphasize the measure in the governor’s proposal to allegedly detect marijuana intoxication while driving is deeply flawed, using biofluids.”

The Judiciary Committee last week put the governor’s bill ( H 4255) into a study order, essentially sealing its fate as a proposal that won’t pass this legislative session. The committee did the same thing to Baker’s similar legislation during the previous two-year session.

Eldridge said that in addition to the lack of reliable testing he thinks Baker’s proposal would make it easier for law enforcement to search a person’s car if they are suspected of using marijuana, moving Massachusetts “the wrong way” after more than a decade of relaxing prohibitions on pot.

“I don’t actually think this is a real problem in Massachusetts in terms of many people using marijuana while driving. It certainly happens, but I do think the governor and the Executive Office of Public Safety were overstating how often it happens,” Eldridge said.

Baker refiled his impaired driving legislation last November, renaming the bill after Thomas Clardy, a State Police trooper who was killed in 2016 when he was struck by an impaired driver while performing a routine traffic stop on the Massachusetts Turnpike.

A blood test conducted on the man responsible for Clardy’s death revealed the presence of THC, the main psychoactive compound in marijuana, but he was never convicted of driving under the influence of an impairing substance.

“Unfortunately, our road safety laws have not caught up to the current public safety landscape with respect to impaired driving,” Baker said, announcing his legislation with Clardy’s widow from the district courthouse in Worcester.

The bill would have adopted the recommendations of the Special Commission on Operating Under the Influence and Impaired Driving by suspending the license of someone suspected of operating under the influence of marijuana for six months if they refuse to take a chemical test for impairment.

It would have also prohibited drivers from having loose or unsealed packages of marijuana in their cars in the same way open containers of alcohol are prohibited, legally recognized the effectiveness of the horizontal gaze nystagmus field sobriety test, and allowed police officers to seek electronic search warrants for evidence of chemical intoxication, including blood draws authorized by a magistrate and performed by a medical professional.

The ACLU of Massachusetts opposed the idea of an automatic license suspension.

“Ensuring that we provide our law enforcement professionals with accurate and reliable tools to keep our roads safe is essential,” Rep. Michael Day, the House chair of the Judiciary Committee, said in a statement to the News Service. “The science of detecting marijuana and other drug-related impairments to driving is far from settled at this point, although we are closely monitoring new methodologies and promising studies in this evolving area.”

Baker’s office declined to comment on the governor’s bill being referred for further study, but advocates said it was disappointing given the increases in driving fatalities taking place across the country, including in Massachusetts.

“Certainly we were disappointed because we were supportive of the bill,” said Mary Maguire, director of public and government affairs for AAA Northeast. “We are looking at a situation now across the country where we are seeing a record numbers of roadway fatalities, according to the preliminary numbers for 2021.”

Data released by the National Highway Traffic Safety Administration this month estimated a 15.5 percent increase in roadway fatalities in Massachusetts over the first nine months of 2021 compared to same period in 2020 from 258 to 298.

Maguire said that while many of these incidents are caused by alcohol use, a significant number also involve marijuana or the use of multiple substances by drivers.

“This is an issue that has to be addressed. We’re losing too many people on our roadways, “Maguire said. “Given the absence of a definitive roadside test to determine cannabis impairment the drug recongition expert is currently the best tool we have to address impairment at the roadside so that is something that needs to be seriously considered going forward.”

Baker proposed to have the municipal police training committee expand its training of drug recognition experts, who would be newly allowed to testify as expert witnesses in civil and criminal cases. Eldridge, however, said he would rather see money spent by agencies like the Department of Public Health on public awareness campaigns to educate the public about the dangers of driving while high.

The decision by the Judiciary Committee to comes as researchers at Massachusetts General Hospital have reported what could be a breakthrough in the science of marijuana impairment detection. Those same scientists questioned the accuracy of methods used by drug recognition experts, who are often police officers that have undergone specialized training.

The Boston Globe wrote last week that MGH researchers believe the key to a roadside test could be in the use of a portable brain scanning device, rather than measuring levels of THC in the blood or saliva that can remain long after use and are not a measurement of impairment.

Lawmakers also advanced a sweeping update to the state’s marijuana regulation last month that would potentially pave the wave to the introduction of social consumption sites, or pot cafes, which would put marijuana even more on par with alcohol for the potential of users to ingest marijuana and then drive.

The Cannabis Control Commission has approved regulations that paved the way for establishments where adults could use marijuana together in a social setting, but it says the 12-city pilot program requires legislative authorization.

The bill recommended by the Joint Committee on Cannabis Policy would create a process by which residents could “request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town.”

Last month, when the Cannabis Control Commission voted to formally adopt its official policy statements on operating-under-the-influence laws and social consumption venues, all five commissioners voted in favor of supporting legislation to strengthen OUI laws but only four voted to support what the chairman called “a literal technical fix” to create a process for cities and towns to opt into the already-approved social consumption site program.

“With laws not updated, I feel like it’s putting the cart in front of the horse, if you will. So I struggle with this until laws are updated that can safeguard the roadways around cannabis cafes,” Commissioner Kimberly Roy said at the CCC’s Jan. 20 meeting.

Roy, who previously oversaw public and media relations and educational outreach efforts for Worcester County Sheriff Lew Evangelidis, said it all came back to public safety for her.

“I’ve wrestled with this. And for me, it’s public safety, public safety, public safety and public safety,” she said just before casting the lone dissenting vote. “And until the Legislature addresses that, I struggle with advocating for opt-ins to begin that process.”

[Colin A. Young contributed reporting]