September 20

Standard Field Sobriety Tests are Admissible in DUI-Marijuana Case

Although there is no scientific agreement on whether the standard field sobriety tests used to detect drivers impaired by alcohol (the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test”) might indicate marijuana intoxication, the Supreme Judicial Court of Massachusetts ruled that a driver’s performance on these tests are admissible to “establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle.”

But the court also ruled that the officer conducting the tests will not be permitted to testify that a driver “passed” or “failed” the tests, or whether the driver’s performance on the tests indicated impairment. A police officer not qualified as an expert (i.e., a Drug Recognition Expert) cannot offer an opinion about whether a driver was under the influence of marijuana.

The full opinion may be found here. 11967

June 30

Search Warrant Required for Blood Tests in DUI Cases

The U.S. Supreme Court ruled on June 23, 2016 that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Birchfield v. North Dakota, 579 U.S. ___ (2016).

In Vermont, this ruling will immediately affect DUI-Drug cases where the police try to collect a blood sample after a DRE exam to test for the presence of drugs other than alcohol, and criminal refusal cases where the driver refuses to give a blood sample. Vermont imposes criminal penalties on motorists with prior DUI convictions who refuse to submit to a blood test.

In light of the Supreme Court’s decision in Birchfield, the standard advisory given to drivers in Vermont to obtain their consent to a blood test is inaccurate under the Fourth Amendment. Under existing Vermont case law, this constitutes a “flaw in the procedure,” arguably requiring suppression of any blood test result, or any refusal of the blood test, as evidence at trial, unless the police obtain a search warrant to collect a blood sample.

Birchfield

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