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Why Some Say That Are OUI Drug Charges in Massachusetts Can Rarely Be Proven Beyond a Reasonable Double

OUI drugs in Massachusetts is a crime not often prosecuted. Police officers will make a stop of a vehicle based on their observations of operation or a report or erratic driving. Just after making the stop the officer will contact the operator. They usually ask for a license and registration and make some comment about the reason for the stop. During this initial encounter the officer makes observations about the driver. He looks for signs of intoxication. Alcohol intoxication. The typical patrol officer is trained to look for objective manifestations of impairment, unsteadiness of one’s feet, slurred speech, the inability to respond to simple commands and of course the odor of alcohol. Few are trained to look for indicia of drug impairment. This is why you rarely see OUI drug cases being charged in Massachusetts. When you do they usually cannot be proved.


Here is what frustrates the district attorneys in Massachusetts and will continue to frustrate them. They cannot identify the substance causing impairment to the defendant. Even when they can, either through an admission or a toxicology report they still are unable to establish that the substance taken falls within the statutory prohibitions. Take the following example. In Commonwealth v. Ferola, 72 Mass.App.Ct. 170 (2008) after a motor vehicle stop the defendant told the police officer that she had taken Klonopin. A toxicology report from the hospital confirmed the presence of Klonopin and Amitriptyline. Even though the arresting officer qualified as a drug recognition expert, a rarity in Massachusetts, the conviction was reversed due to the fact that the district attorney was unable to prove that these drugs comported with the prohibitions of G.L. c. 94C sec. 1.

So What Should I Do If I Am Charged With OUI Drugs in Massachusetts?

I would seriously think about going to trial. Unless there was an accident where someone was injured, the prosecutor will view this case as a run of the mill Massachusetts drunk diving case. He or she will provide discovery and identify the witnesses who will testify at trial. At most OUI trials only the arresting officer and booking officers testify. It is unlikely that they will qualify as drug recognition experts. Moreover, nobody will be able to identify the substance that caused the defendant’s impairment. Even with an admission or a toxicology report, it is doubtful that anyone will be able to legally establish the link between the substances identified and their effect on the defendant. If the prosecution tries to use a drug recognition expert not involved in the arrest your lawyer will object. Under many circumstances this person cannot come into court and offer an opinion that you were impaired by substance “A” or “B” or “C” without seeing you that night. Talk to your lawyer about this. Sometimes going to trial is worth it.

The Law Offices of Stephen Neyman has defended OUI drugs cases successfully in Massachusetts. Call us at 617-263-6800 or send us an email. We will fight for you.