What is OUI-drugs?

When we hear “OUI” the first thing that comes to mind for many people is drunk driving. That makes sense. Operating under the influence of intoxicating liquor is one of the most frequently charged crimes in Massachusetts. TV shows and movies might also lead us to believe that the only reason a police officer might pull a person over for impaired driving is because they have consumed too much alcohol.

However, operating under the influence is not limited to alcohol. A person in Massachusetts can also be charged with operating under the influence of drugs.

What is OUI-drugs?

In law, when we talk about what a crime is and is not, we usually break down the statute into its elements, or parts. In Massachusetts, operating under the influence of drugs is a crime defined under the General Laws of the state. It has three elements:

  • That the accused was operating a motor vehicle
  • That the accused was operating on a public way
  • That while the accused was operating the vehicle, they were under the influence of a drug, which could include:
    • Marijuana
    • A narcotic
    • A depressant
    • A stimulant
    • Inhaling fumes for a high

When a case goes to trial, the government has the burden of proving the crime charged beyond a reasonable doubt. This means that each element of the crime must be proven to a very high degree of certainty. If there is any “reasonable doubt,” that a person did not commit one or more of the elements, the defendant must be found not guilty

The crime of operating under the influence of intoxicating liquor (often shortened to “OUI-liquor”) is very similar to operating under the influence of drugs (“OUI-drugs”). Both crimes require proving operation and public way. The difference is that for OUI-liquor the government must prove that the accused was under the influence of intoxicating liquor, not a drug. However, there are case-proving distinctions that make success on an OUI-drugs case much more challenging for prosecutors.

What drugs count as “a drug?”

Under the OUI-drugs law, the definition of “a drug” is very broad. However, in order to convict a person accused of this crime, the government must prove not only that the accused was under the influence of a drug but also that they were under the influence of a class of drug specifically included in the OUI-drugs law. Some of these categories were mentioned above. They include marijuana, heroin, opiates, stimulants, and depressants. Each have scientific definitions that are laid out in other law.

An effective criminal defense attorney will investigate whether the impairment symptoms police reported are consistent with use of one of these categories of drugs. Because the subject matter is technical, defense attorneys sometimes rely on an expert for assistance.

What role do expert witnesses play in OUI-drugs cases?

When cases go to trial, both the Commonwealth and defense attorneys may put up an expert witness to help explain to jurors or a judge scientific subjects that the average person is unlikely to be familiar with.

Experts play an important role in OUI-drugs cases, especially for prosecutors. In OUI-liquor cases, a police officer or civilian witness can testify that based on their observations they had reason to believe that the accused was not sober. These observations could include things we commonly associate with being drunk, like smelling strongly of alcohol, slurring words, or being unsteady. In OUI-drugs cases, it’s different. Prosecutors in OUI-drugs cases have to prove that the observations of the police involved are in fact related to use of a drug. Because this is beyond the knowledge of the average person, the government needs to rely on what is called a drug recognition expert.

A drug recognition expert (DRE) is a police officer specially trained in recognizing the behaviors and symptoms connected with the ingestion of certain drugs. DREs are typically brought to the scene of the stop or to the police station to perform an evaluation on the suspect. In recent years, Massachusetts has almost doubled the number of police officers certified as DREs.

Beside cross examining the government’s DRE at trial, there are other ways of challenging the evidence these experts provide. The most effective is called a Daubert-Lanigan challenge, which occurs before the trial has even begun. Named after two important Massachusetts Supreme Judicial Court cases, a Daubert-Lanigan challenge is a way of attacking the admissibility of an expert’s testimony. In other words, a successful Daubert-Lanigan challenge could prevent an expert from taking the stand in the first place. When this happens in OUI-drugs cases it usually results in a collapse of the government’s case as an expert is needed to prove a person is intoxicated by drugs. In recent years, defense attorneys have become more successful in challenging DREs because of widespread concerns about the science of evaluating suspects this way.

When drugs are found in or near a vehicle, the government may also try to make their case by submitting as evidence at trial a certificate of analysis. A certificate of analysis confirms what type of drug a particular substance is. According to an important case, certificates of analysis cannot come into evidence unless the analyst who analyzed the substance testifies in court. This analyst is usually a chemist.

The best criminal defense attorneys know the rules of evidence well. These rules impact what jurors or judges use to decide cases at trial. When police and prosecutors do not follow the law, the evidence they collect will not be considered. Effective defense attorneys recognize when the law is not followed and bring it to the court’s attention.

What does it mean to be under the influence of marijuana?

When a person is accused of driving under the influence of marijuana, the government must still prove beyond a reasonable doubt that consuming the marijuana impaired their ability to drive their car safely.

Unlike in OUI-liquor cases where a police officer can offer an opinion that a driver was “drunk” or “not sober,” in OUI-drugs cases where marijuana is the drug at issue, police cannot say it was their opinion that the defendant was “high.” A police officer’s testimony is limited to their observations of how the driver physically looked. These physical observations could include:

  • Bloodshot eyes
  • Drowsiness
  • Lack of coordination

Jurors and judges are allowed to use their common sense to determine if these physical observations indicate that a person was high on marijuana. Of course, the standard is still that they must be convinced beyond a reasonable doubt that the accused was so high that they could not safely drive their car.

What else should I know about the law on OUI-drugs?

The law is always changing. When the law changes, it is important to keep track of developments to prepare the best possible criminal defense. Here is a list of some other important points on OUI-drugs law:

  • The government alleges that the intoxicating drug was cocaine or heroin. A case from Massachusetts’ highest court says that when the government alleges that a defendant was under the influence of cocaine or heroin it must either submit expert testimony on the fact that heroin or cocaine is a derivative of opium or ask the judge to take special notice of it. If the Commonwealth neglects to do so, the defendant must be acquitted.

  • Involuntary intoxication as a defense. If the person accused of OUI-drugs became intoxicated involuntarily, or accidentally, because they consumed a prescription medication, they cannot be found guilty of the crime. The involuntary intoxication defense only works if the following are true:
    • The accused was not warned on the use of the medication
    • The accused had no reason to believe the medication would intoxicate
    • The accused had no reason to ask their doctor about the possible effects of the medication

Even though this is a defense, the government still has the burden of providing not only that the defendant was intoxicated by the drugs allegedly consumed but that the intoxication was voluntary.

  • Field sobriety tests. In OUI-liquor cases, police officers often conduct field sobriety tests. A field sobriety test is a test police administer to pulled over drivers to determine if they have the physical and mental proficiency to safely operate the car they are driving. In addition to OUI-liquor cases, police can administer these tests in OUI-drugs cases. At trial, the administering officer can testify about the defendant’s performance but may not refer to them as field sobriety tests. They must instead be called roadside assessments. The officer also cannot say the defendant “passed” or “failed” a particular test or state as their opinion that the driver was “under the influence of a drug.”

  • Smelling or inhaling fumes. Finally, due to a 2018 change of the OUI-drugs statute, a person can be intoxicated by a drug by deliberately smelling or inhaling toxic fumes. A person does not actually have to consume or inject a drug to be considered under the influence of it.



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