Governor Charlie Baker on Wednesday said his team re-filed a bill to make it easier to successfully prosecute drugged drivers after the measure did not pass the Legislature in 2019 amid criticism by civil liberties advocates.
Appearing in Worcester with the widow of State Trooper Tom Clardy, who was killed in 2016 by a driver with marijuana in his system, Baker said the bill re-named for Clardy “would strengthen the Commonwealth’s impaired driving laws by equalizing alcohol and marijuana and giving law enforcement more tools to keep our roads safe from impaired drivers.”
While Baker said his administration’s bill would heighten public safety if passed, defense lawyers and civil liberties advocates raised their previous criticisms that the legislation relies on unscientific police tactics and would lead to innocent drivers being convicted on solely a police officer’s word.
“This is a horrible idea that will result in a grave injustice to people who will be convicted without proper evidence,” said John Amabile, president of the Massachusetts Association of Criminal Defense Lawyers.
The bill’s provisions, Baker said, include allowing police trained as “drug recognition experts” to testify as expert witnesses; authorizing courts to take “judicial notice” that ingesting THC “can and does impair” drivers; and improving law enforcement’s ability to test for the presence of drugs, including by using a scientifically reliable field sobriety test.
“My family and I feel that by implementing the Trooper Thomas Clardy Law, it will provide measures that will improve roadway safety and prevent another senseless tragedy, another family torn apart by the loss of a loved one,” said Clardy’s widow, Reisa Clardy.
But critics of the bill point to scientific studies suggesting that ingesting THC alone does not guarantee impairment, similarly to drivers being legally allowed to drive after drinking a beer. Studies have also questioned the accuracy of drug recognition experts, whose testimony has been rejected in multiple court cases in Massachusetts by judges who ruled the police training lacks scientific validation.
“Basically what they’re saying is that if you get accused by police, the judge will take judicial notice that you’re guilty,” Amabile said. “That’s absurd. There’s a reason why when we have trials, we have a standard of proof beyond a reasonable doubt.”
Studies show that marijuana can affect driver coordination, reaction time, and decision-making. Compared to sober drivers, stoned drivers are anywhere from no more likely to three times more likely to crash, researchers estimate, while drunk drivers are five to 20 times more likely, according to a congressional report.
Unlike with alcohol, there isn’t a device that can prove marijuana impairment. Officials believe a breathalyzer-like device for pot could be years away. Blood levels of cannabis don’t correlate with impairment. Blood, saliva, and urine tests reveal only past use, which can be days old.
State officials have been concerned about a potential rise in drugged driving since cannabis stores started opening in 2018 across the state, two years after voters approved a ballot initiative supporting legalization in 2016.
But according to a recent Globe report, State Police statistics don’t reflect any dramatic changes since pot stores opened. Of nearly 8,500 arrests and summonses issued by troopers for operating under the influence from Jan. 2019 through mid-August 2021, 83 percent were for alleged alcohol-impaired driving. Most of the remaining 1,036 citations for alleged drug-impaired driving involved opioids, State Police officials said.
The Clardy case, though, was a particularly tragic one. Trooper Clardy, a father of six children, was fatally struck while in his cruiser on March 16, 2016, on the Mass. Pike in Charlton. Clardy’s cruiser was hit by a Nissan Maxima driven by David K. Njuguna, when Clardy had returned to his vehicle after pulling over another driver.
In a 2019 trial, Worcester Superior Court Judge Janet Kenton-Walker found Njuguna guilty of involuntary manslaughter but acquitted him of driving impaired on marijuana at the time of the crash. She ruled that prosecutors failed to prove Njuguna, a medical marijuana patient who bought four cannabis joints at a Brookline dispensary about an hour beforehand and had THC in his system afterward, was too impaired to drive safely.
Njuguna was sentenced to 5 to 7 years in state prison, with credit for the 3 and 1/2 years he’d spent in custody while awaiting trial.
Asked why the 2019 version of the bill never made it to his desk for signing, Baker said he wasn’t sure. The American Civil Liberties Union, defense lawyers groups, and others advocated against the bill at the time.
“The legislation basically drives off of the recommendations that were made by” a special commission on impaired driving, Baker said.
Additional provisions of the bill, Baker’s office said in a statement, include suspending driver’s licenses of motorists who refuse chemical testing for drugs; directing the Municipal Police Training Committee to expand training for drug recognition experts; barring drivers from having loose or unsealed packages of marijuana in the driver’s compartment of a vehicle; and developing educational materials and programming on drug impairment to share with judges.
“Life can change in the blink of an eye and, because of impaired drivers, it often tragically does,” Worcester District Attorney Joseph D. Early Jr., whose office prosecuted Njuguna, said in the statement. “This legislation is a great step to making our roads safer for all our loved ones who use them.”