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Commission reverses course on recommended penalties for impaired drivers

Richard Vogel/Associated Press/file 2018

Suspected stoned drivers should not be penalized for refusing to answer police questions, a state panel said Friday, in revisiting its earlier decision.

Last week, the commission on impaired driving said that drivers suspected of being high should face an automatic six-month license suspension for refusing police demands for a saliva test, blood test, or 12-step “drug recognition expert,” or DRE, assessment that includes a urine test.

But on Friday, the commission decided that pressuring drivers to answer police questions as part of the DRE evaluation would violate drivers’ constitutional rights to not incriminate themselves. The panel said police could examine a driver for physical signs of drug use — such as reddened eyes — but not interview suspects without first advising them of their so-called Miranda rights.


“You can’t have a situation where you have the right to remain silent, however we’re going to punish you if you don’t talk,” said attorney Peter Elikann, representing the Massachusetts Bar Association. “That’s just not going to fly.”

That tweak was among a slew of recommendations the commission voted to provide to lawmakers for the legislative session that starts in January. As five recreational pot stores have opened since November and more are coming, officials have struggled to address a potential rise in stoned drivers without an accurate test that can detect marijuana impairment. Saliva, blood, and urine tests only show past marijuana use, possibly from weeks earlier, not current impairment.

To combat a widely-held belief that people drive better when they’re high, the commission voted to include its consensus, based on scientific research, that THC, marijuana’s main psychoactive compound, impairs key driving skills, such as cognitive attention, motor function, reaction time, tracking, decision-making, impulse control, and memory. Impairment is worsened when marijuana is mixed with alcohol.

Among other recommendations the commission passed:


■  Hospitals and other blood-drawing labs should be required to comply with search warrants to draw a suspected impaired driver’s blood. They should be compensated for their work and protected from legal liability.

■  All Massachusetts police officers should complete a specialized 16-hour impaired driving enforcement course.

■  Massachusetts should more than double its number of highly trained DRE officers at departments around the state, from 150 now to more than 351 in the near future.

■  Marijuana tax revenue should fund police training.

■  Massachusetts should implement electronic search warrants so that law enforcement can quickly obtain blood or saliva tests before a possible drug has left a suspect’s system.

■  The state should add a module to its required driver’s education course that covers impairment by marijuana.

Commission members debated whether lawmakers should make saliva tests that detect marijuana use automatically accepted as court evidence the way breathalyzers are. They ultimately decided against that, as those tests only show past use, not current impairment. The test results could still be used against a defendant in court, but prosecutors would have to show their validity first through an expert witness.

The commission should “leave it as a case-by-case basis until we’re at the point where we have a breathalyzer-like tool,” said attorney John Scheft, an appointee of Attorney General Maura Healey.

Walpole Police Chief John Carmichael said the blood, saliva, or urine tests would only come as a result of other signs a driver is impaired. “Nobody’s going to be taken out of the car [for] using marijuana two weeks ago,” Carmichael said.


Naomi Martin can be reached at naomi.martin@globe.com.