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Attorney Meghan Oreste Gets Two OUI Marijuana Convictions Overturned at the Appeals Court.


In two separate cases, Attorney Meghan Oreste was able to get OUI Marijuana convictions reversed and new trials ordered. Both cases were based on the 2017 SJC Gerhardt decision that found that field sobriety tests (FSTs) do not accurately measure marijuana impairment and an OUI conviction can not rest solely on FST evidence.

Full Appeals Court Opinions below:


94 Mass.App.Ct. 1112
December 5, 2018.

By the Court (Milkey, Henry & Englander, JJ.1)


*1 After a jury-waived trial, a District Court judge found the defendant guilty of driving under the influence of marijuana (OUI-marijuana) (count one).2 During the course of the trial, the defendant preserved two claims of error on which there since have been significant developments in the case law. See Commonwealth v. Gerhardt, 477 Mass. 775 (2017). We agree with the defendant that he is entitled to a new trial on count one based on Gerhardt. However, he is not entitled to a judgment of acquittal.

Background. The arresting officer was the sole witness for the Commonwealth. He testified that he observed the defendant's car “traveling directly in the middle of the two solid yellow [traffic] lines,” after which he turned into a hospital parking lot. The defendant was driving. When the defendant rolled down his window, the officer saw smoke “billowing” out of the car and smelled the odor of freshly burnt marijuana. According to the officer, the defendant's eyes were “bloodshot and glassy,” and he exhibited a “carefree, laid back demeanor” that was unusual for a traffic stop. The officer asked the defendant if he had been smoking marijuana, and the defendant acknowledged that he had.3

The officer then recounted that he had the defendant perform a number of what the officer referred to as “field sobriety tests” (FSTs) and that the defendant performed poorly on such “tests.” For example, the officer testified that while performing the “nine step walk and turn test,” the defendant “started too soon, made an improper turn and fell offline twice on the nine steps back.” Over the defendant's objection, the officer also testified that, in his lay opinion, consumption of marijuana had the following effects on the human body: “bloodshot, glassy eyes, the carefree demeanor, extreme hunger, laugh, giggles.” In addition, the officer testified that based on the defendant's exhibiting such characteristics and the defendant's performance on the FSTs, he had formed the opinion that the defendant “was under the influence of marijuana.”

In convicting the defendant, the judge made no written findings. He did, however, offer the following comments from the bench:

*2 “Based on the evidence, and the interesting kind of case, but -- and issues that I have said earlier we'll take up the next several years.

“But based on the balance and coordination test, the Court does find sufficient evidence for a finding of guilty on both the OUI drugs and the license suspension.”

DiscussionReliance on the FSTs. The evidence regarding the FSTs was admitted without objection. Nevertheless, the defendant argued forcefully that the judge should not take the FSTs into account, or that he should “discount” their value, because the extent to which such “tests” reliably could be used to measure marijuana intoxication was unresolved. In so arguing, the defendant repeatedly cited to Gerhardt, which was then pending in the Supreme Judicial Court. The court issued its opinion in Gerhardt three months after the defendant's conviction, so the trial judge did not have the benefit of that decision.

In Gerhardt, the court held that a fact finder could consider the observations that police made during the administration of such “tests.” Id. at 783-784. At the same time, given the lack of scientific correlation between performance on FSTs and impairment from marijuana, the court laid down certain limitations on the use of such evidence. Id. For example, the court determined that “a witness testifying to the performance of FSTs in the context of marijuana intoxication should refer to a driver's performance on ‘roadside assessments,’ so as not to suggest that they function as scientific validation of a defendant's sobriety or intoxication.”4 Id. at 785. In addition, the court stated that “the fact that FSTs cannot be treated as scientific ‘tests’ of impairment means that evidence of performance on FSTs, alone, is not sufficient to support a finding that a defendant's ability to drive safely was impaired due to the consumption of marijuana, and the jury must be so instructed.” Id.

Relying on the judge's comment that he convicted the defendant “based on the balance and coordination test,” the defendant maintains that the judge found that the defendant's performance on that FST was the only credible evidence of intoxication. Therefore, the defendant continues, under one of the rules established by Gerhardt, he is entitled to a judgment of acquittal. We are unpersuaded. Gerhardt established that the judge properly could have taken into account the defendant's performance on the balance and coordination roadside assessment. Id. at 783. Moreover, as is evident from the recitation of the evidence laid out above, the defendant's performance on the FSTs was not the sole evidence potentially supporting his guilt. We do not view the judge's informal comment as stating that he had found no other credible evidence of the defendant's guilt; at most, the comment signals that the judge considered the defendant's performance on the “balance and coordination test” to be an important piece of evidence that may have tipped the scales for him. The defendant is not entitled to a judgment of acquittal.

*3 Nonetheless, based on at least three factors, we lack confidence that the judge correctly instructed himself regarding what use properly could be made of FSTs in the context of this case.  See Commonwealth v. Kerns, 449 Mass. 641, 650 n.13 (2007) (presumption that judge correctly instructed himself on the law in a bench trial applies only “absent contrary indication”). First, the judge did not have the benefit of Gerhardt (which addressed an unresolved legal issue). Second, the judge himself referred to the relevant FST as a “test,” including it in the very sentence in which he explained why he had found the defendant guilty. Third, in his discussions with the lawyers about the developing case law on marijuana, the judge expressed at least some skepticism about the defendant's arguments that different rules should apply to an OUI involving marijuana than one involving alcohol.

Nor do we have any confidence that any misinstruction on the law had no or little effect.  See Commonwealth v. Santos, 460 Mass. 128, 137–138 (2011), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (“An error is nonprejudicial only if it ‘did not influence the [fact finder], or had but very slight effect .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected’ ”). Although we disagree with the defendant that the judge's comment from the bench necessarily showed that he found the balance and coordination “test” to be the only credible evidence of intoxication, it does appear to indicate that he placed significant reliance on the defendant's performance on that “test.”

Moreover, the publication of Gerhardt reveals that the judge erred in overruling the defendant's objections to the officer giving his lay opinion that marijuana had certain effects on the body, and that the defendant was under the influence of marijuana. See Gerhardt, 477 Mass. at 785-786. We cannot say that such opinion testimony had little impact on the judge's guilty finding, and plainly the combination of the two errors entitles the defendant to a new trial on that conviction.

Conclusion. The judgment on count one is vacated, and the finding of guilty on that count is set aside.

So ordered.


All Citations

94 Mass.App.Ct. 1112, 119 N.E.3d 354 (Table), 2018 WL 6332201



The panelists are listed in order of seniority.


The defendant was also convicted of driving with a suspended license (count two); that matter was placed on file for one month, and is not before us. He was separately charged with a civil lane violation (count three). The judge does not actually appear to have expressed his views on that violation, but when the clerk stated the finding on that claim was “not responsible,” the judge did not correct that statement. In any event, a finding of not responsible for the lane violation was entered on the docket, and we will assume for purposes of our analysis that the judge found the defendant not responsible for it.


Testifying in his defense, the defendant denied having smoked marijuana or having admitted this to the officer. According to the defendant, it was a passenger only who had smoked marijuana in the car. Of course, the judge did not have to credit the defendant's testimony.


The court further explained that an officer cannot say whether the defendant “pass[ed]” or “fail[ed]” the FSTs, or indicate whether a defendant's performance on the FSTs “indicated impairment.” Id. at 776.


94 Mass.App.Ct. 1120

Appeals Court of Massachusetts.
Entered: January 31, 2019.

By the Court (Milkey, Maldonado & Kinder, JJ.1),


*1 After a jury-waived trial, a judge convicted the defendant, Evens Fleurancin, of operating a motor vehicle while under the influence of marijuana (OUI-marijuana).2 G. L. c. 90, § 24 (1) (a) (1). On appeal, the defendant contends both that the Commonwealth's evidence failed to satisfy the element of impairment and that the judge committed prejudicial error in admitting opinion testimony from two police officers regarding the defendant's intoxication from marijuana ingestion. Concluding that the evidence of intoxication was sufficient to sustain a conviction but not strong enough to overcome the prejudice stemming from the inadmissible opinion testimony, we reverse the judgment and set aside the finding.

Discussion. 1. Sufficiency of impairment evidence. In reviewing questions regarding the sufficiency of the evidence, we must discern “whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Commonwealth v. Penn, 472 Mass. 610, 618 (2015), quoting Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015). This analysis includes evidence we later deem inadmissible. See Commonwealth v. DiBenedetto, 414 Mass. 37, 45-46 (1992), and cases cited. The elements of OUI-marijuana are: “(1) operation of a vehicle, (2) on a public way, (3) under the influence of” marijuana. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). “[T]he phrase ‘under the influence’ refers to impairment, to any degree, of an individual's ability to safely” operate a vehicle. Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (2016).

Here, the Commonwealth elicited testimony that the defendant drove past two police officers without stopping, as the officers, who were conducting traffic control in a construction site, gestured and yelled for the defendant to stop. The defendant ultimately stopped for a traffic light, and the police approached the defendant's car. In speaking to the defendant, one officer smelled the odor of burnt marijuana emanating from the defendant's vehicle, and the defendant admitted to smoking marijuana one hour earlier.

The defendant was then asked to get out of the car, and police observed the defendant forget to unbuckle his seatbelt and struggle to open the car door. Once outside the car, police observed that the defendant moved lethargically and had difficulty answering basic questions regarding his date of birth or where he was coming from. Furthermore, the police administered four field sobriety tests (FSTs), and testified to the defendant's poor performance on these.3

*2 The defendant's failure to stop, the officers' observations of the defendant's demeanor, the defendant's responses to questions posed by the officers, and the defendant's performance on the roadside assessments was sufficient evidence of impairment to sustain the conviction. See Commonwealth v. Connolly, 394 Mass. 169, 173 (1985) (erratic driving unnecessary to prove impairment).

2. Opinion testimony. The defendant challenges the admission of six statements.4 Over counsel's objection to all but one statement, the police witnesses were permitted to testify that (1) “I considered him a danger to the public. I needed to stop this vehicle and get him out of it”; (2) “he appeared high to me”; (3) “he was obviously under the influence of some substance of an alcohol [sic] and we believed he was using some type of drug, marijuana maybe mixed with other things”; (4) “we didn't feel that he was capable of driving the vehicle”; and (5) in response to a follow-up question by the prosecutor, the defendant was under the influence of “marijuana, narcotics.”

As is true for any lay witness, police may opine on a defendant's level of intoxication from alcohol consumption. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013). However, that exception does not extend to marijuana consumption. See Commonwealth v. Gerhardt, 477 Mass. 775, 786 (2017). When it comes to marijuana, police “may [indisputably] testify concerning a defendant's observable appearance, behavior, and demeanor, but [they] may not[,] [as the police did here,] offer an opinion as to the defendant's sobriety or intoxication.” Id.5 Furthermore, whether it be drugs, alcohol, or marijuana, it is never permissible for police, or any other lay witness, to opine that the defendant's intoxication “diminished his ability to operate a motor vehicle safely.” Canty, 466 Mass. at 544. That determination remains within the sole province of the fact finder. See id. at 543-545. Accordingly, because the officers' testimony exceeded the bounds of permissible lay opinion testimony, we conclude that it was error for the judge to allow it, and turn next to its prejudicial effect.6 See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

While we often assume, absent evidence to the contrary, that a judge properly instructs himself as to “the manner in which evidence is to be considered in his role as a factfinder,” Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013), we cannot do so here. At the time of trial, Gerhardt was pending but had not been decided; therefore, our jurisprudence may have signaled that a lay witness could not render an opinion as to marijuana intoxication as there had been no definitive ruling on that issue.7 In such circumstances, we are hard pressed to say the judge clairvoyantly instructed himself to ignore it.

*3 In any event, here, the challenged testimony was repeated several times and referenced by the Commonwealth in its closing. Furthermore, the evidence in this case, while sufficient, was far from overwhelming. Much of the defendant's incriminating behavior had reasonable explanations. For example, the defendant explained that he failed to see police waving to him because he was focused on the stop light.

The defendant also posited plausible explanations for his demeanor and poor performance on the roadside assessments. The defendant argued that he appeared confused and experienced difficulty getting out of the car because he was perplexed as to why police were stopping him. The defendant further explained that he is Haitian, speaks four languages, and is least proficient in English. He attributed, therefore, his failure to answer some of the questions put to him and his missteps on the roadside assessments to this language barrier. To this end, the defendant emphasized, for example, that on the nine-step walk and turn assessment, the defendant walked without swaying, stumbling, or falling off the curve, but failed only to touch heel to toe. In the counting assessment, the defendant counted backwards by tens rather than ones and mixed up only one number, and in the finger to nose assessment, the defendant made contact with his nose but touched the middle to upper part of his nose rather than the bottom tip. There also was no evidence that the defendant drove erratically, and the evidence suggested that he negotiated his way through the construction site without incident.

Given these plausible explanations and the absence of stronger indicia of impairment, we cannot say that the impermissible opinion testimony of two veteran police officers “had but a very slight effect” on the judge. Cruz, 445 Mass. at 591, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Accordingly, the judgment is reversed and the finding is set aside.

So ordered.


All Citations

Slip Copy, 94 Mass.App.Ct. 1120, 2019 WL 386383 (Table)



The panelists are listed in order of seniority.


The judge also convicted the defendant of failing to stop for a police officer. The defendant raises no challenges to this conviction.


The officers referred to these as FSTs; however, given the lack of scientific evidence that these FSTs accurately gauge marijuana intoxication, “a witness testifying to the performance of FSTs in the context of marijuana intoxication should refer to a driver's performance on ‘roadside assessments,’ so as not to suggest that they function as scientific validation of a defendant's sobriety or intoxication.” Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017).


The judge struck one of the statements from the record.  Therefore, we presume that the judge did not rely on it, see Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013), and do not address it here.


The defendant, whose trial concluded before Gerhardt was decided, nevertheless enjoys the benefits of its common-law rule because the opinion was released before he filed his notice of appeal on his direct appeal.  See Commonwealth v. Moore, 474 Mass. 541, 550 (2016) (“new rules” in criminal law “generally apply to cases that are pending, are on direct appeal, or for which the appeal period has not run”).


The defendant objected to all but one of the challenged statements at trial. However, because he lodged repeated objections to the precise line of questioning on the exact basis, we treat the issue as preserved notwithstanding the one missed objection. Cf. Commonwealth v. Paradise, 405 Mass. 141, 157 (1989), quoting Kuczynski v. Alfano, 402 Mass. 1001 (1988)(“failure to make repeated objections to the judge's conduct is not fatal on appeal”).


Arguably, admission of this opinion testimony was improper at the time of the defendant's trial without the guidance of Gerhardt because, while Canty, 466 Mass. at 544, and other cases allowed lay witnesses to testify to alcohol intoxication, there was no precedent in Massachusetts that we are aware of which had extended that exception to marijuana or to any other drug.