Recently, our neighboring state Connecticut considered a medical marijuana law that caught the eye of many people. Essentially, the law would provide access to marijuana to those people suffering from diseases like Multiple Sclerosis, Glaucoma as well as several other painful conditions to make their lives a little bit easier. If something like that passed here, the concept of medical marijuana would be treated the same way we treat other medically prescribed substances. If you have a prescription for a substance like oxycodone you are allowed to possess it and cannot be criminally charged for it. Of course, even if a substance is medically prescribed, or possessing it is not a crime, there are still criminal laws that might apply as a result of consuming that substance.
One such law is the offense of Operating Under the Influence of Drugs. Mass. Gen. Laws c. 90, §24 has a specific provision that criminalizes driving around while intoxicated by a drug. It applies whether your possession of that drug is legal or not. The offense is very similar to OUI – Liquor and the elements are: a) operation of a motor vehicle, b) on a public way, c) while under the influence. Are you sitting on a back road with the windows rolled up, just chilling in a thick cloud of smoke? Chances are the radio is on too. This means the keys are in the ignition and the electronics system of the car is activated so you are considered to be operating the vehicle in the eyes of the law. And you’re doing so on a public way. When that officer comes to the window and you, unintentionally, do a damn fine impression of Hunter S. Thompson you are going to be under arrest for suspicion of OUI-Drugs. But, wait, you say. I was simply possessing a personal amount of marijuana which is decriminalized. Maybe you were, but you were also violating a very specific criminal law.
In a similar circumstance, what if a person is prescribed a powerful narcotic for pain management? It is very important that same person takes the prescription in a measured way and remains aware of their behaviors to prevent an unintentional mistake with criminal consequences. Whether your prescription is one of those that can lead to prosecution depends on whether it falls within the definitions of controlled substances in Mass. Gen. Laws. c. 94C §1. And that definition is very broad. As a general rule, if your prescription is an opiate or a derivative of the coca plant be careful.
As I mentioned in another article, if you are charged with OUI the Commonwealth still has to prove their case. One of the things they will need to prove is that not only did you consume a substance but also that the substance impaired your ability to safely operate your motor vehicle. Anyone who has seen a person all amped up and erratic or doped out and falling asleep knows that neither one is good for driving.
If you are pulled over, and taking a prescription, the right to remain silent and the ability to refuse sobriety testing applies here just as if you are suspected of being drunk. Similarly, your silence and refusals will not be admissible at a trial. The type of evidence, however, that will be admitted is what a police officer or civilian witness experienced in your presence. For example, if you tell the officer you just received a codeine prescription for short term pain and you just couldn’t seem to keep your car on the road that will be in evidence. Or if you recently increased anti-depressant medication levels and your mind was racing you might be driving a little too fast, make some erratic lane changes and talking a million miles an hour during conversations at the roadside.
The realities behind OUI-Drugs and OUI-Liquor are the same: people who choose to ingest substances need to be careful because cars are dangerous things in the wrong hands. With that in mind, whether you are recreationally smoking marijuana or managing your pain with legal prescriptions you need to remember to do so safely.