• Prosecutors, police struggle to convict suspected drugged drivers

    By: Jason Law

    Updated:

    Sgt. Deb Batista is confident she can tell if you're high.

    Batista is a certified Drug Recognition Expert with the Middleborough Police Department. She evaluates drivers suspected of operating under the influence of drugs.

    Her observations can be the difference between whether or not someone spends the night behind bars. 

    But Batista said some of the most important people in the justice system don't believe she is an expert. 

    "It depends on the judge," Batista said. "Have I been prepared for trial and they’ve dismissed the case? Yeah.”

    Batista said some judges won't allow her testimony into evidence. 

    "It's a total lack of consistency,' Batista said. "[Some] courts are just, 'We're not going to entertain it at all.'"

    Since there is no breathalyzer or swab to determine the level of a driver's impairment in the moment, police rely on a DRE's observations to determine a driver's level of impairment. 

    >> Marijuana Mile: Driving test highlights challenges for Mass. lawmakers

    But prosecutors have had trouble trying OUI Drug cases in Massachusetts.

    Boston 25 News requested two years of statistics from District Attorney's Offices across Greater Boston. The data revealed a disproportionate amount of OUI Drug cases that were dismissed when compared to OUI cases involving alcohol. 

    Plymouth County 

    Out of 514 OUI DRUG cases filed and closed in 2017-2018, 227 (or 44%) were dismissed by the court. 

    Compare that to 2,257 OUI ALCOHOL cases filed and closed in the same time period, and 307 (or 14%) were dismissed. 

    Essex County 

    Out of 429 OUI DRUG cases filed and closed in 2017-2018, 126 (or 29%) were either dismissed, the defendant was found not guilty, pleaded to a lesser charge or “nolle prosequi” the prosecutor did not pursue. 

    Compare that to 1,982 OUI ALCOHOL cases filed and closed in the same time period, and 243 (or 12%) were dismissed, the defendant was found not guilty, pleaded to a lesser charge, or the prosecutor chose not to pursue.

    Norfolk County

    Out of 242 OUI DRUG cases filed and closed in 2017-2018, almost half, 110 (or 45%) were either dismissed, the defendant was found not guilty or “nolle prosequi” the prosecutor did not pursue.

    Compare that to 1,404 OUI ALCOHOL cases filed and closed in the same time period, and 309 (or 22%) were dismissed, not guilty or not pursued. 

    Worcester County

    Out of 431 OUI DRUG cases filed and closed in 2017-2018, 114 (26%) were dismissed.

    Compare that to 3,729 OUI ALCOHOL cases filed and closed in the same time period, and 201 (or 5%) were dismissed.

    Barnstable County

    Out of 256 OUI DRUG cases filed and closed in 2017-2018, 27 (or 10%) were dismissed but 184 (or 71%) were prosecuted on an accompanying charge like OUI ALCOHOL or OPERATING TO ENDANGER.

    Compare that to 1,397 OUI ALCOHOL cases filed and closed in the same time period, 212 (or 15%) were dismissed.

    Suffolk County 

    Out of 240 OUI DRUG cases filed in 2017-2018, at least 54 (or 18%) have been dismissed by the court. It’s unclear how many of those cases are still active, according to records obtained from the Suffolk County District Attorney’s Office. 

    Compare that to 930 OUI ALCOHOL cases filed and closed in the same time period, and 205 (or 22%) were dismissed, not pursued or the defendant was found not guilty. 

    "Typically [OUI Drug] cases [involving cannabis] are very strong for the defense because the science really hasn't caught up to the law," said Michael DelSignore, a defense attorney in Stoughton. 

    DRE's have been used in law enforcement for decades. The two-week training process is certified by the National Highway Transportation Safety Administration and includes administering a 12-step assessment that involves interviews, field sobriety tests, and measuring vital signs, like pulse, temperature and blood pressure. 

    But civil rights advocates argue DRE's are not medically qualified to determine the level of a driver's impairment. 

    A Maryland court ruled in 2012 DRE's are “not sufficiently qualified to render an opinion…[their] testimony is not relevel ant.”

    Massachusetts’ highest court has not ruled whether DRE's are expert witnesses. It's left up to the discretion of the trial judge. Some allow it. Others do not. 

    DelSignore said he often challenges a DRE's testimony in trial. 

    "I would file a motion to say the officer doesn’t have the experience or the training, that this is basically a police training. They’re not doctors, they’re not pharmacologists. They can’t make this determination," DelSignore said.

    There is also a startling lack of DRE's across the commonwealth. Massachusetts has only 147 certified DREs, or one for every 46,000 residents. That can make it hard to reach one when a driver is suspected of driving while high, particularly in a rural, less-populated area.

    “The hope is we could get a few hundred more, but it’s going to take some time," Batista said. 

    Last month, Governor Baker asked state lawmakers to implement several recommendations made from a special commission on impaired driving. The recommendations included more than doubling the number of DREs and adding marijuana to the state's open container law. 

    The special commission also wants to DREs to be allowed to testify as expert witnesses. 

    “I would like to see judges at least be open to hearing the testimony. That would be a start,” Batista said.

    Until that happens, Batista said she will continue to apply the same 12-step assessment she's administered for 17 years, even if it's not entered into evidence. 

    "You can’t get frustrated when that happens," she said. "The bottom line is you got the person off the road and the roadway was safe, at least for that night."

    SJC rules local police can use observations to make drugged driving arrests

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