SINCE MASSACHUSETTS LEGALIZED recreational marijuana, Gov. Charlie Baker has been pushing the Legislature to also update the state’s laws against driving under the influence of drugs.
But a lengthy discussion by the state’s marijuana regulators on Thursday illustrated the immense challenges lawmakers will face should they choose to move forward with the governor’s bill.
Overall, all five members of the Cannabis Control Commission voiced support for urging the Legislature to update state laws on operating under the influence to better account for drug-impaired driving. But they shied away from supporting specific legislative provisions, noting the lack of available technology to detect marijuana impairment and the dangers of racially biased enforcement of driving laws. Lawmakers will likely insist on resolving those issues before they move forward with a bill.
Commissioner Kimberly Roy, who took the lead on the issue for the commission, said the commission is explicitly not endorsing a specific bill or scientific method of detecting impairment, but commissioners want lawmakers to evaluate the different methods. “It’s not our position to specifically say which tools are the best tools in the toolbox,” Roy said.
Commissioner Ava Callender Concepcion, whose background is in social justice and public safety, said after the meeting that she would support the Legislature delaying passage of any bill until the science of detecting impairment is better and the appropriate data collection provisions are drafted. “The reality is the science is not there yet. We do not have it. Until we do, how can we act?” Conception said. “My concern is about getting it right, not about the time.”
The commission unanimously adopted a statement of policy, which it will bring to the Legislature, saying that the commission supports legislation that strengthens laws against driving under the influence. It continues, “The Commission further supports legislation that protects civil rights, racial justice, data collection on gender and race that ensures equitable enforcement of the law. The statement also mentions the need to advance the “science-based technology needed to accurately assess cannabis impairment.”
Baker, an early opponent of marijuana legalization, has been pushing for a bill that he has framed as treating driving under the influence of marijuana the same way as driving under the influence of alcohol. Currently, impaired driving with any substance is illegal. But it can be harder to prosecute driving under the influence of marijuana. One main reason is there is no objective standard comparable to a breathalyzer or blood alcohol test for alcohol for determining when someone is under the influence of marijuana.
Baker’s bill would automatically suspend someone’s license for refusing to take a test for drug impairment, just as someone’s license can be suspended for refusing to take a test for alcohol. It would extend open container laws to marijuana, set judicial standards related to drug-impaired driving, and make other changes, all of which were recommended by a special commission that examined the issue. A separate proposed bill would create a standing commission on operating under the influence to regularly review issues related to impaired driving.
Roy, who was appointed to the commission for her public health and safety background, said she believes Massachusetts has “fallen asleep at the wheel” on updating laws on operating under the influence. She worried that Massachusetts, which was the first East Coast state to legalize recreational marijuana, will end up with the “dubious distinction of being the last” to update laws to protect roadways from those driving under its influence.
Roy cited statistics statewide and nationally indicating the marijuana-impaired driving has increased over the years. According to the Massachusetts Department of Transportation, there were 58 drugged driving fatalities between 2015 and 2017, and 202 drugged driving fatalities between 2018 and 2021. Nationally, drivers who are seriously or fatally injured in crashes are increasingly likely to have both marijuana and alcohol in their system.
Marijuana use leads to delayed reaction times, distorted perception, and other impairment that results in dangerous driving.
Yet commissioners acknowledged that while enforcing impaired driving laws is important, there is little consensus on how to do it. There is currently no validated test to detect marijuana impairment. The police generally use a combination of blood tests and specially trained drug recognition experts, who can perform field sobriety tests that involve asking people to complete certain tasks.
“A person can be impaired for a couple of hours, and THC can continue to be detected within the body for weeks after that time,” Concepcion said. Someone’s tolerance for the drug and the way they ingest it – by smoking or eating – can also affect their level of impairment.
Commissioner Nurys Camargo, a long-time advocate for communities of color, added, “If the science is not there yet, there’s gaps… we have to be careful what message we’re sending to the State House.”
Matt Giancola, director of government affairs and policy for the Cannabis Control Commission, said five states have specific limits, where if someone has a certain amount of THC in their blood, they are considered impaired. Twelve states have zero tolerance for THC in a driver’s blood.
The commissioners also voiced concerns, which are likely to resonate in the Democratic-led Legislature, that enforcement of drugged driving laws could disproportionately harm Black and Latino residents, because of bias in enforcement. Camargo said these are the individuals who historically have been “pulled over while Black, pulled over due to unconscious bias.”
Concepcion said including data collection on race and ethnicity would be vital to any law to ensure it is being enforced fairly without bias.
Legislative committees have until February 2 to report bills out of committee, though lawmakers frequently delay that deadline. So far, lawmakers have not acted on any of the bills regarding operating under the influence.
Asked after the meeting whether it is reasonable for the Legislature to pass a law this session give the concerns about science and racial bias, commission chairman Steven Hoffman said that is up to lawmakers, but other states have strengthened their impaired driving laws. “Massachusetts is one of the outliers that hasn’t taken action,” Hoffman said. “Other state legislatures and executive branches have found a way to at least start to address the issue.”
The discussion could also play a role in ongoing efforts to allow marijuana cafes. Although the ballot question legalizing marijuana authorized “social consumption sites,” commissioners have said lawmakers need to make a technical fix to the law related to the way municipalities must vote to allow sites in their communities. The Legislature has not yet acted on the fix.
Roy, citing public safety concerns, said she would oppose the authorization of social consumption sites unless the Legislature updates the driving under the influence laws. “It’s like putting the cart before the horse,” she said.
Baker – who would have to sign into law any bill that passes the Legislature – has previously voiced similar concerns.