Prosecuting OUI Drug Cases Are Harder Than Cases Involving Alcohol

Operating Under the Influence of Drugs (OUI Drugs) is a serious criminal offense in Massachusetts that can result in jail time, fines, loss of your drivers license, and a criminal record. An OUI Drugs is very similar to a drunk driving or OUI alcohol case and we approach both cases essentially the same way.

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The prosecution needs to prove the three elements in an OUI alcohol case in order to find a defendant guilty:

  1. The defendant was operating a motor vehicle;
  2. The defendant operated said motor vehicle on a public way; and
  3. The defendant was intoxicated or under the influence of drugs at the time of the operation.

Most police departments will charge a defendant with OUI Alcohol over OUI Drugs if they can. That is because it is easier for prosecutors to prove a defendant was operating under the influence of alcohol. However, each case is unique so we invite you to contact us for a free legal consultation so you can learn more about the charges you are facing and your best legal options.

The following are a few reasons why it is generally more difficult to prosecute an OUI Drugs case than an OUI Alcohol case.

Banned Drugs

“Under a unanimous ruling by the Supreme Judicial Court, Massachusetts police officers can no longer cite their subjective on-scene observations or sobriety tests to conclude in court testimony that a driver was under the influence of marijuana. In limiting the use of the familiar roadside tests designed to provide an approximate measure of drunkenness — walking in a straight line, standing on one foot, and so on — the court found there is no scientific consensus those tests definitively prove someone is intoxicated by marijuana.” Boston Globe

At trial, the prosecution is not allowed to allege that the defendant was simply under the influence of drugs. They have to prove beyond a reasonable doubt that the defendant was operating under the influence of one of seven banned categories of drugs:

  1. Central Nervous System Depressants(i.e., barbiturates, tranquilizers, and anti-anxiety medications like valium, librium, Xanax, klonopin)
  2. CNS Stimulants (i.e., cocaine, methamphetamines or amphetamines)
  3. Hallucinogens (i.e., molly, MDMA, or LSD)
  4. Dissociative Anesthetics (that turn the brains’ pain receptors off)
  5. Inhalants (i.e., glue, paint, and hair spray)
  6. Cannabis (aka pot, weed, marijuana)
  7. Narcotic Analgesics that increase euphoria and reduce pain (i.e., opium, heroin, morphine, codeine, Percocet, Oxycontin, and Vicodin)

Marijuana Exception

If the defendant does not have any of the drugs in the vehicle or on him then the police have no way of telling what drug the defendant was allegedly under the influence of. Marijuana is an exception, as it leaves a strong odor on the clothes and in the vehicle after it is smoked which allows police to charge OUI Marijuana even if there is no other evidence of marijuana use.

Lack of Trained Officers / Qualified Drug Recognition Experts

Usually only one, or only few police officers in each department are qualified as a Drug Recognition Expert (DRE). DREs undergo extensive training which qualifies them to perform a set of tests in a standardized method which is supposed to allow a police officer to determine if a vehicle operator’s impairment is related to drug use. It involves a series of tests which include the following:

  • Series of Periodic Vital Signs Examinations: A person’s normal resting heart rate is anywhere between 60 and 90 beats per minute. Someone that is under the influence of stimulants like methamphetamines will have tachycardia (an abnormally high heart rate.) Someone under the influence of an anti-anxiety medication like klonopin or a narcotic pain killer like Oxycontin will have bardycardia, which is an abnormally slow heart rate. The same goes for body temperature and blood pressure.
  • Dark Room Eye Examination: The muscles in our eyes allow our pupils to get bigger or smaller in response to changes in light levels. Drugs that are nervous system stimulants like cocaine cause our pupils to grow larger than normal (mydriasis) while central nervous system depressant drugs like heroin and Vicodin constrict our pupils which is known as Miosis. This dark room examination allows police to measure the pupil size as it reacts to changes in light. The change in pupil size is supposed to indicate the type of drug that was used.
  • Muscle Tone Examinations: Certain drugs can cause our skeletal muscles to become rigid while other drugs like opiates and alcohol can cause them to become flaccid.

The average police officer is not a DRE; therefore, they cannot perform an examination or make a determination as to whether an operator of a vehicle was impaired due to drug use. The validity of these tests can be contested at trial as they are neither foolproof nor 100% accurate.

The vast majority of police officers have only been trained to perform a series of field sobriety tests which were specifically developed to detect impairment due to alcohol. These tests are useless when it comes to detecting impairment by drugs.

Expert courtroom testimony is usually required in order for the prosecution to prove the defendant was under the influence of a specific drug. Expert testimony is also required in order to prove that a specific drug is capable of diminishing a human’s ability to safely operate his or her vehicle. Police officers do not have the training or education to give this scientific testimony in court.

Charged with Operating Under the Influence of Drugs? Talk to an Experienced OUI Drugs/DUI Attorney For Free

OUI drug cases are a relatively new and developing area of law. You must hire an attorney that has experience handling this specific type of case and that is keeping up with all the latest legal and scientific developments. Our firm has defended several clients at trial that were charged with OUI drugs. We have obtained several not guilty verdicts. We have the experience.  No matter where you are located, we are just a phone call away.

Call The Law Offices of Gerald J. Noonan to schedule a free no-obligation case review and consultation at (508) 588-0422 and you will have taken your first step to find out how best to confront this important matter. You can also click here to use our Free Case Evaluation Form.

Sample Case Results


Client, 55-year-old, professional van driver, was arrested and charged with OUI (drugs) and other charges stemming from an incident on February 16, 2012. A State Trooper observed the Defendant’s vehicle speeding in Brockton and attempted to pull him over for Speeding. A total of three state police cruisers pursued the Defendant’s vehicle in an effort to effectuate a motor vehicle stop. Eventually, one police cruiser boxed Defendant’s vehicle in. The state trooper removed Defendant from the driver’s seat. The Trooper detected a strong odor of alcohol on the Defendant and observed that the Defendant had urinated in his pants. Defendant’s speech was slurred and his eyes were glassy and bloodshot. The Defendant admitted to consuming vodka or schnapps. Defendant stated that he ingested Xanax, Percocet, and Vicodin in combination with the vodka / schnapps. Police found syringes loaded with Heroin, burn spoons, glass pipes, and soaked cotton swabs in the vehicle. Defendant was administered and failed the HGN test, Hand Eye Coordination Test, Alphabet Test, One-Leg Stand, and Nine Step Walk and Turn. For 28 years, Defendant was employed as a professional van driver transporting elderly and disabled people. After his arrest, his employer laid him off and Defendant remained out of work during the pendency of his case. Defendant collected unemployment, went on assistance, and collected food stamps.

Result: Attorney Patrick J. Noonan dismissed all charges “with prejudice,” which means that the prosecution can never pursue the charges again, and the client is able to return to work.

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Our knowledgeable and experienced Massachusetts DUI attorneys at The Law Offices of Gerald J. Noonan are available to assist clients throughout all of Southeast Massachusetts, including but not limited to Plymouth County including Brockton, Abington, Bridgewater, Whitman, Hanson, Hingham, Wareham, Halifax, Middleborough, Rockland, Lakeville, Holbrook, Avon, Kingston, Pembroke, Plympton, Pembroke, Hanover, Carver, Duxbury, Marshfield, Norwell, Hanover, Scituate, East/West Bridgewater, Rochester, Marion, Mattapoisett; Norfolk County including Quincy, Stoughton, Dedham, Weymouth, Braintree, Avon, Holbrook, Randolph, Canton, Sharon, Wrentham, Foxborough, Franklin, Walpole; Bristol County including New Bedford, Fall River, Taunton, Attleboro, Mansfield, Easton, Raynham, Norton; Cape Cod, Falmouth, Barnstable. Middlesex County including Cambridge, Lowell, Somerville, Newton, Framingham, Malden, Chelsea, Everett, Arlington, Medford and Waltham; and the Greater Boston area including South Boston, Worcester, Framingham, Woburn, Lynn, Lawrence, Salem, Dedham, Revere, Dorchester and Roxbury.