A marijuana legalization group has launched an effort to legalize the drug for recreational purposes in Massachusetts. But the governor, attorney general and other officials have refused to back the proposed ballot question, in part because of concerns the Commonwealth could see an uptick in car accidents.
A recent Report of the Special Senate Committee on Marijuana, penned in March 2016, raised a number of issues about legalization, not the least of which was the fact there is no well-accepted standard for ascertaining driver impairment from marijuana intoxication. There is no equivalent test to an alcohol breathalyzer for marijuana. These factors make it tough for officers to make arrests and for prosecutors to obtain convictions.
As far as civil law, the Boston car accident attorneys at The Law Offices of Mark E. Salomone know that plaintiffs injured by impaired drivers need not prove the driver was intoxicated at the time of a crash to obtain damages. Rather, plaintiff must show the at-fault driver was negligent, i.e., failed to use reasonable care.
Of course, proof that the driver used drugs or was impaired before getting behind the wheel can help to bolster that claim - but it isn't necessary. One needs to show:
- Driver owed a duty of reasonable care;
- Defendant breached that duty of care;
- Defendant's breach of care caused plaintiff's injuries;
- Plaintiff suffered losses and/or was injured.
Other states that have approved marijuana legalization measures have simultaneously established more stringent marijuana impairment laws. Voters in Washington state, for example, made recreational marijuana legal, but also established a marijuana DUI statute that makes it unlawful for drivers to operate motor vehicles with .05 nanograms or greater of THC in the blood stream, as determined by a lawful blood draw analysis.
In Massachusetts, M.G.L. Ch. 90, Section 24 prohibits the act of driving "while under the influence" of marijuana, though it leaves a determination of that condition up to the subjectivity of the police and prosecutors.
Massachusetts decriminalized the drug in 2009. Five years later, it allowed for the introduction of medical marijuana.
According to the National Highway Traffic Safety Administration's Drugs and Human Performance Fact Sheet on Cannabis, the Schedule I substance experienced:
- Decreased motor coordination
- Lethargy
- Paranoia
- Memory problems
- Fatigue
- Mood alterations
- Disorientation
- Altered time and space perception
- Lack of concentration
- Alteration in thought formation and expression
Any one or all of these could have a serious impact on a driver's ability to safely operate a motor vehicle, leading to an increased risk of car accidents.
Epidemiology data from road traffic arrests and deaths indicate that behind alcohol, marijuana is the No. 1 most detected, potential harmful psychoactive substance among drivers. Although it's dangerous for anyone to drive impaired, marijuana users may be particularly at risk during monotonous and prolonged driving, the NHTSA reported.
If marijuana did become legal for recreation, it's unclear whether those injured in car accidents with marijuana-impaired drivers could take legal action against marijuana dispensaries under Massachusetts' dram shop law, M.G.L. Ch. 138, Section 69. Currently, the statute only places potential liability in the laps of those who sell alcoholic beverages to persons who are already intoxicated.
Currently, other states that have approved recreational marijuana have not broadened their dram shop laws to include injury caused by cannabis impairment.
In Massachusetts, whether the legalization measure passes or not, vehicle owners who knowingly allow their cars to be used by someone else may be vicariously liable for that driver's negligence - even if the owner was not directly negligent. There could also be a claim of direct negligence against the vehicle owner for negligent entrustment if he or she knew the driver was impaired and granted permission to use the vehicle anyway.