Although the recreational use of marijuana is now legal in the state of Massachusetts, it is still illegal to drive while under the influence of marijuana. According to chapter 90, section 24 of Massachusetts General Law, you can be charged with an OUI if you drive a motor vehicle “while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances… or the vapors of glue.”

Finally, a first or second offender often has the option to admit to sufficient facts (which is not the same as admitting guilt) and accept a Continuance Without a Finding (CWOF). In return, you won’t be convicted (but will serve probation) and you’ll also benefit from a reduced license suspension of 45-90 days.

Commonly used painkillers like Vicodin and OxyContin are completely legal to consume in the instructed manner when prescribed by a doctor, but this won’t prevent you from being convicted of OUI if you drive a vehicle while under the influence of drugs.  Prescription or not, the government recognizes that certain drugs can impair your ability to drive.

If it can be proven that you were made aware of the impairing side-effects of a prescribed drug (via a written warning, clearly marked label, or signature confirming that you were advised by a doctor or pharmacist), it’s your responsibility to avoid taking prescription drugs and driving while they are in your system. However, if it can be shown that you were not given adequate warning of impairment, it may be possible for a defense attorney to argue that you were involuntarily intoxicated.

The government must establish that a drug was in your system and in enough concentration to impair your ability to drive. This can be difficult, in practice, but the court has several avenues. Blood and urine tests aren’t necessarily accurate. They can’t determine whether the drug marijuana was actually used, for example, as TCH lingers in the human body for days or even months after it has been consumed.

Even if concentration can be established, the court may need to use expert testimony (that a particular amount of a drug would impair your ability to operate a vehicle safely) to strengthen its case. A “Drug Recognition Expert” (DRE) is a specially trained police officer whose duty is to determine whether or not a driver is under the influence of drugs and what type of drugs they are on. The DRE’s testimony can be used in court only if the government is able to establish the reliability of the DRE protocol and the testimony derived from it.

A first or second conviction for drugged driving is technically punishable with jail time, but this rarely happens in practice. This is because most first and second OUI offenses (of any type) are resolved through a Continuance Without Finding and a 24D alternative “Second Chance” disposition that requires an educational rehabilitation program and probation in lieu of jail time.

If this is your third or subsequent OUI offense, even if the others were for drunk driving and this one is for drugged driving, you’ll be facing a mandatory minimum jail sentence for conviction (with no eligibility for alternative 24D sentencing). This means it is in your best interest to fight the case and require the government to live up to its challenging standard of proof for drugged driving. If you are able to win the case, you will not face jail time for OUI drugs.