Archive for the 'Criminal Law' Category

Preventing Rapists from Obtaining Child Custody

Many child custody cases are heart-breaking, but the most horrific cases involve children who were forcibly conceived. The law struggles with what appears to be the easiest of questions: do rapists have child custody rights?

The Horrific Case of Tiffany and Christopher Mirasolo

In September 2008, 12 year old Tiffany and her sister slipped out at night to meet a boy. The boy’s older friend, 18 year old Christopher Mirasolo, offered to take the girls on a car ride. Instead, Mirasolo held them captive in a vacant house for two days. After raping Tiffany, he released the girls, but threatened to kill them if the girls reported him.

When Tiffany became pregnant, Mirasolo was arrested. He was sentenced to a year in county jail, but only served half a year, to look after his sick mother. Mirasolo was arrested for a second sex assault on a teenage victim two years later. He only served 4 years in prison.

Meanwhile, Tiffany struggled to support the son she gave birth to as a pre-teen. She skipped high school and went straight to work to support her boy. Unfortunately, Tiffany did not make enough money to support her child, so she applied for welfare. Shockingly, state welfare services would not help her unless she named who the father was. When Tiffany named Christopher Mirasolo as the father, state support service filed a support claim on Tiffany’s behalf. The support claim resulted in Tiffany sharing joint child custody with her rapist.

child custodyWhy Would the Judge Grant Joint Legal Custody?

Many states have guidelines and/or laws limiting how welfare is distributed. When Tiffany applied for welfare as a single mother, the state likely has an automatic process whereby it attempts to obtain child support from the father before providing welfare. The goal of course is to save taxpayer money and to transfer the obligation of supporting the child to the responsible party, the other parent.

In order for the state to order a man to pay child support, he must be proven to be the father of the child. Ordinarily, this would be a reasonable policy. The state cannot force people to be couples, but it can try to force people to be responsible for the offspring they create. However, all these reasonable policies and assumptions break down when it is obvious that the mother and father should not be in the same room. Judges have discretion to determine custody arrangements, but judges are bound by state law. Unless there is a statute that prohibits a judge from granting joint custody, most judges will err on the side of joint custody.

However, states vary in how they approach rape and child custody. In 20 states and the District of Columbia, a rape conviction is required before termination of parental rights is allowed.  Five states, Wyoming, North Dakota, Minnesota, Alabama and Maryland, do not have any laws prohibiting rapists from obtaining child custody. Since criminals are primarily state laws, the most the federal government can do is encourage states to enact laws barring child custody to rapists. The Rape Survivor Child Custody Act, signed by President Obama in 2015, gives states funds for passing laws that prevent convicted rapists from obtaining child custody. That’s the extent of the federal government’s involvement in custody and criminal cases though.

How Can We Change Course?

According to the American Journal of Obstetrics and Gynecology, about 5% of rape victims become pregnant as a result of rape; that’s about 32, 101 pregnancies per year. In percentages, the number is not high. However, each pregnancy because of rape brings out legal and ethical issues that impact both the mother and the child.

First, raising a child together is arguably a more intimate relationship than sex itself.  I have sat through custody hearings where the judge reminds young parents that “you will likely see each other at your child’s teacher-parent meeting, soccer games, college admission tours, wedding, and the birth of your grandchildren. The commitment you made when you decided to have a child together is not a commitment that ends in 18 years; it is a lifetime commitment.” Normally these are words of wisdom. Forcing a rape victim to forge this daily and emotional relationship with the rapist would only lead to more traumas and would likely reduce the victim’s ability to take care of herself, let alone her child.

Second, forcing the child to spend time with the rapist/father would endanger the child. If someone like Mirasolo was willing to kidnap and rape a 12 year old, there is no guarantee that he would not rape his child. Although the child in the Michigan case is a boy, rape is about power. Endangering the child’s life or threatening to do so would allow someone like Mirasolo to further control his victim. Even if professional supervised visitation is an option, it would not prevent the “father” from using the legal system to further exploit his control over the victim and the child.

If the father is convicted of raping the mother in a criminal court, it is imperative that the law extinguish the father’s custody rights. The risk to both mother and child are too great. Arguably, it might be in the best interests of the child to know where he or she came from. However, if the child wants to undertake that journey, they can do so when they are an older and independent adult, able to understand what rape is and why the man who conceived his or her existence is not a good person. If the judge does believe the child might have an interest in being raised by both the victim and the rapist, the judge should at least appoint an independent counsel for the child so that rapist’s arguments do not just outweigh the victim’s interests.

Understanding Gun Rights and Laws in Light of the Las Vegas Tragedy, Part 2: Gun Control Laws

The recent shootings in Las Vegas were the deadliest mass shooting in U.S. history. Mass shootings are not always well defined, some definitions require deaths, some injuries. Regardless of how you define them, the U.S. has more mass shootings than anywhere else in the world. When defined as incidents where more than four persons are shot and/or killed in a single incident, there have been over 270 incidents in the U.S. in 2017 alone–close to one per day. Statistics like these, in the face of such a devastating tragedy, have naturally given rise to questions about gun laws in the U.S.

Earlier this week, we’ve discussed the rights granted by the Second Amendment-and especially how the last few years of Supreme Court rulings have drastically expanded the individual right to bear arms. Essentially completely reinventing the constitutional right from an extremely limited one–basically just limiting the federal government–into something that applies to both individual citizens and the separate states.

Gun violence is a serious problem in the U.S. However, these recent changes have had an enormous impact on the type of gun control laws deemed constitutional. Steven Paddock, the perpetrator of the Las Vegas shootings, had dozens of legally purchased guns in the hotel room from which he opened fire on concert-goers. He tried to buy tracer ammo–pyrotechnic ammunition which leaves an illuminated trace of its path–at a gun show just a few weeks before the shooting. Mr. Paddock was prevented from using this ammo for his massacre not by gun control laws, but because the vendor he attempted to purchase the ammunition from had already sold out.

gun controlAuthorities have no motive for the shootings, but believe Paddock had serious undiagnosed mental issues. However, with no documented mental health issues and no criminal history, the gun laws of California and Nevada allowed Paddock to purchase all of these guns, over one and a half thousand rounds of ammunition, and fifty pounds of explosives. With this in mind, it’s no surprise gun control laws have been in the spotlight. Let’s take a look at how gun control laws are currently handled across the U.S., newer developments in gun control, and steps that might help prevent another Paddock.

Common Gun Control Laws

First and foremost, how gun control is handled will often vary substantially from state to state. Federal laws cover a fair bit–limiting the sale of some types of firearms as well as how firearms can be sold. For example, there are federal limitations on sales across borders and through the mail. There are also federal limitations on sale of firearms to people with mental illness, felons, non-citizens, and minors. These laws can also punish somebody for a sale where they have reason believe the purchaser falls into one of these categories. However, every state except for California, Iowa, Maryland, Minnesota, New Jersey, and New York have an independent right to bear arms in their state constitution and their own set of laws that effect the sale, ownership, and carrying of guns–often even expanding on the federal restrictions discussed above. That being said, despite the variations in gun control laws, there are some common rules that a large portion of the states have in force.

Permit and registration requirements are one of the most common limitations placed on gun purchase and ownership. Some states even require gun safety classes prior to purchase and ownership. Waiting periods, a delay between purchase and picking up a gun, are another common restriction with the goal of avoiding heat of the moment crimes. Some states also require a background check before allowing somebody to purchase or own a gun. While federal laws limit sale and ownership of assault weapons–generally defined as semi-automatic weapons capable of holding more than 10 rounds–state laws have also commonly limited some types of assault weapons along with sawed-off shotguns and silencers.

Many states also don’t allow people to carry concealed weapons in public, although that’s far from a hard and fast rule. What is a rule in almost every state, however, is a ban on use and possession of guns in and around schools and government buildings. Some states ban guns in areas that serve alcohol.

It is also common for states to have laws which make it a crime to purchase a gun for somebody else–usually known as straw purchase laws.

These are common laws, but it really only scratches the surface-each state has its own complicated set of laws. What’s more, the changes in the Second Amendment have led to an unprecedented number of constitutional challenges to gun control laws. The Supreme Court expanded the rights of the Second Amendment to individuals and applied them to the states as well as the fed just in the last few years. This has seen a good number of changes in established gun control laws.

Gun Control After Recent Supreme Court Rulings

In the wake of the Supreme Court’s changes D.C., the area whose laws first got overturned by the Supreme Court, has revisited many of their gun control laws. While they found that registration procedures, bans on assault weapons and high capacity magazines, required safety training courses, as well as fingerprinting and photo id requirements did not violate the Second Amendment, they knocked out a slew of other requirements–making guns available for inspection once every three years and making gun owners pass tests on firearms laws among other things. Just a few months ago, D.C. ruled unconstitutional its requirement that limited concealed carry permits for handguns to those who could demonstrate a good reason to the chief of police.

This sort of limitation on concealed carry has been a fairly common target for constitutional challenge in the last several years. For instance, the Seventh Circuit has fairly recently ruled that the Second Amendment protects individual citizens right to bear arms in public as an extension of the right to self defense–ruling a concealed carry ban in Illinois was unconstitutional. On the other hand, the Second Circuit and the Fourth Circuit have both upheld permit-only concealed carry laws.

Other gun control rules that have been upheld in the face of constitutional challenge include prohibitions on minors owning or receiving guns, restrictions on guns in schools or government buildings, straw purchase laws, and restrictions on felons owning guns.

On the other hand, courts have overturned convictions for possessing a firearm after a conviction of misdemeanor domestic violence–challenging long-held limitations on owning guns after felonies and violent misdemeanors. The Ninth Circuit has also extended the new Second Amendment rights to the ability to buy and sell firearms–ruling unconstitutional limits on opening gun stores within 500 feet of residentially zoned districts, schools, day cares, liquor stores, or other gun stores.

There has also been some debate over exactly how strong the new Second Amendment right is. In constitutional law, laws facing constitutional challenge are held up to different levels of scrutiny. Where basically no constitutional right exists rational basis–an extremely low bar–applies. More powerful rights face intermediate or strict scrutiny–requiring narrow tailoring and important government purpose behind a law. Courts have been split over exactly which level of scrutiny to apply, intermediate or strict scrutiny. Regardless of the level of scrutiny the courts ultimately decide on, the changes over the last few years have seen specific targeting of provisions that limit the sale of guns as well as background check and permitting requirements–the sort of limitations that could potentially slowed down somebody like Mr. Paddock.

Limiting Gun Control in the Face of Gun Violence

The changes in how the Second Amendment works in recent years have given rise to an enormous number of challenges to gun control laws across the nation, while the vast majority have not succeeded the challenges that have succeeded call into question limitations on sale and ownership beyond the most well established such as mental disability. This is unfortunate, because these are potentially the most effective types of gun control in the face of a situation such as the shootings in Las Vegas. With a shooter with no recorded mental disability or criminal record, you have to rely on background checks, safety tests, licensing requirements, reporting and registration requirements, etc to help identify potentially dangerous patterns of purchasing firearms and identify people who might be dangerous with a firearm in their hands. Even the restrictions on types of guns, while important, wouldn’t have helped in this case as Paddock modified otherwise legal guns with illegal modifications which made his guns fully automatic.

The obvious flip side to the importance of reporting and permitting requirements is that, given the existence of an individual Second Amendment right which applies to the states, putting this sort of yes or no power in the hands of the government has serious constitutional concerns. That being said, the U.S. has a gun violence problem–period. We need to consider the steps that can be taken to avoid another Las Vegas. We need to focus on what will be most effective at encouraging responsible gun sales and ownership, as well as cracking down on illegal gun running and modification.

Can You Refuse To Vaccinate Your Child During a Divorce?

Rebecca Bredow was sentenced to a week in jail after she refused a court order to vaccinate her nine year old son. Bredow and her ex-husband had initially agreed to vaccinate their nine year old son, but Bredow later decided against it. Bredow argues that the parents had initially agreed not to give their child a vaccination and that it was her husband who changed his mind, in order to obtain leverage over their custody dispute. Their son will be in the care of Mr. Bredow until Ms. Bredow is released from jail.

Michigan allows parents of public school children to waive vaccination for their child, but the parents have to attend an education seminar on the benefits of vaccination first.  Health officials are worried that if children are not vaccinated, diseases such as measles will return. The reappearance of diseases that Americans have not been exposed to in a generation would result in a devastating outbreak. On the other hand, the parents want to waive vaccination are worried that the vaccines will give their children autism. However, scientific studies have largely debunked such claims.

vaccinateAlthough the medical benefits outweigh the falsely reported disadvantages of vaccinations, Bredow was not sentenced because of her opinions on vaccines; the legal facts determined her conviction.

Avoiding Confrontation with the Judge

The default in child custody is joint custody for both parents. People often mistake “joint custody” for “50/50%,” but family law judges will discourage parents from thinking about child custody in percentages. Children are not sacks of flour to be divided between disputing parties. Joint custody is the default child custody because the law presumes that it is in the best interests of the children to have both parents in their lives, not because it is fair to the parents. However, judges can deviate from the default joint custody if joint custody stops being in the best interests of the children.

Ms. Bredow made two mistakes that led to her week long jail sentence. First, she told the judge that it was against her beliefs to give her children vaccines. In a child custody case, the beliefs of the parents are not the deciding factor. In fact, asserting a personal belief in a custody battle can be harmful, since the judge might interpret that statement to mean that the parent is more concerned about his or her personal beliefs than the well-being of the children. In a child custody case, it is always preferable to relate the case back to the best interests of the children instead of arguing about other factors. Instead of saying that vaccines are against her beliefs, Bredow should have argued that the vaccines were potentially harmful to the children.

Second, Bredow publicly stated that she would refuse to obey the court order. There are many legal ways to challenge a court order. Bredow could have appealed the order. She could have filed a motion to reconsider the matter. Or Bredow could have chosen not to stipulate to an agreement in the first place. The worst thing to do though would be to agree to certain terms and then violate the court order to enforce the agreement that the parties made.

Understanding Gun Rights and Laws in Light of the Las Vegas Tragedy, Part One: The Second Amendment

The last week has seen an incredible tragedy in Las Vegas. It’s hard to imagine there are many who have not already heard of the incident. However, for those who have not, on October first a gunman opened fire on a music festival in Las Vegas-shooting concert goers from his room on the 32nd floor of the Mandalay Bay Casino and Resort. As of now, reports place the mass shooting as the deadliest in U.S. history with 58 people killed and 489 injured.

The shooter, Steven Paddock, took his own life after the shooting. Mr. Paddock was a 64-year-old white man. A successful accountant who, according to his family and girlfriend, showed no prior signs of a desire to commit violence before this shooting. Law enforcement has been unable to determine a motive for the heinous acts. However, authorities have reported that they suspect he had undiagnosed mental illness-citing standoffishness in his relationships with others and long days of gambling without human contact. Police also found extensive notes in Mr. Paddock’s apartment, mostly of mathematic calculations regarding distance and trajectory of shots from his hotel into the unsuspecting crowd. However, none of these notes have helped determine Mr. Paddock’s motive.

While learning a motive may help unravel the series of events here. It will ultimately do nothing for Paddock’s many victims. People as young as 20 and as old as 67–teachers, fishermen, nurses, and more–all struck down on a whim by somebody with a high-powered arsenal of guns. Paddock had over 20 guns with him in his hotel room. These guns were mostly rifles and were often modified so as to have fully-automatic firing capabilities. He also had over 50 pounds of explosives and over 1.5 thousand rounds of ammunition. With no limit on the number of firearms which can be owned, all these guns-if not the modifications made to them-were perfectly legal. With no issues in his background, there was nothing to stop Mr. Paddock from purchasing the tools he used for his killing spree at shops all around California and Nevada.

second amendmentNot surprisingly, this horrible tragedy has sparked renewed conversation about how we handle firearms in the U.S. It is an undeniable fact that there are more mass shootings in the U.S. than anywhere else in the world. We’re 31st in gun violence of all countries but far and away first in gun violence among the most developed countries in the world. This is at least partly due to the fact that we simply have more citizen-owned guns per person than anywhere else-we’re less than 5% of the world’s population but have about 50% of the world’s citizen owned guns.

Many have spoken out about Mr. Paddock’s ability to legally gather such an armory and put it to such awful use. The cries for strengthened gun control have been louder than ever-for limits on the types, numbers, and modifications that can be made to personally owned weapons along with more in-depth reporting requirements. On the other side, gun rights advocates say that such limitations would violate their Second Amendment rights.

There are valid questions of what sort of gun laws are constitutional, as well what sort of gun laws could responsibly have prevented this sort of situation. Many states have different approaches to how guns are handled, from reporting requirements to limiting types of guns such as fully automatic rifles. In order to understand how such laws can be applied, we need to understand the purpose and rights granted by the Second Amendment of the Constitution as well as how gun control laws are handled at a constitutional and state by state level. These are both enormous topics to undertake, so we’re going to have to split them into two separate articles that broadly cover how these topics work. We’ll start by looking at the right to bear arms itself.

The History and Protections of the Second Amendment

The Second Amendment of the U.S. Constitution says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This has long been touted as a right for citizens to own guns or other armaments. However, for the vast majority of U.S. history this has not been the case.

In 1876, the Supreme Court ruled that the Second Amendment didn’t even apply to the states but only to the federal government. The year before, in 1875, the Supreme Court dismissed charges against white men who had killed over sixty black people when they were charged with conspiring to prevent black people from exercising their Second Amendment rights. The Supreme Court said there was no case because the Second Amendment restricted Congress, but granted no rights whatsoever to private individuals.

The Supreme Court has not rendered many decisions about the meaning of the Second Amendment. In 1876, the Court ruled that the Second Amendment only applies to limit the federal government. This means that the rights that are granted by the Second Amendment can be limited by state governments.

Laws restricting the use, sale and public carrying of guns (especially concealed carrying) were consistently upheld for over a century. While this was the case, the exact rights granted by the Second Amendment were a topic of debate in the public but quite consistently not granted to individuals in the courts. In 1939, the Miller case further explained the outlines of the Second Amendment. The Supreme Court clarified that the Second Amendment did not guarantee an individual constitutional right to citizens of the U.S. Instead, the Amendment prevents Congress from taking away a states right to self-defense by limiting their ability to maintain a “well-regulated Militia.” Even then, many restrictions on firearms were allowed as irrelevant to the preservation and efficiency of a well regulated militia.

This was the established limits of the Second Amendment for decades to come until quite recently, in 2008, the Supreme Court changed these contours through a case known as Heller. The Heller ruling-as part of rejecting a DC total ban on handgun ownership-reinterpreted the Second Amendment to grant an individual right to possess firearms-even if that possession wasn’t in connection with service to a militia-for lawful purposes such as self-defense within your home. However, the ruling also made it clear that this right was far from an unlimited right to carry any weapon for any purpose. Concealed weapons prohibitions were specifically described as constitutional; longstanding prohibitions on gun ownership such as for particularly dangerous weapons, restrictions on sale, limitations in regard to felons and mentally ill persons, reporting requirements, and limitations on bringing guns to places like schools and government buildings were also specifically described as constitutional. More broadly, longstanding restrictions were discussed as unaffected by the Heller decision. The individual right was largely hinged on the right of self-defense especially when in the home.

The Second Amendment and Stopping Gun Violence

The truth is, it is very hard to stop a person from getting guns-after all there’s more guns than people in the U.S. We’ve seen that Mr. Paddock purchased all his guns legally and then illegally modified them to make them even more deadly. Background check and registration requirements didn’t stop a man with no criminal record or mental health history from purchasing an enormous amount of guns with which to commit an atrocity. So what steps can we take within the U.S.’ current constitutional framework?

With the current state of the Second Amendment, gun control laws are harder pressed than ever. However, the truth is that there is quite a bit that can still be constitutionally done. Registration requirements are generally considered part of the constitutional longstanding limitations. A man such as Paddock can purchase legal guns and modify them to be much more deadly than purchased. So how can we stop this sort of thing? More thorough background check requirements-after all we require a license to drive a car-could be extremely useful. Reporting requirements when traveling with firearms, rules on storage, and a serious crackdown or firearm trafficking are all steps which could also have maybe averted this tragedy.

However, in order to understand what legislation could help the U.S.’ gun violence epidemic, it is necessary to fully understand how gun control laws are generally treated both at the federal level and among the states-understanding what the Second Amendment allows is only the first step. Later this week, we’ll take a look at how these laws are treated and think about what steps could be taken towards responsible, effective gun control laws.

Massachusetts Rules Field Sobriety Tests Can’t Prove You’re High While Driving

As marijuana–either medical or recreational–has seen increasing legalization across the country, the implications of that legalization have led to any number of legal concerns. One of the chief among those has been how police officers will be able to establish that somebody is intoxicated for the purposes of a driving while intoxicated (DWI) charge. Out in Massachusetts, there has finally been a ruling on the issue. However, it has made it even more difficult than ever before for Massachusetts police to prosecute somebody for driving while high.

Massachusetts approved the “”possession, use, distribution, and cultivation of marijuana,” recently. The legalization, taking effect January 1, 2018, is conditioned on regulating marijuana in the same vein as alcohol. Stores selling marijuana have been pushed back to June 2018 over concerns over lack of legal preparation to deal with widespread legalized marijuana.

The Massachusetts Supreme Judicial Court made a ruling last week which, in some ways validates these fears.  They have ruled that-for the most part-the usual field sobriety tests can’t be used as evidence that somebody is driving under the influence of marijuana.

sobriety testMr. Gerhardt’s Sticky Situation

The case itself dealt with a man named Thomas Gerhardt. Mr. Gerhardt was pulled over for not having his lights on. However, once he was pulled over the officer reported smelling burned marijuana from his car. When asked if he had marijuana, Mr. Gerhardt responded that he had a couple of marijuana cigarettes in his ashtray-pointing to a couple of mostly consumed marijuana cigarettes. When asked when they were smoked, one passenger said about twenty minutes prior while Mr. Gerhardt said around three hours ago. When asked how much marijuana he had smoked, Mr. Gerhardt replied about a gram.

The officer had Mr. Gerhardt perform several field sobriety tests, standing on one leg, the heel-to-toe walk test, following a finger with his eyes, and reciting the alphabet. For the most part, Mr. Gerhardt had no issues with the tests. However, he was incapable of understanding the instructions of the walk and turn test despite several explanations. In the end, he was incapable of performing the test properly, walking normally instead of heel-to-toe. He was also unable to stay balanced while standing on one leg. The officer took this to imply that that Mr. Gerhardt was impaired by marijuana. This led to charges of driving while under the influence of marijuana-obviously still a crime regardless of legalization.

However, Mr. Gerhardt’s attorneys challenged this evidence. They argued that the tests are fine for establishing that alcohol has impaired a person’s ability to drive but aren’t suited to testing how impaired a person is who has smoked marijuana. After all, a DUI doesn’t happen just because you’ve drank-it’s because you’ve drank to a point of impairment agreed upon to be over .08% BAC after much scientific testing. By the same token, the crime of driving under the influence of marijuana is due to the impairment from the marijuana. But to be guilty, that impairment must be established. The Massachusetts Supreme Judicial Court felt that the research on the correlation between these field tests are being impaired by marijuana just wasn’t there yet.

Scientific Tests as Evidence

There is a strong, well scientifically tested, relationship between these field tests and impairment due to alcohol consumption. That scientific testing simply hasn’t happened when it comes to marijuana. Without diving too deep into the issues of evidentiary law, anything that tends to prove any fact of consequence to a case-or provide a link in a chain towards doing this-is relevant and admissible evidence barring several exceptions.

Scientific tests have the potential to be considered more weighty than they actually are due to a bias towards accepting the validity of such tests. Scientific evidence must be based in sufficient evidence and be a product of reliable principles and methods. This evaluation has largely replaced a previous test requiring the acceptance of a scientific test by the scientific community at large. However, in practice, both tests can be thought of similarly. To be admissible, a test needs to be generally accepted by the scientific community to produce reliable results on an issue. The court didn’t think these field tests had been suitably vetted by the scientific community when it came to marijuana impairment.

In fact, there is quite a bit of disagreement in the scientific community over how effective tests like this are when it comes to detecting marijuana impairment. This is partially because marijuana’s effects vary enormously from person to person. Marijuana also operates very differently from alcohol, so the same tests may not produce as concrete results. Either way, the potential for a jury to look at these tests and weigh them too heavily made their use to prove impairment inadmissible.

How These Tests Can Be Used

This doesn’t mean these field tests can’t be admitted. It just means they can’t be relied on as evidence of actual impairment. They can still be used to show balance, coordination, mental acuity, etc. What’s more, the court ruled that a jury can still use their common sense to translate this into whether somebody was impaired. An officer could testify to appearance (red eyes, etc.), behavior or demeanor, but they couldn’t say somebody was impaired or “high.”

What’s more, under the ruling, no officer or expert could testify that somebody passed or failed such a test as that would imply the test had scientifically conclusive results. Similarly, a witness could not say somebody was or was not impaired based on the results of a field test. In fact, a witness couldn’t even call the field tests a “test” in the first place as this would imply scientific credibility.  Essentially, the ruling says that, no matter what, it must be crystal clear that field tests have no ability to directly test for marijuana impairment.

A Complicated Practical Issue

This ruling makes sense, the scientific research isn’t there to support using field tests to determine marijuana impairment. However, the ruling also highlights a serious issue. State marijuana legalization is becoming more widespread as more and more states vote for medical or recreational legalization. Along with this will come a greater need for law enforcement to be prepared to deal with situations such as pulling somebody over for driving under the influence of marijuana. We’ll need tests sooner rather than later to judge impairment where we can’t use a breathalyzer or similar device to reliably establish how impaired somebody is. Even then, such a device assumes that each person is equally impaired while studies show widely varied effects of marijuana on different people. The law and the technology of the law has some catching up to do–and it needs to do it fast.