OUI Stop with Marijuana Odor and Breath Test Refusal
At 1:12 a.m., Officer Patel observes a gray sedan drift over the fog line twice and brake abruptly at a green light. The stop is on a two-lane road. The driver, a 34-year-old man, has bloodshot, glassy eyes, slurred speech, and fumbles for his license. There is a strong odor of burnt marijuana and a faint odor of alcohol. A half-empty bottle of whiskey is on the passenger seat in plain view. He says he had 'one beer and a hit' about an hour ago. He agrees to field sobriety tests but performs poorly on the horizontal gaze nystagmus and walk-and-turn; he sways and misses heel-to-toe. He refuses the one-leg stand and says, 'I'm not doing any more.' Officer Patel arrests him for OUI. At the station, he refuses the breath test after hearing the implied consent rights.
1. Was there probable cause to arrest for OUI? What facts support it and what facts do not?
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Probable cause is based on the totality, not one fact. The driving was erratic: two fog-line crossings and abrupt braking at a green light. The officer observed bloodshot, glassy eyes, slurred speech, fumbling for a license, and an open whiskey bottle in plain view. The driver admitted drinking and using marijuana about an hour earlier. He performed poorly on two standardized tests and refused the third. The odor of burnt marijuana alone would not establish probable cause after legalization, and the refusal to finish field tests cannot be used as a substitute for evidence. But the driving, physical signs, admission, open container, and poor performance together support probable cause for OUI under G.L. c. 90 § 24. The officer should record the tests in order, note the conditions, and avoid testifying that the driver 'failed' beyond what the scoring shows.
2. May Officer Patel search the car? What are the limits?
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The whiskey bottle is in plain view, so the officer may seize it under the plain-view doctrine. The odor of marijuana does not by itself authorize a full vehicle search. After the driver is handcuffed and secured, Arizona v. Gant and Article 14 limit a search incident to arrest: the officer may search the passenger compartment only if the arrestee is unsecured and within reaching distance or if there is reason to believe evidence of the offense is in the vehicle. Here, the open bottle is already visible. If the officer believes more evidence, such as additional containers or drugs, is in the car, he should apply for a search warrant. If the car is towed, an inventory search under the department's written policy is permitted, but it cannot be a pretext. The trunk should not be searched without a warrant, consent, or another exception.
3. What are the consequences of the breath test refusal, and what must Patel document?
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Under G.L. c. 90 § 24(1)(f), a first breath-test refusal results in a 180-day license suspension. The refusal is admissible at trial and may be considered by the jury. The officer must read the implied consent rights, give the driver a reasonable opportunity to decide, and record the refusal. The officer should document the time of arrest, the rights being read, the driver's exact response, and the name of any witness. The officer should also note that no breath test was administered and preserve the rights form. The refusal does not prevent the Commonwealth from prosecuting OUI based on other evidence. The officer should complete the OUI report and the citation. A refused breath test does not automatically authorize a forcible blood draw; any blood test requires separate legal authority.