HOUSE . . . . . . . . . . . . . . . No. 4255
The Commonwealth of Massachusetts
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In the One Hundred and Ninety-Second General Court
(2021-2022)
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An Act implementing the recommendations of the Special Commission on Operating Under the Influence and Impaired Driving.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. This law shall be known as the Trooper Thomas Clardy law.
SECTION 2. Chapter 6 of the General Laws is hereby amended by inserting after section 116K the following section:-
Section 116L. (a) The municipal police training committee, in consultation with the executive office of public safety and security, shall establish and develop an in-service training program designed to train local law enforcement officials with authority to enforce chapter 90 in Advanced Roadside Impaired Driving Enforcement. The committee shall determine training requirements and minimum standards of the program.
(b) The municipal police training committee, in consultation with the executive office of public safety and security, shall establish and develop an in-service training program designed to train and certify local law enforcement officials as drug recognition experts. The committee shall determine training requirements and minimum standards of the program.
SECTION 3. Section 8 of chapter 90 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after the word “substances”, in lines 52 to 53, the following words:- , including alcohol and marijuana,.
SECTION 4. Section 8A of said chapter 90, as so appearing, is hereby amended by striking out, in lines 31 to 35, the words “of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of said chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 5. Section 8A½ of said chapter 90, as so appearing, is hereby amended by striking out, in lines 27 to 31, the words “of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of said chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 6. Section 21 of said chapter 90, as so appearing, is hereby amended by striking out, in lines 20 to 23, the words “upon any way or place to which the public has the right of access, or upon any way or in any place to which members of the public have access as invitees, or who,”.
SECTION 7. Said section 21 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 25 to 31, the words “, marihuana or narcotic drugs, or depressant or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270, carbon tetrachloride, acetone, ethylene, dichloride, toluene, chloroform, xylene or any combination thereof” and inserting in place thereof the following words:- or any other intoxicating substance or combination of substances.
SECTION 8. Section 22F of said chapter 90, as so appearing, is hereby amended by striking out, in line 11, the words “of intoxicating liquor or narcotic drugs”.
SECTION 9. Section 24 of said chapter 90, as so appearing, is hereby amended by striking out, in lines 1 to 4, the words “, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees,”.
SECTION 10. Said section 24, of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 6 to 8, the words “, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- or any other intoxicating substance or combination of substances.
SECTION 11. Said section 24, of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 18 to 19, the words “, marijuana, narcotic drugs, depressants or stimulant substances” and inserting in place thereof the following words:- or any other intoxicating substance or combination of substances.
SECTION 12. Said section 24, of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 30 to 32, the words “marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 13. Subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out paragraph (e) and inserting in place thereof the following paragraph:-
(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, or of the presence or concentration of any other intoxicating substance or combination of substances, or metabolites of any intoxicating substance, as shown by chemical test or analysis of his blood or oral fluid or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor, or any other intoxicating substance or combination of substances; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made either with the consent of the defendant or with the authority conveyed by a search warrant; the results thereof were made available to him upon his request; and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, physician’s assistant, registered nurse or authorized medical staff of a health care facility. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding unless such refusal constituted a refusal to comply with the terms of a search warrant or court order, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section 24N. If such evidence is that such percentage, by weight, of alcohol in the defendant’s blood was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith unless there is probable cause of intoxication caused by the ingestion of some other substance or combination of substances, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle while under the influence of intoxicating liquor, or any other intoxicating substance or combination of substances; provided, however, that in an instance where a defendant is under the age of 21 and such evidence is that the percentage, by weight, of alcohol in the defendant's blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant's license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference of impairment by reason of alcohol.
In any prosecution for a violation of paragraph (a) in which the defendant is alleged to be under the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue; evidence of impairment, as shown by the administration of a horizontal gaze nystagmus test conducted pursuant to a method approved by the National Highway Traffic Safety Administration, and the detection of one or more of the following indicators: 1) lack of smooth pursuit in left eye; 2) lack of smooth pursuit in right eye; 3) distinct nystagmus at maximum deviation in left eye; 4) distinct nystagmus at maximum deviation in right eye; 5) onset at or prior to 45 degrees in left eye; 6) onset at or prior to 45 degrees in right eye; shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time impaired. If such evidence is that 4 or more such indicators were present, there shall be a permissible inference that such defendant was under the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue. If such evidence is that fewer than 2 such indicators were present, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue. If such evidence is that 2 or 3 such indicators were present, there shall be no permissible inference from such evidence with regard to whether the defendant was under the influence. In any such prosecution, a court may take judicial notice of: (1) the fact that the horizontal gaze nystagmus test has been demonstrated to have scientific validity and reliability when administered by properly trained and certified police officers and when used in conjunction with other evidence, in detecting impairment by alcohol; by central nervous system depressants; by dissociative anesthetics, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue; and (2) a contemporary publication of the National Highway Traffic Safety Administration with regard to the proper administration of the horizontal gaze nystagmus test.
In any prosecution for a violation of paragraph (a) in which it is alleged that a defendant’s operation of a motor vehicle was impaired by an intoxicating substance other than intoxicating liquor, evidence of the concentration of such intoxicating substance in a defendant’s system shall not be a precondition to the admissibility of evidence of the presence of such intoxicating substance in the defendant’s system.
In any prosecution for a violation of paragraph (a) in which it is alleged that a defendant’s operation of a motor vehicle was impaired, in whole or in part, by the consumption of marijuana, marijuana products, or other forms of tetrahydrocannabinol (THC), the court may take judicial notice that the ingestion of THC can cause impairment in motorists; that it can impair motor function, reaction time, tracking, cognitive attention, decision-making, judgment, perception, peripheral vision, impulse control, and memory; and that ingestion of THC does not enhance a motorist’s ability to safely operate a motor vehicle.
SECTION 14. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 688 to 690, the words “upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees,”.
SECTION 15. Said section 24 of said chapter 90, as so appearing, is hereby further amended by inserting, after the word “liquor”, in lines 693 to 694, the following words:- ; and shall be deemed to have consented to a chemical test or analysis of his blood, or of his oral fluid, or to comply with all non-testimonial aspects of a Drug Recognition Expert examination in the event that he is arrested for operating while under the influence of any other intoxicating substance or combination of substances;
SECTION 16. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in line 703, the words “upon such way or place”.
SECTION 17. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 704, 715, 736, 756 to 757, and 867 to 868, every time they appear, the words “of intoxicating liquor”.
SECTION 18. Said section 24 of said chapter 90, as so appearing, is hereby further amended by inserting, after the word “analysis”, in lines 705, 709, 730, 733, 758, 761, and 872, each time it appears, the following words:- or examination.
SECTION 19. Said section 24 of said chapter 90, as so appearing, is hereby further amended by inserting after the word “made”, in line 709, the following words:- without first obtaining a search warrant.
SECTION 20. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 756 and 843, each time they appear, the words “on a way or place”.
SECTION 21. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 772 to 773, the words “either a chemical test or analysis of breath or blood” and inserting in place thereof the following words:- any of a chemical test or analysis of breath, blood or oral fluid or the non-testimonial aspects of a Drug Recognition Expert examination.
SECTION 22. Said section 24 of said chapter 90, as so appearing, is hereby further amended by inserting after the word “test”, in line 797, the following words:- , analysis or examination.
SECTION 23. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 804 to 805, the words “on any way or place”.
SECTION 24. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 868 to 870, the words “upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have access as invitees or licensees”.
SECTION 25. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 913 to 917, the words “marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any intoxicating substance other than alcohol or a combination of alcohol and another intoxicating substance.
SECTION 26. Section 24½ of said chapter 90, as so appearing, is hereby amended by striking out, in lines 7 to 8, the words “of intoxicating liquor”.
SECTION 27. Section 24D of said chapter 90, as so appearing, is hereby amended by striking out, in lines 4 to 7, the words “, controlled substance or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof, each time they appear, the following words:- or any other intoxicating substance or combination of substances.
SECTION 28. Said section 24D of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 19 to 22, the words “, controlled substances or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof, each time they appear, the following words:- or any other intoxicating substance or combination of substances.
SECTION 29. Said section 24D of said chapter 90, as so appearing, is hereby further amended by inserting after the word “liquor”, in lines 42 and 47, each time it appears, the following words:- or any other intoxicating substance or combination of substances.
SECTION 30. Said section 24D of said chapter 90, as so appearing, is hereby further amended by striking out, in line 54, the words “of intoxicating liquor” and inserting in place thereof the following words:- offense.
SECTION 31. Said section 24D of said chapter 90, as so appearing, is hereby further amended by striking out, in line 61, the words “of alcohol”.
SECTION 32. Said section 24D of said chapter 90, as so appearing, is hereby further amended by striking out, in line 206, the word “drugs” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 33. Section 24G of said chapter 90, as so appearing, is hereby amended by striking out, in lines 1 to 3, the words “, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees,”.
SECTION 34. Said section 24G of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 35 to 37 and 50 to 52, each time they appear, the words “, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees,”.
SECTION 35. Said section 24G of said chapter 90, as so appearing, is hereby amended by striking out, in lines 5 to 9 and 39 to 43, each time they appear the words “, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section 1 of chapter 94C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof, each time they appear, the following words:- or any other intoxicating substance or combination of substances.
SECTION 36. Subsection (a) of section 24I of said chapter 90, as so appearing, is hereby amended by inserting after the definition of “Open container” the following definition:-
''Open or loose marijuana,'' finished marijuana or marijuana products, as defined by chapter 94G, that are not contained in the original unopened packaging provided by a marijuana retailer licensed under said chapter, or edible products prepared with marijuana, as defined under said chapter, or marijuana, as defined in section 1 of chapter 94C; provided, that resealable packages including but not limited to plastic zipper-top bags and screw-top jars shall constitute an open container for purposes of this section.
SECTION 37. Said section 24I of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 17 to 19, the words “, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licenses,”.
SECTION 38. Said section 24I of said chapter 90, as so appearing, is hereby further amended by inserting after the word “beverage”, in lines 20 and 29, each time it appears, the following words:- or open or loose marijuana.
SECTION 39. Section 24L of said chapter 90, as so appearing, is hereby amended by striking out, in lines 1 to 3, the words “, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees,”.
SECTION 40. Said section 24L of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 6 to 10, the words “, or marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof, each time they appear, the following words:- or any other intoxicating substance or combination of substances.
SECTION 41. Said section 24L of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 38 to 40, the words “, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees,”.
SECTION 42. Said section 24L of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 43 to 47, the words “, or of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof, each time they appear, the following words:- or any other intoxicating substance or combination of substances.
SECTION 43. Section 24N of said chapter 90, as so appearing, is hereby amended by striking out, in lines 40 to 42, the words “on any such way or place while under the influence of intoxicating liquor, and said defendant refused to submit to a chemical test or analysis of his breath or blood” and inserting in place thereof the following words:- while under the influence and said defendant refused to submit to any of a chemical test or analysis of breath, blood or oral fluid or the non-testimonial aspects of a Drug Recognition Expert examination.
SECTION 44. Said section 24N of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 92 to 93, the words “a chemical test or analysis of his breath or blood” and inserting in place thereof the following words:- any of a chemical test or analysis of breath, blood or oral fluid or the non-testimonial aspects of a Drug Recognition Expert examination.
SECTION 45. Said section 24N of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 99 to 102, the words “of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees”.
SECTION 46. Said section 24N of said chapter 90, as so appearing, is hereby further amended by inserting after the word “analysis”, in line 103, the following words:- or examination.
SECTION 47. Section 24Q of said chapter 90, as so appearing, is hereby amended by striking out, in line 11, the words “of intoxicating liquor”.
SECTION 48. Section 24R of said chapter 90, as so appearing, is hereby amended by striking out, in line 7, the words “of intoxicating liquor”.
SECTION 49. Section 24S of said chapter 90, as so appearing, is hereby amended by striking out, in lines 1 to 3, the words “, upon any way or place to which the public has a right of access, or upon any way or place to which members of the public have access as invitees or licensees,”.
SECTION 50. Section 24V of said chapter 90, as so appearing, is hereby amended by striking out, in lines 4 to 5, the words “of intoxicating liquor”.
SECTION 51. Section 24W of said chapter 90, as so appearing, is hereby amended by striking out, in line 7, the words “of intoxicating liquor”.
SECTION 52. Section 24X of said chapter 90, as so appearing, is hereby amended by striking out, in line 7, the words “of intoxicating liquor”.
SECTION 53. Section 25 of said chapter 90, as so appearing, is hereby amended by inserting after the word “examination”, in line 10, the following words:- , or who refuses to fully lower his or her window to facilitate an interaction with such officer.
SECTION 54. Section 32C of said chapter 90, as so appearing, is hereby amended by striking out, in line 16, the words “of any drug” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 55. Section 40 of said chapter 90, as so appearing, is hereby amended by inserting after the word “liquor”, in lines 59 to 60, the following words:- or any other intoxicating substance or combination of substances.
SECTION 56. Section 44 of said chapter 90, as so appearing, is hereby amended by inserting after the word “liquor”, in line 9, the following words:- or any other intoxicating substance or combination of substances.
SECTION 57. Section 8 of chapter 90B of the General Laws, as so appearing, is hereby amended by striking out, in lines 4 to 8, the words “marijuana, narcotic drugs, depressant or stimulant substances, as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 58. Paragraph (2) of subsection (a) of said section 8 of said chapter 90B, as so appearing, is hereby amended by striking out the first 3 subparagraphs and inserting in place thereof the following 6 subparagraphs:-
In any prosecution for a violation of paragraph (1), evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by chemical test or analysis of his breath, shall be admissible, and such failure or refusal shall be admissible in any action by the registrar under this section or in any proceedings provided for in section 24N of chapter 90, and deemed relevant to the determination of the question of whether the defendant was at such time under the influence of intoxicating liquor, or any other intoxicating substance or combination of substances; provided, however, that if such test or analysis was made by or at the direction of a law enforcement officer, it was made with the consent of the defendant or pursuant to a search warrant, the results thereof were made available to the defendant upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any person for the purpose of such test or analysis except by a physician, physician’s assistant, registered nurse or authorized medical staff of a health care facility; and, provided further, that a chemical test or analysis of the defendant's breath shall be by means of equipment which has been calibrated within 30 days of its use.
Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal process except in the case of refusal to cooperate with a search warrant or court order, but any failure of the law enforcement officer to attempt to administer or have administered such test or analysis, shall be so admissible. If such evidence is that such percentage was five one-hundredths or less, and there is no evidence that the defendant has also consumed another intoxicating substance or combination of substances, there shall be a presumption that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith unless there is probable cause of intoxication caused by the ingestion of some other substance or combination of substances, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a vessel while under the influence of intoxicating liquor, or any other intoxicating substance or combination of substances; if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths, there shall be no presumption.
Whoever operates a vessel on the waters of the commonwealth shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating while under the influence of intoxicating liquor; and shall be deemed to have consented to a chemical test or analysis of his blood, or of his oral fluid, or to comply with all non-testimonial aspects of a Drug Recognition Expert examination in the event that he is arrested for operating while under the influence of any other substance or combination of substances; provided, however, that no person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a law enforcement officer, having reasonable grounds to believe that the person arrested has been operating a vessel under the influence.
In any prosecution for a violation of paragraph (1) in which the defendant is alleged to be under the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue; evidence of impairment, as shown by the administration of a horizontal gaze nystagmus test conducted pursuant to a method approved by the National Highway Traffic Safety Administration, and the detection of one or more of the following indicators: 1) lack of smooth pursuit in left eye; 2) lack of smooth pursuit in right eye; 3) distinct nystagmus at maximum deviation in left eye; 4) distinct nystagmus at maximum deviation in right eye; 5) onset at or prior to 45 degrees in left eye; 6) onset at or prior to 45 degrees in right eye; shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time impaired. If such evidence is that 4 or more such indicators were present, there shall be a permissible inference that such defendant was under the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue. If such evidence is that fewer than 2 such indicators were present, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue. If such evidence is that 2 or 3 such indicators were present, there shall be no permissible inference from such evidence with regard to whether the defendant was under the influence. In any such prosecution, a court may take judicial notice of: (1) the fact that the horizontal gaze nystagmus test has been demonstrated to have scientific validity and reliability when administered by properly trained and certified police officers and when used in conjunction with other evidence, in detecting impairment by alcohol; by central nervous system depressants; by dissociative anesthetics, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue; and (2) a contemporary publication of the National Highway Traffic Safety Administration with regard to the proper administration of the horizontal gaze nystagmus test.
In any prosecution for a violation of paragraph (1) in which it is alleged that a defendant’s operation of a vessel was impaired by an intoxicating substance other than intoxicating liquor, evidence of the concentration of such intoxicating substance in a defendant’s system shall not be a precondition to the admissibility of evidence of the presence of such intoxicating substance in the defendant’s system.
In any prosecution for a violation of paragraph (1) in which it is alleged that a defendant’s operation of a vessel was impaired, in whole or in part, by the consumption of marijuana, marijuana products, or other forms of tetrahydrocannabinol (THC), the court may take judicial notice that the ingestion of THC can cause impairment in operators of vessels; that it can impair motor function, reaction time, tracking, cognitive attention, decision-making, judgment, perception, peripheral vision, impulse control, and memory; and that ingestion of THC does not enhance a person’s ability to safely operate a vessel.
SECTION 59. Said section 8 of said chapter 90B, as so appearing, is hereby further amended by striking out, in lines 210, 221, and 245 to 246, each time they appear, the words “of intoxicating liquor”.
SECTION 60. Said section 8 of said chapter 90B, as so appearing, is hereby further amended by inserting after the word “analysis”, in lines 210 to 211, 222, and 248, each time it appears, the following words:- or examination.
SECTION 61. Said section 8 of said chapter 90B, as so appearing, is hereby further amended by inserting after the word “made”, in line 214, the following words:- without first obtaining a search warrant.
SECTION 62. Section 8A of said chapter 90B, as so appearing, is hereby amended by striking out, in lines 4 to 7, the words “marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 63. Said section 8A of said chapter 90B, as so appearing, is hereby further amended by striking out, in lines 37 to 40, the words “marihuana, narcotic drugs, depressants or stimulant substances, all as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 64. Section 8B of said chapter 90B, as so appearing, is hereby amended by striking out, in lines 4 to 7, the words “marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 65. Said section 8B of said chapter 90B, as so appearing, is hereby further amended by striking out, in lines 39 to 42, the words “marihuana, narcotic drugs, depressants or stimulant substances, all as defined in chapter ninety-four C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 66. Section 26A of said chapter 90B, as so appearing, is hereby amended by striking out, in lines 6 to 10 and 17 to 21, each time they appear, the words “of marijuana, narcotic drugs, depressants or stimulant substances, as defined in section 1 of chapter 94C, or from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 67. Section 1 of chapter 90F of the General Laws, as so appearing, is hereby amended by striking out, in lines 111 and 118, each time it appears, the word “drugs” and inserting in place thereof the following words:- any other intoxicating substance or combination of substances.
SECTION 68. Said chapter 90F is hereby further amended by striking out section 11, as so appearing, and inserting in place thereof the following section:-
Section 11. (A) Any person who operates a commercial motor vehicle upon the highways of the commonwealth shall be deemed to have given consent, to a test or tests of that person's blood, breath, or urine for the purpose of determining that person's alcohol concentration, or to a test of that person’s blood, or oral fluid, or to all non-testimonial aspects of a drug recognition expert examination for the purpose of determining the presence of other drugs, intoxicating substances or combination of substances.
(B) A test or tests or examinations may be administered at the direction of a law enforcement officer, who after stopping or detaining the operator of a commercial motor vehicle, has probable cause to believe that the operator was operating a commercial motor vehicle while having alcohol or any other intoxicating substance or combination of substances in his system.
(C) A person requested to submit to a test or examination as provided shall be advised that a refusal to submit to the test or non-testimonial aspects of the examination will result in that person being disqualified from operating a commercial motor vehicle.
(D) If the person refuses testing or examination, or submits to a test which discloses an alcohol concentration of four hundredths or more, the law enforcement officer must submit a sworn report to the registrar certifying that the test or examination was requested pursuant to paragraph (A) and that the person refused to submit to testing or non-testimonial aspects of the examination, or submitted to a test which disclosed an alcohol concentration of four hundredths or more.
(E) Upon receipt of the sworn report of a law enforcement officer submitted under paragraph (D), the registrar shall disqualify the driver from driving a commercial motor vehicle for a period of 1 year; provided, however, that upon receipt of such report with respect to any person who refuses to submit to such a test or examination or submits to a test which discloses an alcohol level of four one-hundredths or more while transporting a hazardous material required to be placarded, the registrar shall disqualify such person from driving a commercial motor vehicle for 3 years. The registrar shall disqualify for life any person who refuses to submit to 2 or more tests or examinations, or submits to two or more tests which disclose an alcohol level of four one-hundredths or more, or any combination of the 2 or more thereof. Any operator who has been disqualified shall be entitled to a hearing before the registrar which shall be limited to the following issues: (1) did the law enforcement officer, who after stopping or detaining the commercial motor vehicle driver, have probable cause to believe that the driver was driving a commercial motor vehicle while having alcohol in his system or being under the influence of an intoxicating substance or combination of substances; and (2) did such person refuse to submit to such test or examination.
SECTION 69. Subsection (a½) of section 4 of chapter 94G of the General Laws, as so appearing, is hereby amended by striking out clauses (xxxiii) and (xxxiv) and inserting in place thereof the following 3 clauses:-
(xxxiii) requirements that prohibit marijuana product manufacturers from altering or utilizing commercially-manufactured food products when manufacturing marijuana products unless the food product was commercially manufactured specifically for use by the marijuana product manufacturer to infuse with marijuana; provided, however, that a commercially-manufactured food product may be used as an ingredient in a marijuana product if: (i) it is used in a way that renders it unrecognizable as the commercial food product in the marijuana product; and (ii) there is no statement or advertisement indicating that the marijuana product contains the commercially-manufactured food product;
(xxxiv) energy and environmental standards for licensure and licensure renewal of marijuana establishments licensed as a marijuana cultivator or marijuana product manufacturer; and
(xxxv) requirements for retailers of marijuana and retailers of marijuana accessories to distribute, with each retail sale of marijuana, marijuana products, or marijuana accessories, educational materials relative to the dangers of operating a motor vehicle under the influence of marijuana or marijuana products, and the penalties associated with such offenses.
SECTION 70. Section 13 of said chapter 94G, as so appearing, is hereby amended by striking out subsection (d).
SECTION 71. Chapter 112 of the General Laws is hereby amended by inserting after section 12A½ the following section:-
Section 12A¾. (a) Any physician duly registered under the provisions of section 2, 2A, 9, 9A or 9B, any physician assistant duly registered under the provisions of section 9I or his employing or supervising physician, and any nurse duly registered or licensed under the provisions of section 74, 74A or 76, and any authorized medical staff of a health care facility who is a resident of the Commonwealth, shall faithfully assist a law enforcement officer seeking to execute a valid search warrant or court order requiring the collection of a biological sample. The assisting party or, during regular work hours, his or her employer, shall be entitled to be paid a reasonable rate by such law enforcement officer’s employer for his or her services . The Secretary of Health and Human Services may promulgate regulations (i) requiring said physicians, physician’s assistants and authorized medical staff to collect such samples in accordance with state and national practice standards and (ii) to establish the rate due a party who assists a law enforcement officer in the collection of a biological sample obtained pursuant to a search warrant or court order requiring the production of such evidence. Such fees shall be borne by the law enforcement agency executing the search warrant in question.
(b) A person assisting a law enforcement officer under subsection (a) and any employer of such person shall not be liable in a civil proceeding for any act or omission taken pursuant to this section if acting in good faith; provided, that this subsection shall not alter the rights, immunities, and liabilities of any public employee or public employer under chapter 258.
SECTION 72. Chapter 233 of the General Laws is hereby amended by adding the following section:-
Section 84. A witness who has successfully completed a training program for drug recognition experts that meets the National Highway Traffic Safety Administration guidelines for training and certification of drug recognition experts may testify in the form of an opinion or otherwise as to the significance of any symptoms of impairment or intoxication for which evidence has been admitted or on the condition that such evidence be introduced.
SECTION 73. Section 5A of chapter 263 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after the word “liquor”, in line 3, the following words:- or any other intoxicating substance or combination of substances.
SECTION 74. Section 2A of chapter 276 of the General Laws, as so appearing, is hereby amended by striking out, in line 1, the word “The” and inserting in place thereof the following words:- The signature on the warrant may be made by electronic signature. The.
SECTION 75. Section 2B of said chapter 276, as so appearing, is hereby amended by inserting after the word “personally”, in lines 1 and 2, the following words:- or through wire or electronic means.
SECTION 76. Said section 2B of said chapter 276, as so appearing, is hereby further amended by inserting after the word “form”, in line 13, the following words:- and the signature therein may be made by electronic signature.
SECTION 77. The special commission established by section 50 of chapter 55 of the acts of 2017 is hereby revived and continued until December 31, 2023. The special commission shall also study, review, and evaluate the reliability of oral fluid and other testing as evidence in prosecutions for operating under the influence, as well as the practical availability of experts to the commonwealth and defendants, and make annual reports of its progress.
SECTION 78. Notwithstanding any general or special law to the contrary, the highway safety division shall, in collaboration with the National Highway Traffic Safety Administration, the Massachusetts Chiefs of Police Association, and the commonwealth’s statewide drug recognition expert coordinator, develop educational materials and programming relative to the drug recognition expert program and make such materials and programming available to the Massachusetts Judges Conference and the trial court.
SECTION 79. Notwithstanding any general or special law to the contrary, the municipal police training committee shall take an annual census of certified drug recognition experts employed by municipal police departments in the commonwealth and, if the number of such experts is 350 or fewer, shall make efforts to recruit additional local law enforcement officials to attend a training program to achieve certification.
