HOUSE DOCKET, NO. 4586 FILED ON: 11/10/2021
HOUSE . . . . . . . . . . . . . . . No. 4255
The Commonwealth of Massachusetts
_________________
OFFICE OF THE GOVERNOR
COMMONWEALTH OF MASSACHUSETTS
STATE HOUSE · BOSTON, MA 02133
(617) 725-4000
CHARLES D. BAKER KARYN POLITO
GOVERNOR LIEUTENANT GOVERNOR
November 10, 2021
To the Honorable House of Representatives,
In 2017, we worked together to enact bipartisan legislation governing the cultivation,
sale, and adult use of marijuana following the voter-approved ballot initiative of 2016. At the
same time, we were keenly aware of the clear research establishing that the ingestion of THC can
and does cause impairment in driving, and the severe consequences of impaired driving cannot
be ignored.
The risks of impaired driving are not only borne by those who choose to drive after
ingesting intoxicating substances. On March 16, 2016, Massachusetts State Police Trooper
Thomas Clardy – for whom this bill is named – was killed while conducting a traffic stop on the
Massachusetts Turnpike in Charlton when his parked cruiser was hit by a speeding motorist who
swerved across three lanes of traffic. THC, the psychoactive ingredient in marijuana, was
detected in the motorist’s blood. Trooper Clardy was 44 years old, an 11 year member of the
state police, a United States Marine Corps veteran, and a devoted husband and father to 6
children.
To address the grave danger posed by impaired drivers and to avoid tragic outcomes like
Trooper Clardy’s passing, in 2019 I filed legislation proposing statutory language to implement
the recommendations of the Special Commission on Operating Under the Influence and Impaired
Driving. That Special Commission – created by the same legislation that legalized marijuana –
brought together stakeholders and experts from across the public safety spectrum including
police, prosecutors, the criminal defense bar, medical and toxicological professionals, and the
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civil liberties community. After hearing from these subject matter experts, the Special
Commission issued a report that made recommendations (many of them unanimous) for
legislative changes to laws that protect the public from impaired drivers. Those changes
represent common sense improvements to the entire process by which we address drugged
driving, beginning with the training of police officers, continuing through roadside encounters
with motorists, and ending with what evidence is admitted at trials and how judges instruct
juries.
It has been more than two years since I first filed this legislation, and impaired drivers
continue to pose a threat to the public. Recent data released by the National Highway Traffic
Safety Administration (NHTSA) showed that traffic fatalities reached a 15-year high during the
first 6 months of 2021, with more than 20,000 total deaths. This alarming trend is attributable in
part to an increase in risky behavior, including driving under the influence of drugs and alcohol.
Indeed, the NHTSA’s ongoing review of five trauma centers, including one in Worcester,
revealed a significant increase during the COVID-19 emergency in the prevalence of drugs
detected in seriously and fatally injured drivers.
Accordingly, I am re-submitting for your consideration, “An Act Implementing the
Recommendations of the Special Commission on Operating under the Influence and Impaired
Driving.” This bill takes each legislative recommendation from the Special Commission’s report
and proposes statutory language to implement it. This legislation applies the tools that we have
used for years to combat drunk driving and extends them to drugged driving. It also makes
parallel changes to the law governing impaired operation of boats, planes, and other vehicles. I
urge your prompt enactment of the Special Commission’s thoughtful recommendations.
Respectfully submitted,
Charles D. Baker,
Governor
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 HOUSE . . . . . . . . . . . . . . . No. 4255
The Commonwealth of Massachusetts
_______________
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:
1 SECTION 1. This law shall be known as the Trooper Thomas Clardy law.
2 SECTION 2. Chapter 6 of the General Laws is hereby amended by inserting after section
3 116K the following section:-
4 Section 116L. (a) The municipal police training committee, in consultation with the
5 executive office of public safety and security, shall establish and develop an in-service training
6 program designed to train local law enforcement officials with authority to enforce chapter 90 in
7 Advanced Roadside Impaired Driving Enforcement. The committee shall determine training
8 requirements and minimum standards of the program.
9 (b) The municipal police training committee, in consultation with the executive office of
10 public safety and security, shall establish and develop an in-service training program designed to
11 train and certify local law enforcement officials as drug recognition experts. The committee
12 shall determine training requirements and minimum standards of the program.
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13 SECTION 3. Section 8 of chapter 90 of the General Laws, as appearing in the 2020
14 Official Edition, is hereby amended by inserting after the word “substances”, in lines 52 to 53,
15 the following words:- , including alcohol and marijuana,.
16 SECTION 4. Section 8A of said chapter 90, as so appearing, is hereby amended by
17 striking out, in lines 31 to 35, the words “of marijuana, narcotic drugs, depressants or stimulant
18 substances, all as defined in section one of said chapter ninety-four C, or from smelling or
19 inhaling the fumes of any substance having the property of releasing toxic vapors as defined in
20 section 18 of chapter 270” and inserting in place thereof the following words:- any other
21 intoxicating substance or combination of substances.
22 SECTION 5. Section 8A½ of said chapter 90, as so appearing, is hereby amended by
23 striking out, in lines 27 to 31, the words “of marijuana, narcotic drugs, depressants or stimulant
24 substances, all as defined in section one of said chapter ninety-four C, or from smelling or
25 inhaling the fumes of any substance having the property of releasing toxic vapors as defined in
26 section 18 of chapter 270” and inserting in place thereof the following words:- any other
27 intoxicating substance or combination of substances.
28 SECTION 6. Section 21 of said chapter 90, as so appearing, is hereby amended by
29 striking out, in lines 20 to 23, the words “upon any way or place to which the public has the right
30 of access, or upon any way or in any place to which members of the public have access as
31 invitees, or who,”.
32 SECTION 7. Said section 21 of said chapter 90, as so appearing, is hereby further
33 amended by striking out, in lines 25 to 31, the words “, marihuana or narcotic drugs, or
34 depressant or stimulant substances, all as defined in section one of chapter ninety-four C, or
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35 while under the influence from smelling or inhaling the fumes of any substance having the
36 property of releasing toxic vapors as defined in section 18 of chapter 270, carbon tetrachloride,
37 acetone, ethylene, dichloride, toluene, chloroform, xylene or any combination thereof” and
38 inserting in place thereof the following words:- or any other intoxicating substance or
39 combination of substances.
40 SECTION 8. Section 22F of said chapter 90, as so appearing, is hereby amended by
41 striking out, in line 11, the words “of intoxicating liquor or narcotic drugs”.
42 SECTION 9. Section 24 of said chapter 90, as so appearing, is hereby amended by
43 striking out, in lines 1 to 4, the words “, upon any way or in any place to which the public has a
44 right of access, or upon any way or in any place to which members of the public have access as
45 invitees or licensees,”.
46 SECTION 10. Said section 24, of said chapter 90, as so appearing, is hereby further
47 amended by striking out, in lines 6 to 8, the words “, or of marijuana, narcotic drugs, depressants
48 or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the
49 influence from smelling or inhaling the fumes of any substance having the property of releasing
50 toxic vapors as defined in section 18 of chapter 270” and inserting in place thereof the following
51 words:- or any other intoxicating substance or combination of substances.
52 SECTION 11. Said section 24, of said chapter 90, as so appearing, is hereby further
53 amended by striking out, in lines 18 to 19, the words “, marijuana, narcotic drugs, depressants or
54 stimulant substances” and inserting in place thereof the following words:- or any other
55 intoxicating substance or combination of substances.
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56 SECTION 12. Said section 24, of said chapter 90, as so appearing, is hereby further
57 amended by striking out, in lines 30 to 32, the words “marihuana, narcotic drugs, depressants or
58 stimulant substances, all as defined by section 1 of chapter 94C” and inserting in place thereof
59 the following words:- any other intoxicating substance or combination of substances.
60 SECTION 13. Subdivision (1) of said section 24 of said chapter 90, as so appearing, is
61 hereby further amended by striking out paragraph (e) and inserting in place thereof the following
62 paragraph:-
63 (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by
64 weight, of alcohol in the defendant's blood at the time of the alleged offense, or of the presence
65 or concentration of any other intoxicating substance or combination of substances, or metabolites
66 of any intoxicating substance, as shown by chemical test or analysis of his blood or oral fluid or
67 as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant
68 to the determination of the question of whether such defendant was at such time under the
69 influence of intoxicating liquor, or any other intoxicating substance or combination of
70 substances; provided, however, that if such test or analysis was made by or at the direction of a
71 police officer, it was made either with the consent of the defendant or with the authority
72 conveyed by a search warrant; the results thereof were made available to him upon his request;
73 and the defendant was afforded a reasonable opportunity, at his request and at his expense, to
74 have another such test or analysis made by a person or physician selected by him; and provided,
75 further, that blood shall not be withdrawn from any party for the purpose of such test or analysis
76 except by a physician, physician’s assistant, registered nurse or authorized medical staff of a
77 health care facility. Evidence that the defendant failed or refused to consent to such test or
78 analysis shall not be admissible against him in a civil or criminal proceeding unless such refusal
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 79 constituted a refusal to comply with the terms of a search warrant or court order, but shall be
80 admissible in any action by the registrar under paragraph (f) or in any proceedings provided for
81 in section 24N. If such evidence is that such percentage, by weight, of alcohol in the defendant’s
82 blood was five one-hundredths or less, there shall be a permissible inference that such defendant
83 was not under the influence of intoxicating liquor, and he shall be released from custody
84 forthwith unless there is probable cause of intoxication caused by the ingestion of some other
85 substance or combination of substances, but the officer who placed him under arrest shall not be
86 liable for false arrest if such police officer had reasonable grounds to believe that the person
87 arrested had been operating a motor vehicle while under the influence of intoxicating liquor, or
88 any other intoxicating substance or combination of substances; provided, however, that in an
89 instance where a defendant is under the age of 21 and such evidence is that the percentage, by
90 weight, of alcohol in the defendant's blood is two one-hundredths or greater, the officer who
91 placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend
92 such defendant's license or permit and take all other actions directed therein, if such evidence is
93 that such percentage was more than five one-hundredths but less than eight one-hundredths there
94 shall be no permissible inference of impairment by reason of alcohol.
95 In any prosecution for a violation of paragraph (a) in which the defendant is alleged to be
96 under the influence of intoxicating liquor; of a central nervous system depressant; of a
97 dissociative anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of
98 glue; evidence of impairment, as shown by the administration of a horizontal gaze nystagmus
99 test conducted pursuant to a method approved by the National Highway Traffic Safety
100 Administration, and the detection of one or more of the following indicators: 1) lack of smooth
101 pursuit in left eye; 2) lack of smooth pursuit in right eye; 3) distinct nystagmus at maximum
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102 deviation in left eye; 4) distinct nystagmus at maximum deviation in right eye; 5) onset at or
103 prior to 45 degrees in left eye; 6) onset at or prior to 45 degrees in right eye; shall be admissible
104 and deemed relevant to the determination of the question of whether such defendant was at such
105 time impaired. If such evidence is that 4 or more such indicators were present, there shall be a
106 permissible inference that such defendant was under the influence of intoxicating liquor; of a
107 central nervous system depressant; of a dissociative anesthetic, such as phencyclidine or
108 ketamine; or of toxic vapors, such as vapors of glue. If such evidence is that fewer than 2 such
109 indicators were present, there shall be a permissible inference that such defendant was not under
110 the influence of intoxicating liquor; of a central nervous system depressant; of a dissociative
111 anesthetic, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue. If such
112 evidence is that 2 or 3 such indicators were present, there shall be no permissible inference from
113 such evidence with regard to whether the defendant was under the influence. In any such
114 prosecution, a court may take judicial notice of: (1) the fact that the horizontal gaze nystagmus
115 test has been demonstrated to have scientific validity and reliability when administered by
116 properly trained and certified police officers and when used in conjunction with other evidence,
117 in detecting impairment by alcohol; by central nervous system depressants; by dissociative
118 anesthetics, such as phencyclidine or ketamine; or of toxic vapors, such as vapors of glue; and
119 (2) a contemporary publication of the National Highway Traffic Safety Administration with
120 regard to the proper administration of the horizontal gaze nystagmus test.
121 In any prosecution for a violation of paragraph (a) in which it is alleged that a defendant’s
122 operation of a motor vehicle was impaired by an intoxicating substance other than intoxicating
123 liquor, evidence of the concentration of such intoxicating substance in a defendant’s system shall
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124 not be a precondition to the admissibility of evidence of the presence of such intoxicating
125 substance in the defendant’s system.
126 In any prosecution for a violation of paragraph (a) in which it is alleged that a defendant’s
127 operation of a motor vehicle was impaired, in whole or in part, by the consumption of marijuana,
128 marijuana products, or other forms of tetrahydrocannabinol (THC), the court may take judicial
129 notice that the ingestion of THC can cause impairment in motorists; that it can impair motor
130 function, reaction time, tracking, cognitive attention, decision-making, judgment, perception,
131 peripheral vision, impulse control, and memory; and that ingestion of THC does not enhance a
132 motorist’s ability to safely operate a motor vehicle.
133 SECTION 14. Said section 24 of said chapter 90, as so appearing, is hereby further
134 amended by striking out, in lines 688 to 690, the words “upon any way or in any place to which
135 the public has right to access, or upon any way or in any place to which the public has access as
136 invitees or licensees,”.
137 SECTION 15. Said section 24 of said chapter 90, as so appearing, is hereby further
138 amended by inserting, after the word “liquor”, in lines 693 to 694, the following words:- ; and
139 shal