Two year anniversary of fatal Portsmouth crash highlights difficulty of testing drivers for presence of marijuanaPosted by On


Rhode Island v. Houston Smith exemplifies the difficulties for police officers and actors in the judicial system when it comes to DUI cases involving marijuana.

PORTSMOUTH — The driver’s blood was drawn twice after the fatal car crash on Nov. 10, 2017; the first police officer on scene said his car smelled like alcohol. But the drawn blood — both samples — would show that his alcohol level was below the detection limit, “essentially nothing,” Portsmouth Detective Lt. John Cahoon said in a September interview.

But Houston Smith’s blood tested positive for THC, the psychoactive property in cannabis.

“That’s what became the issue with this one,” Cahoon said. And yet “there’s no way to prove that the THC was active at the time that the accident occurred,” Portsmouth Detective Sgt. Khatu Khubchandani added.

Both Cahoon and Khubchandani sat down with The Daily News in September to answer questions about the DUI charges levied against Smith, a 20-year-old Massachusetts resident at the time of the 2017 crash on West Main Road that killed Dina Occhi, 90, of Portsmouth and Theodore White, 59, of Little Compton.

On June 26 of this year, the statewide grand jury returned a “no true bill” against Smith for two counts of DUI — death resulting — and one charge of DUI with serious bodily injury resulting. The grand jury decides whether sufficient evidence has been presented to return a “true bill” against a defendant. If a true bill is returned, the attorney general must then indict, bringing charges against that defendant in Superior Court. But that didn’t happen in this case.

The Daily News obtained police reports and court records before a motion to seal Smith’s files was filed in District Court in Oct. 25 of this year; on Nov. 5 the motion to seal was granted by Judge Colleen Hastings. Calls to a phone number listed for Smith in court records were not returned, nor were calls to his attorney, Gerrick Van Deusen.

Rhode Island v. Houston Smith exemplifies the difficulties for police officers and actors in the judicial system when it comes to DUI cases involving marijuana.”It’s the blood,” Cahoon said when it comes to damning or vindicating evidence in DUI cases. But a sample that tests positive for THC isn’t as clear an indicator of impairment as a sample that tests positive for alcohol.

“Marijuana has a very long half-life,” Richard Humphrey, a Tiverton-based lawyer who largely focuses on DUI cases, said.

“[T]he amount of alcohol in a person’s system can be quantified, where marijuana cannot,” Middletown Police Sgt. Michael Maruska said in an email to The Daily News. “Because of this, the department relies more heavily on the operation violations and indicators observed by the officer for marijuana involved cases.”

The crash

On Nov. 10, 2017 around 8:12 p.m., Portsmouth police responded to West Main Road near the Raytheon Co. campus for a report of a motor vehicle crash. Patrol Officer Amanda Weaver was the first to arrive on scene.

According to the collision reconstruction report, Smith — the driver and sole occupant of a 2014 Ford Focus — was traveling southbound when he crossed the double yellow lines and struck a 2004 Chrysler Town and Country, carrying three occupants, head on. Dina Occhi and Theodore White succumbed to their injuries. The driver of the minivan was Dina’s daughter and Theodore’s wife, Maryann White. She survived, but suffered serious injuries.

“[The Portsmouth Fire Department] quickly arrived on scene and began assessing the injuries. I stayed in the area of Smith’s vehicle as I could detect a slight odor of an alcoholic beverage emanating from the vehicle,” Weaver wrote in her report. “Due to the odor of the alcoholic beverage I noticed within his vehicle, I conducted the Horizontal Gaze Nystagmus test, yielding 0 clues.”

The Horizontal Gaze Nystagmus test is a standard field sobriety test given to a person suspected of driving under the influence; nystagmus is an involuntary jerking of the eyeballs and an indicator of alcohol consumption. Weaver didn’t observe any nystagmus in Smith’s eyes.

Smith told Weaver he had left a show in Providence and he “had a half glass of wine after the show,” Weaver’s report says. He told police he had fallen asleep behind the wheel.

On Nov. 11, 2017, Portsmouth Detective Inspector Lee Trott helped to complete an inventory search of Smith’s vehicle. According to Trott’s report, he located and seized the following items: a small gold cylinder containing approximately one quarter ounce of marijuana in a plastic bag; a marijuana cigar with a green wrapper; a large plastic cup containing burnt marijuana cigars; a plastic cup with a blue lid containing alcohol; a “Black Velvet” nip bottle with a small amount of alcohol; a “Hypnotiq” vodka nip bottle with a small amount of alcohol and a black pouch containing a marijuana grinder, sealed cigar wraps and an empty aspirin bottle with marijuana remnants.

RI v. Houston Smith

Smith was cited for marijuana possession, for which he paid a $150 fine, Cahoon said in October. He was also cited for traffic infractions and paid the associated fees, according to Rhode Island Traffic Tribunal records. But the grand jury returned a “no true bill” against him for the three felony charges.

“I am not able to discuss grand jury matters,” Kristy dosReis, public information officer with the attorney general’s office, said in an email when asked specific questions about the grand jury’s decision.

“We wanted some accountability,” Joe Occhi, Dina’s son and Maryann’s brother, said in an interview in August at his restaurant, The Valley Inn. An establishment hauntingly close to the collision scene.

“We never asked for a big long jail term [for Smith],” Occhi said, detailing his frustration and confusion with the judicial system when it came to this particular case. “It makes you think about lives and accountability…all this is is a gross negligence.”

When it comes to determining marijuana impairment, “we’re somewhat in the wild west,” Occhi added. He acknowledged in August, and again in October, that marijuana was a significant factor in the case. “Once [marijuana is] introduced into a situation like this, they all put their hands up and back up.”

DUIs involving marijuana

Asked why DUI cases involving marijuana are so difficult to prosecute, Attorney General Peter Neronha said it’s because “we don’t have a test yet.”

“It’s my primary concern with legalization of marijuana at this point,” Neronha said. “Until we get [more reliable tests] these cases are going to remain difficult to prosecute.”

Talk of legalizing recreational marijuana has swirled in the state the past few years, especially since Massachusetts shops began selling recreational marijuana in November of 2018.

Humphrey said his practice has seen an uptick in DUI cases involving marijuana in both Rhode Island and Massachusetts since recreational marijuana pot shops opened up in the Bay State. But even still, of the approximate 50 to 100 DUI cases that the firm handles a year, Humphrey said they’re “mostly alcohol” cases. Thirty percent of the DUI cases he litigates involve marijuana, usually in combination with another substance like alcohol, he said.

Humphrey acknowledged it’s tough to prosecute DUI cases where marijuana is the focal substance due to a lack of standards and widely-accepted tests. The defense would likely prevail “at least at this stage until we have more tools to evaluate it, to measure it and to prosecute it,” he said.

But without such tools, police are employing other methods to gauge marijuana impairment.

“No matter the stimulus, officers are trained to look for impairment by conducting the Standardized Field Sobriety tests,” Maruska said in an email to The Daily News. “These tests are commonly associated with alcohol by the public but are used to determine whether a motorist can safely operate a motor vehicle. Therefore, the only…

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