Defense counsel did not specify the grounds for his objection and did not argue -- then or at any point before or during trial -- that the trooper should not be permitted to opine that the defendant was under the influence of marijuana. Contrast Commonwealth v. Smith, 95 Mass.App.Ct. 437, 438 (2019) (defendant moved in limine to preclude police from opining as to whether he was under influence of marijuana)
Moreover, Rei neither gave an opinion on the defendant's impairment, nor claimed to be an expert. See Commonwealthv.Smith, 95 Mass.App.Ct. 437, 444 (2019). Finally, there is no reason to believe the jury was misled or confused about the proper purpose of the assessments where the judge instructed the jury, in line with Gerhardt, that the "roadside assessments are not scientific tests of impairment by marijuana or [c]lonazepam," and that it was for the jury to determine how much weight, if any, to give those assessments.
An OUI (marijuana) conviction requires the Commonwealth "to prove beyond a reasonable doubt that the defendant operated the car under the influence of marijuana, an influence that resulted in the impairment, to any degree, of an individual's ability to safely perform the activity in question" (quotations omitted). Commonwealthv.Smith, 95 Mass.App.Ct. 437, 440 (2019), quoting Commonwealthv.Bouley, 93 Mass.App.Ct. 709, 712 (2018). "[T]he defendant's performance on roadside assessments is admissible at trial to the extent that [the assessments] are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle" (quotations omitted).