In January 2020 at approximately 6:30 p.m., Jennifer Soule allegedly crossed over the dividing line on Route 117 in Lancaster and crashed into another vehicle.
When police arrived, Jennifer told officers that her dog leaped into her lamp while she was driving, startling her and causing her to lose control of the car.
Jennifer also told officers that, earlier in the day, she had taken prescription suboxone.
According to the Supreme Judicial Court,
Suboxone is the brand name of a medically based treatment product containing buprenorphine and naloxone, prescribed for the treatment of opioid dependence.
Care & Protection of Zeb, 489 Mass. 783, 784 note 2 (2022)
Officers asked Jennifer to perform a field sobriety test which, in their opinion, she failed.
Jennifer was charged with operating under the influence of narcotic drugs.
She opted to dispute the charge in a jury-waived bench trial.
At trial it was shown that Jennifer operated a vehicle while impaired (points she would concede on appeal).
However, the prosecutor presented no evidence to show that prescribed suboxone was in fact a controlled substance covered by the OUI statute.
Despite the total lack of evidence on this point, the judge (who was the trier of fact) concluded that Jennifer was guilty.
Jennifer appealed the verdict, contending that
there was no evidence from which a rational trier of fact could have found beyond a reasonable doubt that she was under the influence of a narcotic drug as defined by G.L. c. 94C, Section 1.
The Appeals Court agreed with Jennifer and overturned her conviction.
The justices begin by citing the applicable law,
The statutory crime of operating a motor vehicle while under the influence of narcotic drugs does not criminalize operation under the influence of all narcotics, stimulants, or depressants, but only those defined in section one of chapter ninety-four C. Absent proof that the defendant’s operation was impaired by a drug, depressant, or stimulant that is among those so defined, no statutory violation arises. (Citations and quotations omitted.)
The Commonwealth acknowledged that it submitted no evidence at trial to show suboxone qualified as a “narcotic, stimulant, or depressant” under the statute.
Instead, the Commonwealth argued that the trial judge implicitly took “judicial notice” of the fact that suboxone qualified under the statute during an exchange with defense counsel.
During that exchange, defense counsel argued that the Commonwealth had not “presented any proof or testimony relating to the type of drug, class of drug,” and the judge responded by asking, “Didn’t [the Commonwealth] indicate that [the defendant] had admitted that it was Suboxone?” The prosecutor argued: “[Suboxone] is a controlled substance under both the controlled substances laws as well as OUI drugs. And therefore, certainly the Commonwealth has met its burden at this time.” Thereafter, in his closing argument the prosecutor asserted that Suboxone is a controlled substance.
The Appeals Court rejected the argument that judicial notice was taken implicitly.
the record does not provide a sufficient basis from which we can conclude that the judge took judicial notice as the Commonwealth now asserts. The Commonwealth did not raise the issue before trial or during its case in chief, and the judge did not make any explicit ruling regarding the nature of Suboxone sua sponte. Put simply, in a criminal case where the defendant’s liberty is at stake, more than what has been shown here is required, even in the context of a jury-waived trial
Ultimately, the justices concluded that the Commonwealth failed to meet its burden at trial and, accordingly, the conviction was overturned.
To read the full opinion, click the document below.
Law Office of Justin R. McCarthy 
most judges have basically overlooked Suboxone. As they should. I was charged with buying Suboxone six tablets, but stuck to my guts and beat it on dismissal. No one should be punished for trying to help their fellow man
LikeLike