If a police officer can smell burning marijuana or can see a driver holding a lit marijuana joint, that's too bad in the state of Massachusetts. According to a recent ruling from the state's Supreme Justice Court, neither of those instances gives police the right to pull over the vehicle.

"In 2008, as a result of an initiative petition adopted by the voters, possession of one ounce or less of marijuana changed from being a criminal to a civil offense in the Commonwealth," the court stated. "As a consequence of the change, this court has concluded that once police have validly stopped a vehicle for a reason independent of marijuana, the odor of burnt marijuana alone does not create probable cause or even a reasonable suspicion of criminal activity sufficient to justify ordering the vehicle's occupants to get out of the vehicle."

What does this mean for the safety of those in the state of Massachusetts using public roads? It means Massachusetts law enforcement officers have limits that do not exist anywhere else in the United States, in how they can handle those who use marijuana and choose to drive.

The ruling eliminates the potential to prevent erratic or dangerous driving before it occurs. Unfortunately, the more common alcohol- or marijuana-related traffic encounters that officers have with those driving impaired from alcohol or marijuana is typically after an accident or death.

When there is a tragedy, this warrants testing using field sobriety methods and biologic fluids to determine the influence of substances. Other encounters with impaired drivers follow the observations of erratic driving before there is harm, and again employ the use of field sobriety methods and the testing of, breath, blood or saliva.

The observation of a driver or passenger using alcohol does provide the justification to further investigate by law enforcement, and the federal government has recognized this is an opportunity to prevent impaired driving. In 2002, federal policy was developed requiring individual states to adopt "open container" laws regarding consumption of alcohol in motor vehicles or risk losing funding.

The program — TEA-21 — specifically stated: "Each State shall have in effect an Open Container law that prohibits the possession of any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State."

Today, 39 states and the District of Columbia have open container laws that comply fully with the federal government guidelines.

The issue of a driver in a motor vehicle actively using a marijuana joint is being addressed in all the states that have legal recreational use of marijuana. Fortunately, in the interest of public safety, none of the states addressed it the manner in which Massachusetts did.

Of the four states with legal recreational use of marijuana, three have approached the use of a marijuana joint by a driver as a public health hazard and have strategies to apply the same open container laws developed for alcohol toward marijuana.

The state of Washington addressed the issue in the newest version of House Bill 1276. The law, signed by the governor June 30 and having taken effect Sept. 26, makes it a violation to have any open container of marijuana in the main compartment of a vehicle.

As early as 2013, Colorado used the open container laws to model legislation regarding marijuana. S.B. 283 made it illegal to have marijuana anywhere in a vehicle's passenger area — including the glove box — in an open container, container with a broken seal or if there was evidence that marijuana was consumed. A driver holding a smoking joint would be a clear violation of the law. Colorado also considers any use of marijuana on a public roadway as a violation of law.

Alaska also does not allow people to drive on the public streets or highways when there is an open container of alcohol anywhere in the passenger compartment of a vehicle, and there is proposed legislation to apply this to marijuana as well.

The state of Massachusetts has not paid adequate attention to how the use of marijuana — recreational or medical — may be impacting the safety of the citizens using public roads and highways. States such as Washington, Colorado and Alaska have learned such lessons after observing harm to their citizens.

Denying law enforcement public servants basic tools that reduce the use of substances that impair driving creates a threat to the safety of all citizens. The observation of the actual or potential consumption of a known substance that impairs driving is recognized as a danger, otherwise such efforts to enact and enforce open alcohol container laws would have not been necessary.

The observation of the actual or potential consumption of a driver using marijuana in the form of observed odor or presence of a lit joint, is an observation of danger to the driving public. Treating it otherwise creates a serious threat to everyone.