With Michigan’s legalization of recreational marijuana in 2018, a number of legal issues have arisen. Michigan has a zero-tolerance law on the books. Under this law, having any amount of a Schedule I drug in your system while driving is illegal. Marijuana is considered a Schedule I drug. However, there is an exception for registered medical marijuana users. In these cases, prosecutors must prove impairment for a conviction. The Impaired Driving Commission notes that this exception applies to legal recreational marijuana users, putting the burden of proof on prosecutors.
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How THC Impacts Individuals Differently
Legislative efforts have focused largely on finding a level of THC in the blood that definitively proves impairment, much like the .08 level used to prove the impairment of a drunk driver. However, these efforts ignore the fact that THC can affect individuals in wildly different ways.
A report published by the Impaired Driving Commission confirms this. The commission notes that regular cannabis users develop a tolerance to the drug. While a habitual user may ingest or smoke a considerable amount without experiencing any change in their impairment level, someone who has never used cannabis could become impaired very quickly.
The Impaired Driving Commission, which includes toxicologists and state police experts, has recommended against setting a legal limit.
The Push to Set a Legal Limit
Given statewide concerns about how the legalization of marijuana will impact road safety, it is no surprise that legislators have attempted to set hard-and-fast laws that can immediately determine an individual’s level of impairment. Other states have set THC blood limits. The limit in Pennsylvania is 1 nanogram per milliliter, while the limit in Colorado is 5 nanograms per milliliter.
Experts note the difficulty of getting an accurate reading. THC, the active chemical in cannabis, has a short half-life. By the time an individual gets a blood test, their levels could decrease enough to get a false negative. On the flip side, low amounts of THC can linger. This could lead a driver to test positive even if they have not smoked in days.
Despite the fact that a large body of evidence indicates that there is not a strong correlation between blood concentration of THC and driver impairment, legislators continue to advocate for a legal limit in Michigan. This has also led to the creation of a saliva testing pilot program that is still in effect on Michigan roads today.
Michigan’s Roadside Testing Pilot
The first phase of the saliva testing pilot program lasted from November 2017 to 2018. The second phase started in October 2019 and is ongoing. Officers with specialized training in drug impairment and recognition conduct a saliva test to determine whether or not a driver is under the influence. The results from the first part of the test are murky. While overall supporting the use of saliva testing, the amount of samples is so low that it is difficult to tell whether or not it is effective.
Even with saliva testing protocols in place, the burden of proof is on the prosecutor to prove that a driver was impaired at the time of the arrest. Prosecutors may attempt to prove impairment with the results of field sobriety tests and the observations of drug recognition experts.
Can Impaired Driving Be a Lesser Included Offense of Operating While Intoxicated?
In a recent court case, People v. Michael Dupre, which is pending in the Michigan Court of Appeals, the state argued that “impaired driving” can be a lesser included offense of “operating while intoxicated” where the driver was allegedly under the influence of medical marijuana. However, there is a valid question about whether a person can be convicted of impaired driving while using marijuana for medical purposes. We are currently arguing that the same burden applies in cases that affect recreational marijuana users; however, it is currently unsettled law.
Impaired driving, or an OWVI, is the least severe of drinking and driving or drugged driving offenses in Michigan. According to Michigan law, it means that the person’s ability to operate the motor vehicle is visibly impaired. It is often a sought after goal in plea agreements in a DUI case that cannot be dismissed. Impaired driving very often does not result in jail time and you can maintain your ability to drive, usually with only 90 days of restricted driving.
By contrast, operating while intoxicated (OWI) is a conviction that results in more serious consequences. An OWI conviction requires a complete “hard” driver’s license suspension for at least 30 days, followed by restricted driving. If you had a high BAC, license sanctions can be worse.
The Michigan Medical Marijuana Act prohibits arrest, prosecution or penalty for the use of medical marijuana unless the person operates a motor vehicle while under the influence. Thus, a person should not be convicted of “impaired driving” while taking medical marijuana. If there is not enough evidence to prove actual impairment in an OWI, then the case should be dismissed. Again, our current argument is that the same burden should apply in recreational marijuana use cases.
Know Your Rights If You Are Pulled Over for Impaired Driving
If you get stopped for driving while under the influence of drugs or alcohol, it is crucial to retain an attorney who is committed to defending your rights. When you work with DeBruin Law PLLC, you can feel confident that we will do everything possible to challenge the prosecutor’s evidence and protect your rights. To schedule a consultation, call us at 517-324-4303 or fill out our contact form to have someone reach out to you.