Court ruling hasn’t cleared the air 

Controversy over interpretation of ruling on medical marijuana and driving

Update: Since this column was published on May 2, it has generated a heated debate among people with more than a casual knowledge of medical marijuana law and how it is applied in our legal system. The prevalent opinion is that my statement that medical marijuana patients cannot legally drive is wrong. 

Attorney John Targowski pointed out that, before June 8, 2010, THC-COOH, the metabolite derived when the human body processes THC, was considered a Schedule 1 drug. However, the Michigan Supreme Court ruled in People v. Feezel that THC-COOH is only a byproduct of how your body processes THC and is not psychoactive, “Thus, anyone can drive with any amount of THC-COOH, patients or not” and not be legally impaired. 

I agree with Targowski and apologize for spreading misinformation. However, a few others say that many prosecutors and judges have a different understanding of the ruling, saying it is irresponsible to say it’s OK to drive with THC-COOH in your system.  

The bottom line is that if you medicate with marijuana daily, then chances are that you do have THC in your system at all times. Whether you feel impaired or not, this makes you legally vulnerable to charges of DWI. 

Again, I apologize for misrepresenting the legal implications of People v. Koon. There are, however, some people who interpret it this way. 

This highlights the need for Michigan law to recognize the science about marijuana and set a fair manner of determining when someone is actually impaired by marijuana use rather than imposing a zero-tolerance standard. 

The amended column below has removed the most extreme implications originally expressed while maintaining the concerns of those who believe that some prosecutors and judges take the position that the Koon ruling applies to all elements of marijuana and their derived metabolites, which linger in the body far longer than THC itself.

 

On April 17, the Michigan Court of Appeals made a controversial ruling in People v. Koon, a Grand Traverse County case in which a medical marijuana patient was charged with driving while impaired simply because there was marijuana residue present in his system.
The Court of Appeals ruled that the Michigan Medical Marihuana Act does not overrule a zero tolerance law that prohibits drivers from operating a motor vehicle with any amount of marijuana in their system. 

The ruling read: “… in the motor vehicle code, the legislature has provided a definition of what constitutes being under the influence of marijuana: The presence of any amount ... of marijuana.” 

Since marijuana is detectable in the human body for several weeks (whether that's THC or other substances in the plant), that pretty much takes the driving privileges of the state's 130,000 medical marijuana patients away. No driving to work, the doctor's office, the grocery store — nothing.

This ruling is extreme. The motor vehicle code allows for up to .08 blood alcohol content in drivers' systems before they are legally impaired. This ruling reflects an attitude that considers medical marijuana users as criminals.

"The MMMA gives protection for internal possession of marijuana," says Robin Schneider, legislative liaison for the Michigan Association of Compassion Centers. "That's because marijuana stays in your system for 30 days or longer, the impaired time is much shorter than that. That's something I'm hoping law enforcement will take into account and stick with an impairment assessment at a roadside test. I know a lot of people who have HIV and cancer and things like that, and I don't think the voters intended to completely revoke their driving privileges. We created the MMMA so they can have a healthier option of treatment, and I hope law enforcement officers will use discretion when applying this new ruling."

The court's ruling was based strictly on the language in motor vehicle laws and didn't actually present any opinion about what impairment is. Scientific studies in recent decades have shown that marijuana impairment lasts several hours, not days or weeks.

A 1992 U.S. Department of Transportation National Highway Traffic Safety Administration report concluded: "The THC-only drivers had a responsibility rate below that of the drug-free drivers. ... While the difference was not statistically significant, there was no indication that cannabis by itself was a cause of fatal crashes." 

In other words, people who smoke appear to cause no more accidents than drivers who are completely straight. However, when you mix pot with alcohol or other drugs, don't get behind the wheel. Stay home and drive your TV remote.

In addition, the ruling does not take into account the difference between THC and other cannabinoids. THC is the substance in marijuana that causes the high, but other benign cannabinoids might indicate the presence of marijuana in the system but do not indicate impairment. It's an issue that has to be worked out between science and the law. Colorado has considered a THC impairment level at 5 nanograms per milliliter and Washington at 8 nanograms per milliliter. Although neither state has settled on a level, it's a hot topic in both as they face votes on legalization this fall. Ohio and Nevada set the impairment level at 2 nanograms per milliliter, while Pennsylvania sets it at 5 nanograms per milliliter. Those are the only states that have such laws. 

One reason the Court of Appeals ruling concerns medical marijuana activists is that the pending House Bill 4834 in the state Legislature would allow law enforcement officers access to the state medical marijuana registry without a warrant. Some believe this will make patients sitting ducks for police officers who access the registry and find out who is a patient, then stop them while driving. Actually, an officer wouldn't even need to go that far. If a driver produces a registry card at a routine traffic stop, that alone is probable cause for the officer to have the driver's blood tested in order to get a DWI determination.

On the good side, HB 4834 requires the state registry to review petitions for possibly adding new conditions that qualify patients to use medical marijuana, something the office of Licensing and Regulatory Affairs has not yet done although required by the MMMA of 2008.

Other pending legislation, HB 4851 (defining a bona fide doctor-patient relationship and defining an "enclosed, locked facility"), HB 4853 (making it a felony to sell marijuana in violation of the MMMA), and HB4856 (making it a misdemeanor to transport marijuana in a vehicle unless it's in the trunk or otherwise inaccessible to passengers) are less controversial, yet activists feel they nibble away at the rights provided by the MMMA.

It will take a three-quarters majority of the Legislature to pass HB 4834 and HB 4851 because they are modifications to the MMMA. The others are changes in the state penal codes and require only a simple majority.

"They're having a tough time getting that three-quarters majority," says Tim Beck, an activist who helped push for the MMMA. "The Democrats are closing ranks, although some are getting bought off."

There is pending legislation not yet introduced that could be seen as positive for medical marijuana dispensaries in Michigan. Most dispensaries in the state have shut down since a 2011 Court of Appeals decision that "patient-to-patient" transfers of medical marijuana are not allowed. This case has been appealed to the state Supreme Court, although the high court has not decided whether it will review the ruling. 

Rep. Michael Callton (R-Nashville) is working on legislation that would legalize dispensaries. In January, Callton spoke at a medical marijuana forum and said, "I am a chiropractor and have actually seen how this can help people." He went on to discuss that cancer and chronic pain patients have benefited from medical use of marijuana. His legislation, HB5580, could be introduced as soon as this week. 

Nick Wake, Callton's legislative director, says, "There could be some things to help fill in the gaps to help both patients and law enforcement in keeping with the spirit of the law. If it's going to be medical, let's make it medical. We're discussing some issues and looking at potential outcomes of, 'If we did this, what would happen?' ... We're trying to address the issue of safe access for patients; we want it to be a safe clinical facility."

HB 5580 leaves the decision of whether to allow dispensaries to local municipalities.

"Both Republicans and Democrats are saying there really should be a safe place where patients can go," Schneider says. "Two-thirds of all patients don't have a caregiver; I do think there will be bipartisan support. They just want to see a set of rules and guidelines that people can follow. ... When we look at this from a health and public safety standpoint, where patients can go and safely access their medicine, have the ability to test medicine, regulate where it's coming from and get it into the proper form, people listen to that. Each local municipality should be able to regulate this the way they see fit. In general, what I'm hearing is they would rather have this stuff happen in a centralized location rather than parks, parking lots and alleys."

The wild days of medical marijuana that followed passage of the MMMA are apparently over, though there are still numerous issues pending. How will the Supreme Court rule on dispensaries? Will the House bills go anywhere? Regarding the proposed vote on decriminalization in Detroit: Will the city appeal to the Supremes or will it go on the ballot in August? And will the underfunded petition initiative to legalize marijuana statewide get enough signatures? 

And as regards the impairment issue and driving, be really careful. Too bad we don't have great public transportation around here. That would solve a lot of problems.

vehicle unless it's in the trunk or otherwise inaccessible to passengers) are less controversial, yet activists feel they nibble away at the rights provided by the MMMA.

It will take a three-quarters majority of the Legislature to pass HB 4834 and HB 4851 because they are modifications to the MMMA. The others are changes in the state penal codes and require only a simple majority.

"They're having a tough time getting that three-quarters majority," says Tim Beck, an activist who helped push for the MMMA. "The Democrats are closing ranks, although some are getting bought off."

There is pending legislation not yet introduced that could be seen as positive for medical marijuana dispensaries in Michigan. Most dispensaries in the state have shut down since a 2011 Court of Appeals decision that "patient-to-patient" transfers of medical marijuana are not allowed. This case has been appealed to the state Supreme Court, although the high court has not decided whether it will review the ruling. 

Rep. Michael Callton (R-Nashville) is working on legislation that would legalize dispensaries. In January, Callton spoke at a medical marijuana forum and said, "I am a chiropractor and have actually seen how this can help people." He went on to discuss that cancer and chronic pain patients have benefited from medical use of marijuana. His legislation, HB5580, could be introduced as soon as this week. 

Nick Wake, Callton's legislative director, says, "There could be some things to help fill in the gaps to help both patients and law enforcement in keeping with the spirit of the law. If it's going to be medical, let's make it medical. We're discussing some issues and looking at potential outcomes of, 'If we did this, what would happen?' ... We're trying to address the issue of safe access for patients; we want it to be a safe clinical facility."

HB 5580 leaves the decision of whether to allow dispensaries to local municipalities.

"Both Republicans and Democrats are saying there really should be a safe place where patients can go," Schneider says. "Two-thirds of all patients don't have a caregiver; I do think there will be bipartisan support. They just want to see a set of rules and guidelines that people can follow. ... When we look at this from a health and public safety standpoint, where patients can go and safely access their medicine, have the ability to test medicine, regulate where it's coming from and get it into the proper form, people listen to that. Each local municipality should be able to regulate this the way they see fit. In general, what I'm hearing is they would rather have this stuff happen in a centralized location rather than parks, parking lots and alleys."

The wild days of medical marijuana that followed passage of the MMMA are apparently over, though there are still numerous issues pending. How will the Supreme Court rule on dispensaries? Will the House bills go anywhere? Regarding the proposed vote on decriminalization in Detroit: Will the city appeal to the Supremes or will it go on the ballot in August? And will the underfunded petition initiative to legalize marijuana statewide get enough signatures? 

And as regards the impairment issue and driving, be really careful. Too bad we don't have great public transportation around here. That would solve a lot of problems.

 

Larry Gabriel is a writer, musician and former editor of Metro Times. Send comments to letters@metrotimes.com.

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