Written by attorney Barton W. Morris Jr.

Medical Marijuana and Driving in Michigan

One of the newest and most quickly evolving pieces of legislation in this state is the Michigan Medical Mariuana Act (MMMA).The active ingredient in the “street" drug marijuana, Tetrahydrocannabinol (THC) is widely believed to provide several manners of relief to people that are physically ill. The MMMA was enacted in November 2008 in response to a majority of voters in Michigan believing that marijuana can and should be lawfully utilized to treat debilitating medical conditions. The legislation attempts to provide a comprehensive directive authorizing and regulating its use. Ever since its enactment it has come under heavy scrutiny and criticism from marijuana advocates, opponents, prosecuting officials, defense attorneys and law enforcement. There have been several recent appellate court rulings attempting to interpret the legislature’s intent. Several state level prosecuting attorneys including Michigan’s Attorney General in conjunction with law enforcement have enforced their interpretation of the law which, of course, is being intensely fought by criminal defense attorneys. Municipalities have embraced, condemned or remained silent on the law. Some cities have authorized marijuana businesses called “dispensaries" or “collectives" and other cities have enacted laws saying that selling marijuana in any form is still unlawful. Even judges across the state have differing opinions thereby effectively making every jurisdiction unique to exactly how the law is viewed and enforced. To bring clarification to the Act, the Michigan Legislature is in the process of revising and amending the legislation but that is taking time. In the meantime, we are left to deal with several issues, one of which I will examine, now relates to driving under the influence of marijuana and what does “under the influence" mean?

Our society is experiencing a rising prevalence of driving under the influence of illegal and medicinal drugs. It has been written thatone in three motor vehicle fatalities with known drug test results tested positive for drugs in 2009.Data from road traffic arrests and fatalities indicate that, after alcohol, marijuana is the most frequently detected psychoactive substance among driving populations. Marijuana has been shown to impair performance on driving simulator tasks and on open and closed driving courses for up to approximately 3 hours.Michigan law prohibits any person to drive a motor vehicle after consuming or ingesting alcohol, drugs, or a combination of both which impairs that person’s ability to drive. A measure of intoxication from the consumption of alcohol is commonly performed with a breath test or blood test. The results are expressed in grams as a percentage of the breath or blood. The legal limit in Michigan is .08 grams or more per 100 milliliters of blood or per 210 liters of breath. But what about driving of a vehicle by a person who may legally smoke marijuana?

Presently Michigan is one of 17 states that have a zero tolerance law that makes it unlawful for a person to operate a motor vehicle with any amount of a controlled substance in their body. Most people believe that THC stays in your body for approximately thirty days but that is not true. As THC is being broken down in a person’s body a natural byproduct is created called a metabolite also known as Carboxy-THC. That metabolite, which is what is tested for in common drug tests, is not THC and therefore does not count for purposes of the driving with the presence of THC. Nor does the metabolite cause any type of impairment. This interpretation of the law occurred in June of 2010. Prior to that date, even the presence of Carboxy-THC in a person’s body while driving was illegal. Actual THC will remain in a person’s blood between three and six hours depending upon how much was ingested, the manner of intake, body fat percentage and frequency of past use. Therefore it is illegal to drive a vehicle in Michigan within at least three hours after smoking marijuana.

There are some arguments against Michigan’s Zero Tolerance law. First, just because a person has a small amount of THC in their body does not mean their driving would be adversely affected. This is a public policy argument. Also, the 14th Amendment of the United States Constitution guarantees that all persons in the country shall enjoy equal protection of the laws. There is a rational argument that MMMA patients are not being treated equally and fairly in violation of the 14th Amendment because they are more likely to have THC in the body and therefore treated differently than persons who are not MMMA card holders. This argument has been accepted by at least one judge in Michigan and will soon be reviewed by higher Michigan courts. That is another example of how our new medical marijuana law in its infancy is evolving in its interpretation and enforcement. If you would like me to write on other MMMA related interests, please email me at [email protected].

Barton W. Morris, Jr. specializes and exclusively handles Federal and State criminal defense cases and license restoration matters. He was admitted to practice in the State of Michigan in 1998 and United States District Court for the Eastern District of Michigan in 1999. Barton began his training as a judicial clerk for the Honorable David F. Breck in the Oakland County Circuit Court from 1995-1999. After leaving the clerkship, Attorney Morris has enjoyed a very successful and distinguished career defending individuals accused of crimes. Previously he was the co-host of a popular legal talk show for several years, has been heard frequently giving legal advice on radio stations 93.1FM, 89X and is presently the featured criminal attorney heard on 97.1FM The Ticket. He is currently Of Counsel to the Rasor Law Firm and practices in downtown Royal Oak, Michigan.

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