New case law and Michigan’s Medical Marihuana Act[1] have caused changes in the prosecution and the defense of citizens charged with Driving or Operating Under the Influence of Drugs (Marijuana). According to statistics, since April 6, 2009, over 41,000 Marijuana Cards have been issued[2], and it may comfortably be assumed that a majority of the 41,000 are on our Michigan roads. Therefore, it is necessary that defense counsel understand the impact of the Act1 and recent case law in the defense of the charged, whether a marijuana card holder or not.
Under Michigan’s Operating While Intoxicated[3] – Unlawful Blood Alcohol Level (UBAL), a citizen may be found guilty on a Per Se basis, which arguably means guilt absent “impairment” if it is proven the citizen’s Bodily Alcohol Content (BAC) is at or above .08. Similarly, there is also a per se standard of guilt for Schedule 1 drugs, which includes THC marijuana.[4] Marihuana and THC are specifically listed under the Public Health Code as a Schedule 1.[5]
However, it is important for counsel and client to understand the intricacy of the law as it stands today. Specifically, the method or type of proof that is now required. Recent case law[6] overruled a four- year old case[7] and held that 11-carboxy-THC, a metabolite of THC, is not a Schedule 1. Therefore, evidence of a metabolite of marijuana is not per se proof of guilt. Tests must reveal active THC for a Per Se conviction or must prove the driver was Under the Influence or Impaired by marijuana.
There is some evidence that active THC may be detectable between 3-8 hours after inhaling/ingesting, but it clear that our Supreme Court was clear in their intentions that the metabolite or by-product is not per se evidence of guilt. This ruling is important overall but has an obvious impact considering 41,000 citizens will have at a minimum a by-product of THC in their system.
The Medical Marijuana Act does not permit card holders to drive under the influence; in fact, it specifically prohibits it. [8] The statute specifically does not permit any person to (4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.[9] Therefore, consistent with Feezel, the Prosecution will need to prove the driver was in fact under the influence, or impaired, by marijuana to be successful in its efforts.
Therefore, in order to protect the rights of the accused, it is absolutely necessary to understand the impact of new case law, the changing laws, the validity and methods of chemical testing, and the factors influencing impairment and/or appearance of impairment.
[1] MCL 333.26421, Michigan Medical Marihuana Act
[2] www.michgan.gov/mmp
[3] MCL 257.625(b) and (c)
[4] MCL 257.624(8)
[5] MCL 333.7212(c)
[6] People v Feezel 486 Mich 184, 205 (2010)
[7] People v Derror 475 Mich 316 (2006)
[8] MCL 333.26427
[9] MCL 333.26427(4)
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