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THC Limits Sought for Drivers Using Marijuana

Clarkston Legal Jan. 3, 2017

Despite the marijuana momentum over the past few election cycles, there are some ominous clouds on the horizon for marijuana users, both medical and recreational.

Along with a host of other year-end statutes, Governor Snyder recently signed the Impaired Driving Safety Commission Act, a bill sponsored by Rep Pete Lucido [R Shelby Township]. The new law is designed to task a commission to come-up with limits to the level of THC -the active ingredient in marijuana- a driver can have in his or her bloodstream when operating a vehicle.

This commission has two-years to make recommendations to the governor relative to the levels of THC acceptable and unacceptable in the blood stream of drivers on Michigan highways. The recommendations could become part of the Motor Vehicle Code regarding the impairment of driving a vehicle, joining alcohol as a highly-regulated substance when behind the wheel. Currently, there is no standard in place and measuring a driver’s blood for THC is cumbersome [requiring a warrant and hospital blood draw] and fraught with legal challenges due to the physiology and the chemistry.

No law is without its critics. In this case, many defense experts assert there is no reliable science to determine when a person is impaired due to THC; that measuring THC in a driver’s bloodstream is distinct from the measurement of alcohol and its known correlation of impairment. For his part, Representative Lucido asserts that the study will provide the government with a scientifically supported threshold beyond which you are precluded from operating a vehicle.

This threshold is important when determining someone’s guilt or innocence in a court of law. If the science [or methodology for measurement] is unsound, it is subjected to rigorous cross-examination. The prosecutor has the burden of production and persuasion in every criminal case; the evidentiary standard -beyond reasonable doubt- is high.

Already, there has been some blow-back to the roadside saliva testing pilot program rolled out last summer by the Michigan State Police; more on that in this post.

If the science is unsupported or can be debunked, it becomes tainted by defense attorneys as “junk science”. A pair of SCOTUS decisions [Daubert and Frye] and their progeny, require an expert witness to base opinion testimony on scientific principles and tested scientific methodology. Criminal convictions cannot be based on junk science.

Let’s see what the Commission comes up with in 2018. While the state’s interest in keeping our roadways safe is very important, it cannot be based on conjecture and speculation.

Meanwhile, at the federal level, the DEA has just published a “final rule” in the Federal Register classifying all forms of marijuana extracts [edibles] -even those without THC- on the dreaded Schedule 1. Until there is a comprehensive federal policy that does not criminalize marijuana, medical marijuana and its grow industry will never truly get off the ground.

If you are ticketed for driving under the influence of drugs, consider hiring a competent defense lawyer that knows the medical marijuana laws.