Michigan Court of Appeals speaks on Medical Marijuana Act

By Joshua M. Covert Nichols Law Firm, PLLC The Michigan Court of Appeals held that a patient who uses medical marijuana with a valid certificate still has no right to operate a motor vehicle after medicating. The court found that the Michigan legislature did not create a clear exception to the drunk driving statute for medical marijuana patients to drive, MCL 257.625(8). The medical marijuana act only prohibits driving while under the influence of marijuana, in other words so long as the person is not under the influence of their medicine they can drive. East Lansing OWI Attorney Mike Nichols says that the ability of the Michigan State Police lab to detect THC at lower levels means that you still have hope if you are arrested for driving even if you are charged with having "any amount" of THC in your system and the MSP lab analysis claims that THC was found in your blood. Nichols, author of the manual by Thomson West on drunk/drugged driving for Michigan lawyers, adds: "the key is to not admit that you medicated. If the officer claims he smells marijuana that does not prove THC is in your system. Remember, THC is the schedule 1 drug that is the strictly illegal compound to have in your system while driving. In my opinion, there is nothing wrong with saying: 'my medical conditions are private' if you are at the roadside on a traffic stop." Nichols points out that the leadership at the Lansing lab is fighting against modern scientific requirements to properly analyze and report uncertainty and the probability of a false positive in a test. "The lab supervisor literally testified that there was zero chance of a false positive in a case recently," Nichols said. "He went on to testify in response to my questions that the basis for that claim is that his data is 'nice'--that is not a scientific statement." That is important because the Court of Appeals equated the detectable presence of marijuana in a person's blood WITH being under the influence. The court held: The point being that the MMMA does not permit all types of medical use of marijuana under all circumstances. There are circumstances under which some uses are permitted and others under which no use is permitted. If the drafters of the MMMA wanted to include immunity for the operation of a motor vehicle in section 4, the act would have to have an explicit grant of immunity either in MCL 333.26424(a) or in MCL 333.26423(e). It does not. Indeed, it explicitly does not permit the operation of a motor vehicle while under the influence of marijuana. And 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 a Schedule 1 controlled substance, including marijuana. That is to say, while "internally possessing" it, (Koon, Slip Op at p 4) So questions remain: 1. How does a medical marijuana patient who wants to operate a motor vehicle reliably determine if they have THC in their system? 2. How does the Michigan State Police lab reliably demonstrate the probability that a measurement is either a true positive identification of THC versus a false positive or the result of passive inhalation or exposure? The Michigan Medical Marihuana Act was approved by the voters of Michigan in 2008. Legislation is pending to modify the act. In addition, several appellate opinions have defined and/or limited the scope of the ability to transfer marijuana (People v McQueen), argue the Act as a defense (People v Redden) and store marijuana (People v King). The criminal law section of the state bar of Michigan also adopted a resolution in June, 20122, to re-classify THC as a schedule 2 drug to allow for medical and other research. Published: Mon, Apr 30, 2012

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