Michigan: Medical Marijuana Act Trumps Per Se Driving Law

A Michigan traffic safety law that prohibits the operation of a motor vehicle by persons who possess any presence of THC in their blood, regardless of whether or not they are behaviorally impaired by the substance, may not be strictly applied to state-qualified medical cannabis patients. So decided the Michigan Supreme Court on Tuesday in the case People v Koon.

In a unanimous opinion, the Court determined that legal protections extended to state-qualified patients under the Michigan Medical Marihuana Act, enacted by voters in 2008, supersede the state’s zero tolerance, internal possession law. As a result, the Court determined that state prosecutors must establish that authorized patients charged under the statute are actually impaired by their cannabis use in order to gain a DUI criminal conviction.

According to the syllabus of the Opinion:

“The MMMA [Michigan Medical Marihuana Act] does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, the MMMA’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with MCL 257.625(8) [the state’s zero tolerance per se DUI law], which prohibits a person from driving with any amount of marijuana in her or system.”

The state’s zero tolerance per se drug law remains applicable to non-patients. Under such laws, motorists are guilty per se (in fact) of a criminal traffic safety violation if they engage in the act of driving while detectable levels of certain controlled substances or, in some cases, their inert metabolites (byproducts) are present in the defendants’ blood or urine. Proof of actual impairment is not a requirement for a conviction under the law.

To date, ten states — Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin — have enacted legislation imposing zero tolerance per se thresholds for the presence of cannabinoids and/or their metabolites. (State-authorized medical cannabis patients in Arizona and Rhode Island are exempt from prosecution under these per se statutes unless the state can provide additional evidence of psychomotor impairment.)

Five additional states impose non-zero-tolerant per se thresholds for cannabinoids in blood: Montana (5ng/ml — law takes effect on October 1, 2013), Pennsylvania (1ng/ml), Ohio (2ng/ml), Nevada (2ng/ml) and Washington (5ng/ml). Most recently, Colorado lawmakers approved legislation stating that the presence of THC/blood levels above 5ng/ml “gives rise to permissible inference that the defendant was under the influence.” State-qualified patients in Colorado, Montana, and Nevada are not provided legal exemptions from these statutes, although legislation is presently pending in Nevada to do so.

NORML believes that it is inadvisable to infer behavioral impairment based on the presence of blood/cannabinoid levels alone — a position that we outline here, here, and in public testimony here.

Such caution is similarly expressed by the United States National Highway Transportation and Safety Administration, which acknowledges: “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”

A 2013 review of per se drugged driving laws and their impact on road safety found “no evidence that per se drugged driving laws reduce traffic fatalities.”

21 thoughts

  1. Way to go Michigan, Now the Laws about Losing our Jobs because of Medical Mariajuana use is wrong , I have 0 Points ever and have a Class A Cdl and I have my medical card but cannot use because it will put Thc in my system.. It’s either have a job and not smoke or have medical mairjuana and Not have a Job..

  2. And if i was charged with this type of situation, Can this be retroactive and apply to my current situation?

    [Paul Armentano responds: If you are qualified patient in Michigan charged with a violation of the state’s per se driving law, this ruling would apply to you. If you are not, it would not.]

  3. Looks like the officers are a little upset that people can smoke cannabis in Michigan and the easy way to get a jab in is by going after so called “Drugged Driving”.. Sad to see but there is progress in the Court System to some extent with allowing judgement of impairment. Touchy subject on how much cannabis is too much but will be interesting to see how everything pans out. Hoping for good news in regulation efforts in Ohio.

  4. “NORML believes that it is inadvisable to infer behavioral impairment based on the presence of blood/cannabinoid levels alone.”

    To waste the people’s money on policies that do not advance the cause of public safety is pointless and cruel. We need science-based public policy, not cruel ideological warfare on the unimpaired.

  5. I keep saying this but I’ll say it again: Line up the last 15-20 yrs state by state marijuana legalization status with state by state traffic safety records for same time period and you will see a strong INVERSE correlation between marijuana permissiveness and incidence of accidents and fatalities. It appears that the states that are hardest on marijuana are also the states with the highest traffic incidents, and the states that have medicalized or decriminalized marijuana have lower such traffic incidents for same time period. It would appear that marijuana smoking is a PROTECTIVE factor against traffic accidents. Research also bears out that stoned drivers tend to allow more distance behind vehicles, and drive somewhat slower, which are both recommendations included in the Defensive Driving Course endorsed by insurance companies. I rest my case.

  6. Probably attributable to the theory that where marijuana is less accessible, people will consume more alcohol.

  7. This seems like a good time to do such a comparison on Michigan’s driving statistics since 2008. I’ll bet there’s actually a decrease in accidents and fatalities, that is, assuming that marijuana consumption has actually increased, as opposed to just being legitimized.

  8. Michigan law will punish “regardless of whether or not they are behaviorally impaired by the substance”

    How incredibly stupid can they be? Being behaviorally impaired should be the only thing that matters! This is just another perfect example of completely inept leadership!

  9. Why drink and drive when you can smoke and fly. I dont see much hope for this country anymore.. Special interest groups aka the government have way too much power and influence.

  10. So they actually have a legal framework set up such that you can get a doctor’s prescription to have more than the usual allowed amount of drug in your system when you drive.

    This makes no sense, but it’s sadly a step forward.

  11. A valid, logical ruling by the MI Supreme court; I won’t say that surprises me as courts more often than not are not politically motivated. This is progress. Zero tolerance is not.

    While politicians seek out new zero tolerance laws as they embrace the “Just Say No” mentality, here are some new ideas:

    Smoking tobacco while driving – “those damn ashes in the lap!”

    Holding hands with your partner.

    Pets in the car.

    Listening to the radio.

    Texting, of course.

    Talking while driving.

    Eating/drinking beverages while driving.

    Distracted by the patrol car watching you or that cute babe or handsome driver in the car you’re passing.

    Driving when late to work or an appointment.

    I mean having cannabis metabolites in your blood/urine – that’s dangerous?! Our own brains produce cannabinoid related chemicals – so if you have a brain, the zero tolerance truth would be – don’t drive!

  12. The issue is the “Per se law” which really only adds up to a “Heresey law”. Someone said you’re drunk, so you are. No real test required as we just pretend pot is alcohol and use the alcohol test instead. And the test works for alcohol since alcohol does impair a person by concentration in the blood–but not marijuana which only modifies one’s behavior and is not impairment.

    Is this just childishness codified into law? This is how kids talk to each other while play “pretend-whatever”. The cops pretend you’re drunk, but give you a real arrest and ticket. Nice fucking law 🙁

  13. Yup here we go again with thousands of pages of run around laws that all point back to you being guilty U N L E S S the wind is blowing from the East and you just farted and are drinking a big gulp while holding a new Obama phone and reading a text while not wearing a seatbelt and your keys must be in the pocket of the guy in the back seat wearing a yellow polo shirt inside out … IF all those things occur, PER SE, you are not guilty of suspicion of driving with THC in your hair folicles from a joint you smoked 3 years ago at the VanHalen reunion concert.

    My head is about to explode, PER SE.

  14. Thanks Dave Evans:
    The issue is the “Per se law” which really only adds up to a “Heresey law”.

    That helps explain, though you misspelled heresy, which, per se, might mean you’re impaired, lol.

    I too sigh heavily when cannabis use is equated with alcohol use. There’s no comparison, and it only makes the US legal system look like “the Twelve Monkeys”, wherein the real problems have nothing to do with monkeys or let alone 12 of them.

    While the elite branch of the federal government that we tax payers support called the NIH (National Institute of Health) dedicates our taxes towards “negative only research on cannabis”, the majority of our elected officials dedicate our time on “negative only” interpretations of what cannabis decriminalization represents.

    Per se, cannabis, aka marijuana is legalized rape, murder, and terrorism at it’s worst. And the laws in this country, the drug testing and racial profiling confirms that notion.

    FUNNYSTONERS says “his heads about to explode”, given the “thousands more pages of run around laws”, and so is mine.

    Per se, growing cannabis is a manufacturing process, as an example. I’m hardly religious, but in a country that “Trusts in God”, please, I did not manufacture cannabis seeds; God did!

    The whole of laws prohibiting cannabis are a “Witch Hunt” one million time worse then the the witch-hunts in the 17th century.

    When will this madness end??? Arresting American citizens and subjected those who choose to use cannabis which grows freely from the earth is a violation of the first, fourth and other amendments of the US Constitution.

    Any politician that supports cannabis prohibition and the related unconstitutional laws targeting those who wish to smoke or eat the plant are those who should be seriously examined for mental illness or maybe they are simply under-educated.

    Cannabis is not alcohol anymore than an apple is an orange. Drugs are manufactured, cannabis is not. That cannabis cannot be grown or consumed in one’s home is so obviously a violation of human rights as to ask, why am I supposed to be proud to be an American citizen? Why should I embrace the passion of our Founding Fathers who risked their life securing the US Constitution?

    That cannabis prohibition began as a tax should answer that question. History repeats itself and cannabis prohibition is none other than the King depriving his citizens of their human rights.

    Yes, my head is exploding too. Please, Stop the Hurt and end this fucking insane WAR! Now.

  15. Need more scientific studies similar to how the authorities came to the numbers involved in alcohol comsumption and its impairment. A zero tolerance mirrors the ignorant past because alcohol research proved impairment is not instant upon consumption. They just want another reason for the public to demonize a plant and criminalize its consumption. Living the lies

  16. my boyfriend was pulled over for ‘swerving’ jan2012, was not smoking but had under the legal amount and his medical that he showed the cops. they took him in for a blood test and was let go pending lab results. 7 months later they put a warrant out for his arrest. june 28 he was sentenced to 9 months in jail because it was his 3rd driving under the influence. from reading the new laws is there a way to reverse this sentence because i feel that what he was doing was not illegal.
    any suggestions would help! thanks

  17. Your all idiots!!! I don’t smoke it and don’t care who does, just stay off the damn roads. If your in that much pain that you need to smoke it, then you need to be on disability and STAY home.

  18. don’t buy that exempt if you have your card and Michigan law that’s BS I’m being charged for a DUI with only four or five nanograms in my blood or less

  19. I was pulled over also got a blood test had 490 grams of marijuana and my blood and they are wanting to give me a DUI!! . I have kids and I am already on disability for multiple back surgeries didn’t think I would ever walk again 2 years ago only smoke 2-3 times a month maybe the bad thing is I know it had been at least two weeks before I last smoked and they’re charging me and a wind at Michigan

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