Pubdate: Wed, 29 May 2013
Source: Metro Times (Detroit, MI)
Column: Higher Ground
Copyright: 2013 C.E.G.W./Times-Shamrock
Contact:  http://www.metrotimes.com
Details: http://www.mapinc.org/media/1381
Author: Larry Gabriel

STATE HIGH COURT REAFFIRMS MEDICAL SHIELD

LAST WEEK, the Michigan Supreme Court ruled that the Michigan Medical 
Marihuana Act (MMMA) protects registered patients while driving with 
THC in their bloodstreams, although it left open the possibility of 
prosecution for impaired driving.

In the case of People v. Koon, the court ruled unanimously (and 
without oral argument):

"This case requires us to decide whether the MMMA's protection 
supersedes the Michigan Vehicle Code's prohibition and allows a 
registered patient to drive when he or she has indications of 
marijuana in his or her system, but is not otherwise under the 
influence of marijuana. We conclude that it does."

The case originated in Grand Traverse County in 2010 when defendant 
Rodney Koon was stopped for speeding. The police report states that 
Koon voluntarily produced a pipe, acknowledged he was a medical 
marijuana patient and admitted to having smoked several hours earlier.

A blood test verified the presence of THC in his blood and he was 
charged with operating a motor vehicle with the presence of a 
schedule 1 controlled substance in his body. Under Michigan's Zero 
Tolerance Law, the statute provides that driving with any amount of 
THC in your blood is illegal. The local court ruled in Koon's favor 
but subsequent appeals by prosecutors ruled against him.

The Supreme Court didn't even bother to take up the appeal from 
Koon's lawyer. It just struck down the Court of Appeals ruling as out 
of hand. This is a big win for medical marijuana supporters. Some 
prosecutors had derived the strategy that since Michigan law says it 
is illegal to drive with any amount of THC in your system, it is 
possible to prosecute drivers even if they are registered patients 
and don't exhibit any signs of intoxication. But the state high court 
ruling reads:

"While we need not set exact parameters of when a person is 'under 
the influence' we conclude that it contemplates something more than 
having any amount of marijuana in one's system and requires some 
effect on the person."

This means that prosecutors have to establish that a driver was 
"impaired" rather than just having "internal possession" of 
marijuana. Furthermore, the court called on the Legislature to define 
what is defined as legally impaired:

"As the Legislature contemplates amendments to the MMMA, and to the 
extent it wishes to clarify the specific circumstances under which a 
registered patient is per se "under the influence" of marijuana, it 
might consider adopting a "legal limit," like that applicable to 
alcohol, establishing when a registered patient is outside the MMMA's 
protection."

A recent FOX News telephone poll found that 85 percent of Americans 
believe medical marijuana should be legal. As marijuana is 
step-by-step legalized across the country, medical or otherwise, 
states are struggling with all kinds of issues about how to handle it.

One of the most contentious issues is how to determine what level of 
THC in a driver's blood indicates impairment - presupposing that 
impairment can even be determined in that way.

In Colorado, where voters legalized marijuana last November, the 
legislature recently passed a law setting five nanograms of THC per 
milliliter of blood or higher a sufficient cause to ticket a person 
for impaired driving. However, drivers can defend themselves by 
arguing they were not too impaired to drive. Pro-marijuana activists 
who believe a "per se" THC blood level is not an accurate or 
definitive indicator of impairment for drivers generally support this 
line of thought.

"Law enforcement has a number of tools at their disposal to identify 
drivers who may be under the influence of alcohol or drugs," says 
Paul Armentano, deputy director of the National Organization for the 
Reform of Marijuana Laws, who testifies as an expert witness in legal 
cases on the science of marijuana. "In my opinion, there is an 
overreliance in criminal prosecutions on the presence or quantity of 
THC in the blood. There is an assumption that when THC is present in 
the blood at a certain level that one can definitively infer impaired 
performance. That is not the case."

Washington state has also established the 5 ng/ml level, and there 
has been talk in the Michigan Legislature about establishing the same 
standard. But Armentano and others say that numerous other things 
should be taken into account, such as the officer's report, the 
suspect's behavior at the scene, the driving behavior that resulted 
in the pull-over, drug toxicology testing, drug recognition 
evaluation and sobriety testing at the scene - like standing on one 
leg, walking and turning, the Rhomberg stationary balance test and 
other measures.

The National Highway Traffic Safety Administration seems to agree 
with them. On the NHTSA Drugs and Human Performance Facts Sheets, it 
reads, "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 ..."

In addition, there are studies showing that "experienced" marijuana 
users are better drivers after having smoked marijuana than newbies. 
Marijuana smokers tend to be conscious that they are high and 
compensate by driving more slowly, as opposed to alcohol drinkers who 
tend to not realize they are drunk and have few inhibitions about 
their driving behavior.

One study, published in the journal Psychopharmacology in 2010, 
concluded that, "Alcohol significantly impaired critical tracking, 
divided attention, and stop-signal performance. THC generally did not 
affect task performance. ... [T]he present study generally confirms 
that heavy cannabis users develop tolerance to the impairing effects 
of THC on neurocognitive task performance."

Much more is known about alcohol intoxication than marijuana 
intoxication and a 0.08 percent blood-alcohol level is fairly 
standard for establishing impairment. But even that is in flux. There 
have been recent calls to lower that level to 0.05 percent. Whatever 
the percentage, alcohol is processed differently by our bodies than 
THC and other cannabinoids. Most alcohol is absorbed into the body 
through the small intestine and speed of intoxication is dependent on 
variables such as how much food is in the stomach and body weight.

THC binds to cannabinoid receptors in the brain. The THC blood level 
peaks in marijuana users within five to 10 minutes after smoking - it 
takes much longer when it's eaten. Generally, the level drops to 
under 5 ng/ml within a few hours. This is dependent on factors such 
as the potency of the marijuana smoked and how often the person 
smokes marijuana.

So-called chronic users may test over 5 ng/ml at all times, but these 
people are clearly not impaired the next day after having smoked the 
night before.

This subject is going to dog us for some time to come. Marijuana and 
alcohol are different substances that affect people in different 
ways, physiologically and psychologically.

If people are concerned about impairment then we should go about 
determining what that means. The state Supreme Court has given us a 
nudge in the right direction by establishing that the presence of THC 
in and of itself does not equal impairment. However, setting a per se 
level that determines impairment, as the court suggested, isn't the answer.
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MAP posted-by: Jay Bergstrom