In The News

In The News

Monday, August 27, 2018

East Lansing, Lansing and Meridian Township OWI or Drunk Driving Charges are Not Your Father's "DUI" Anymore

By Michael Nichols
Categories: Drugged Driving

This is the 3rd of 4 articles about the trends by law enforcement in prosecuting citizens for operating while intoxicated. Law enforcement is defined as both prosecutors and police for purposes of this entry. Prosecutors in Michigan are currently scratching their collective heads about the "growing" likelihood that use of marijuana is about to be legalized in the Great Lakes State.

Ingham County Sheriff Scott Wrigglesworth (retired Sheriff Gene's son) recently told a community forum that the legalization of marijuana is only going to lead to more "real" crime. Sheriff Wrigglesworth wryly compared "real" crime to marijuana possession and use as armed robbery, theft, "driving while stoned" and some other issues.

So, just what does it mean to be "driving while stoned." I recently spoke for the 3rd time in the last 3 years to Michigan judges about "drugged driving." The science does not agree on a "per se" level for an amount of THC in human blood that equates to impairment or "under the influence." Prosecutors hate the idea of going to trial without a "number" that can make things easier. Is it 5 ng/mL (nanograms per millliliter)? Is it 2? How about 25?

It seems as if the direction that prosecutors are heading is one of the lowest of the low and that is our current threshold: 1. That is right 1 nanogram/milliliter of THC. If not 1 - then 2. The speaker who represented the Prosecuting Attorneys Association of Michigan (PAAM) at the Michigan District Judges Association Conference on August 14th, stated that, based on the available research, they believe that they can correlate recent use of marijuana with blood levels as low as 1-2 ng/ML. The reason is that the data shows THC levels increasing rapidly to a spike within a few hours and then rapid elimination to a very small amount in blood.

What is wrong with that? Simple - THC remains in the blood for several hours if not days or weeks at very small levels because it is lipophilic - in other words it dissolves in fat cells and is "stored" in those cells. Example: I use THC on Monday morning - does anyone think I'm "stoned" on Tuesday? Of course not. You can bet that there is a pretty scary probability that I might have 1-3 ng/mL of THC in my blood if you analyze it on Tuesday. What about several hours later like Monday night at 7pm. Of course I am not stoned. I would be no worse at driving a car than a tired driver who got up on Tuesday morning and had no caffeine. Then there is another major concern - the way that the Michigan State Police (MSP) analyzes human blood for the presence and the amount of THC. That is coming in the next article.

Mike Nichols is author of the Michigan Drunk Driving Manual for Lawyers and is an adjunct professor at Thomas M. Cooley Law School and a frequent speaker on drunk and drugged driving issues.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.