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In The News

Friday, September 14, 2018

East Lansing, Meridian Township and Lansing OWI or Drunk Driving - not Your Father's DUI Anymore

By Michael Nichols
Categories: Drugged Driving

The question that is asked so frequently: what is the legal "cut-off" for having too much marijuana in your system to drive a car? It is a complicated answer. Let us start with the easier part - in Michigan the answer is "zero." The law in Michigan at MCL 257.625(8) says that "any presence" of a schedule I controlled substance is illegal in your blood while you are operating a motor vehicle. You heard correctly: zip, zilch, nada.

Some people might think that is just fine. Here is why they are wrong. One can smoke THC, eat it or otherwise ingest it and it will potentially hang around much longer than a shot of whiskey or a beer. The basic reason is the pharmacology of THC.

Remember, THC is the active component of marijuana. It is Tetrahydrocannabinol. This pharmacologically active compound is what makes a person feel "high" or "stoned" as some might call it. THC interacts with your body much differently than alcohol. It is lipophilic, which means it loves the fat cells in our body. That is where it dissolves.

Once a drug starts to break down, the effect of the drug begins to break down and for THC that break down happens quickly. So the high will start to wear off while the drug stays in your body. Consider this scenario: person takes in some THC at 11 pm the night before he goes to work, he gets up the next day and has a fender bender that is not his fault. The responding officer asks "when was the last time you used marijuana?" Honest answer yields an arrest, which yields a blood test which shows THC on board in a small amount. GUILTY! Fair?

Even if Michigan legalizes marijuana, there is nothing in the ballot language that would re-classify marijuana from a schedule I controlled substance. Therefore, even if you use a legal substance in a legal manner, if you have a mishap on the road a day or even 2 days after using, you get a conviction on your record. Oh yeah, let us remember that a conviction under 257.625 is a lifetime conviction and cannot be expunged.

The reality as it relates to the THC measurement is that the Michigan State Police lab will analyze your blood (after altering it to make it resolve more effectively in the instrumentation). The MSP lab has several table top size mass spectrometers. The lab administratively "set" a cut-off for reporting the presence of the drug at 1, yes that is right, 1 ng/mL. That is an incredibly small amount - half a teaspoon of sugar in an olympic-sized pool. Consider, too, that the lab never validated its instrumentation at 1 ng/mL so it is declaring that it can play a football game without showing us how it set up the field of play.

Further, the prosecutor's association, who is in the ear of the legislature every day (almost) do NOT want a per se level. If they do - they want a very small per se level such as 2 ng/mL. They do not want 5 ng/mL like some other states have done. I am not terribly sure why, but after hearing representatives of the prosecutor's association speak a few times, my guess is that they are surveying from the MSP Lab the number of times that it analyzed blood for THC and they are studying the data for the most frequently reported values.

I am willing to bet that most every one of them is below 5 ng/mL. Remember when we had pending legislation from State Representative Klint Kesto to create a per se level of 5 ng/mL? So much for that idea - we have not heard even the word "boo" about it and it is probably because the lobbyist from the Prosecuting Attorneys Association of Michigan (PAAM) has said "uh uh."

Food for thought when you consider what is to come in Michigan when and if marijuana is legalized.

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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.