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Are you too high to drive? That'll depend on where you get pulled over

Some states have set a measurable level for marijuana, but Michigan has not.
Credit: CHRISTOPHER WALKER/TIMES RECORD NEWS
Traffic stop.

LANSING — How do you know if you’re too high to drive?

The short answer: You don’t.

Michigan has a zero tolerance law for drivers with certain narcotics in their system, such as cocaine, marijuana and heroin. That hasn't changed with the legalization of recreational marijuana.

Or maybe it has, depending on who you ask.

Unlike drunk driving, which has a 0.08 threshold for blood alcohol content, Michigan’s new recreational pot law doesn’t specify what qualifies as too high to drive. Some states have set a measurable level for marijuana, but Michigan has not.

That poses problems for prosecutors, who are interpreting drugged driving laws differently. Some say evidence of driving infractions – weaving around the road, running a red light or getting in a crash – is needed to file an operating while intoxicated charge. Others say any evidence in a blood test of tetrahydrocannabinol or THC, the active ingredient in cannabis, is enough.

That means getting charged will depend on where a driver gets pulled over.

Arrests for driving after using marijuana have not been widespread. Records obtained by the State Journal show just 3% of OWI charges in Ingham County's two largest district courts involved marijuana.

However, states that have legalized recreational marijuana have seen a sharp spike in driving-related arrests. In Washington, fatal crashes involving drivers who recently had used marijuana doubled after the law passed, according to an AAA study.

Recreational marijuana has been legal in Michigan for about a week, but prosecutors already say they see flaws in how the law is written.

“There’s so many things we don’t know what it’ll look like,” Ingham County Prosecutor Carol Siemon said.

Prosecutor discretion?

Siemon said the way the recreational marijuana proposal was written leaves more questions than answers. Like the state's original medical marijuana law that was approved by voters in 2008, holes that normally would have been patched up during the legislative process were left gaping.

For driving purposes, the law remains zero tolerance, and will stay that way until legislators decide to change it, Sen. Rick Jones, R-Grand Ledge, said.

Jones, who also served as Eaton County’s sheriff before becoming a lawmaker, anticipates that legislators will ask for a study to help decide how much THC, if any, should be allowed in someone’s system as they drive.

“I suspect there will eventually be a change,” Jones said. “At this time, it absolutely is zero tolerance and you can go to jail for any amount of marijuana in your blood stream.”

Yet interviews with nine area prosecutors showed different thoughts about whether a small trace of THC in the system would result in charges.

Siemon, along with Eaton County Assistant Prosecuting Attorney Chris Anderson, said prosecutors have discretion on whether to charge or not. Others, like Ionia and Calhoun county prosecutors Kyle Butler and David Gilbert, said police will be required to prove bad driving to get a conviction.

Barry County Prosecutor Julie Nakfoor-Pratt said she will keep prosecuting as the law stands now – a zero tolerance for marijuana in the system – and reevaluate later. In Clinton County, Prosecutor Chuck Sherman said he was not “100% sure” how things will work.

And prosecutors aren't alone making decisions. Police have discretion in pursuing charges, as do judges in issuing warrants and in sentencing.

Such confusion is why Siemon hopes a legislative committee or focus group will clarify the statute.

“You have one law, it’s just really different, just based on policies in the community,” Siemon said.

And Butler, the Ionia County prosecutor, had another perspective. He said because the new law prohibits operating a vehicle “while under the influence of marijuana,” that overrules the zero-tolerance law. The recreational marijuana law doesn’t say “with any presence of marijuana.” It says under the influence.

It’s a small distinction, but one that can make a difference, Butler said.

“The coalition completely pulled the wool over voters’ eyes,” Butler said. “They wanted to say, ‘hey treat this like alcohol,’ but that’s false. As far as coming up with a .08 equivalent, they don’t have that in (the proposal). They conveniently left that out.”

A look at the difference between drunk and drugged driving. Anthony Borrelli / Staff video

Butler firmly believes that to fairly prosecute someone for an OWI now, prosecutors must prove a driver was under the influence of marijuana and that their ability to drive was “substantially lessened.”

Ingham County Assistant Prosecuting Attorney Joel Martinez said ultimately, he expects to start treating all marijuana-involved OWI cases the way the county handles OWI when medical marijuana is involved – by requiring proof of impairment and bad driving.

Yet “bad driving” doesn’t mean much, Kalamazoo-based defense attorney Sarissa Montague said.

“I can drive poorly and have a small amount of marijuana in my system, but that doesn’t mean my poor driving is the result of having marijuana in my system,” Montague said.

Transitioning to legal marijuana will be a learning curve for everyone in the criminal justice system, she said. She expects to see lawsuits and litigation arguing about what it means to be under the influence.

“The transition period is likely going to last for a long period of time,” Montague said. “We’re still in transition from the medical marijuana act, and that was 10 years ago.”

Proving bad driving

Even though the law doesn’t require police to prove impairment, many officers do so, Ingham County Sheriff’s Department Capt. Greg Harris said. It would be much too difficult to prosecute a case without evidence of bad driving, he said.

“We pride ourselves on doing what’s right,” Harris said. “There has to be bad driving for us to even be in contact with the person.”

A Michigan Supreme Court decision in 2013 ruled that medical marijuana card holders could not be prosecuted simply for having THC in their system. Because their use of marijuana was legal with the card, and THC metabolites can remain in the body for almost a month, the court ruled that evidence of impaired driving was needed for a conviction.

Police and prosecutors often say they want evidence of bad driving when arresting or charging someone for operating under the influence. Kara Berg, Lansing State Journal

That isn’t always the case, however. Multiple departments in the Lansing area have cases where a driver was stopped for a broken taillight or expired registration, then arrested for OWI when the officer saw or smelled marijuana.

In East Lansing, seven out of 13 OWI arrests in 2016 and 2017 did not involve bad driving.

Of those, only two ended in an OWI conviction. The rest were downgraded to reckless driving.

One of those cases involved 26-year-old Kevin Rodriguez, who was pulled over in November 2016 for not wearing a seat belt. Police saw an “extremely large amount of marijuana smoke rolling out of both front car windows” and smelled freshly burned marijuana, according to the police report.

Rodriguez told the officer he had been smoking marijuana prior to being pulled over.

That alone used to be enough to charge someone with an OWI. Police could have stopped their investigation there, Anderson, the Eaton County prosecutor, said.

“The difference now, is it’s going to require officers to spend more time, enforcement wise, and get more training in asking questions and conducting the evaluation,” Anderson said. “Just because you don’t see them weaving all over the roadway doesn’t mean they’re not intoxicated.”

In the Rodriguez case, an officer had him perform roadside sobriety tests, like walking heel-to-toe in a straight line and balancing on one foot.

Police arrested him for operating under the influence of a controlled substance, and he was later charged in East Lansing 54B District Court.

He didn’t feel too high to drive, he said.

“Driving drunk and driving high are two different things,” he said. “I was going the speed limit, I was doing everything right, he just caught me without a safety belt.”

Prosecutors dropped the OWI case, and instead allowed Rodriguez to plead guilty to careless driving. That earned him three points on his license, and he had to pay about $850 in court costs.

How other states handle it

In Colorado, Montana, Nevada and Washington, drivers with 5 nanograms or more of active THC in their system can be prosecuted for operating under the influence. Their “per se” level functions the same as the 0.08 blood alcohol measurement in Michigan, where above that amount, drivers are legally too impaired to be on the road.

But critics of the per se law have pointed out that measuring the amount of THC in the blood is not an exact science, as the chemical metabolizes differently depending on the frequency of use.

The Colorado Department of Transportation launched a campaign to stop drugged driving. Colorado was the first state to legalize recreational marijuana in 2012. Lansing State Journal

An AAA study found the threshold for per se THC laws “cannot be scientifically supported.” The study found that the THC thresholds would have classified drivers as impaired when field sobriety tests showed they were not, and vice versa.

The American Civil Liberties Union sued a Georgia police department for wrongfully arresting three people for driving while intoxicated because an officer with drug-recognition training believed they were under the influence of marijuana based on field sobriety tests. The blood tests for all three returned negative for cannabis.

Several Michigan counties are evaluating roadside tests that involve swabbing the driver’s cheek to test for active controlled substances, but it’s not clear how reliable those tests will be.

Colorado and Washington, the first two states to legalize recreational marijuana in 2012, have done much of the country’s research on driving while intoxicated. So far, no one has come up with a fool-proof way to police drugged driving.

Marijuana laws across the country

Infogram

Cases will likely increase

It’s not that common to be charged with driving under the influence of marijuana in Michigan. East Lansing Police Deputy Chief Steve Gonzalez and Harris said they expect that to change, but aren’t sure how much of an increase to anticipate.

“We’ve seen an increase in Colorado, and I’d expect to see it here,” Gonzalez said. “We’ve never had this before, where a previously banned substance is suddenly completely legalized. We’ll have to wait and see how that impacts driving behaviors.”

The Ingham County Prosecutor’s Office issued charges in 46 OWI cases involving marijuana from January 2016 to September 2018 in 54A and 55 district courts, based on records from both courts. That was only 3% of all OWI cases filed in those two courts.

54B District Court in East Lansing would not provide a list of OWI cases to the State Journal.

East Lansing police, however, provided 13 reports where marijuana was a factor in an OWI arrest in 2016 and 2017. Since 2016, Michigan State University Police have handled 18 OWI cases involving marijuana, Capt. Doug Monette said.

Still, people may be driving under the influence who aren't getting arrested or charged.

A study done by the Colorado Department of Transportation found that 40% of recreational users don’t believe marijuana impacts their ability to drive safely, while 10% thinks it makes them a better driver.

Even so, the study found that more than two-thirds of people knew driving high could lead to an OWI charge.

East Lansing attorney Mike Nichols, who handles drunk and drugged driving cases, said the zero-tolerance law is “antiquated.” It stems from when marijuana was primarily thought of as a “harmful, poisonous compound.”

The 1 ng of THC that’s enough to be illegal while driving compares to half a teaspoon of sugar distributed throughout an Olympic-sized swimming pool, Nichols said.

“It’s beyond minuscule,” he said.

Contact Kara Berg at 517-377-1113 or kberg@lsj.com. Follow her on Twitter @karaberg95.

About this report

Because no single source tracks OWI cases involving marijuana, to prepare this report the Lansing State Journal made requests for court records and used the Freedom of Information Act to make multiple requests for public records maintained by police and prosecutors.

Clerks from 54A and 55th district courts in Ingham County provided the State Journal a list of all drugged and drunk driving cases filed from 2016 to September 2018. 54B District Court in East Lansing declined to release a list of cases for the same time period.

From those lists, the Ingham County Prosecutor’s Office identified 46 cases involving marijuana.

The East Lansing Police Department provided copies of police reports for all 13 OWI cases involving marijuana for 2016 and 2017.

The State Journal also got copies of police reports for OWI involving marijuana from Michigan State Police, Ingham County Sheriff’s Office, Eaton County Sheriff’s Office, Michigan State University Police, Mason Police Department, Meridian Township Police Department, Charlotte Police Department and Bellevue Police Department.

The LSJ paid $450 for prosecutors and police to process its FOIA requests.

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