By Paul Armentano, www.norml.org
Michigan’s state-authorized cannabis patients have legal protection from criminal prosecution for having THC in their systems while driving, the state Supreme Court ruled on May 21, 2013. In its unanimous opinion, People v Koon, the Court held that patients who comply with the Michigan Medical Marihuana Act (MMMA) may not be criminally convicted of being ‘under the influence’ (DUI) absent evidence of behavioral impairment.
Michigan’s zero tolerance traffic laws classify the operation of a vehicle with any amount of THC in one’s system to be a criminal offense — whether or not one is impaired. Under these types of traffic safety 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, if their inert metabolites (byproducts) are present in the defendants’ blood or urine. Proof of actual impairment is not a requirement for a conviction under such laws.
To the extent that it “is inconsistent with the MMMA, [the per se DUI law] does not apply to the medical use of marijuana,” the court ruled. On the other hand, if a patient is demonstrably impaired, “the prosecution may seek to convict defendant under any statute of which he was in violation, including” the DUI law. The state’s zero tolerance DUI law remains applicable to non-patients.
Ten states — Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin — impose 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 by statute from prosecution under these per se statutes unless the state can provide additional evidence of psychomotor impairment.) In May, Oklahoma lawmakers also approved zero tolerance per se legislation, House Bill 1441, criminalizing the presence of THC and its metabolites in a driver’s blood or urine. That law goes into effect on October 1, 2013.
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).
Last month, Colorado lawmakers also approved legislation, effective as of July 1, 2013, stating that the presence of THC/blood levels above 5ng/ml “gives rise to permissible inference that the defendant was under the influence.”
However, according to the United States National Highway Transportation and Safety Administration (NHTSA): “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, a 2013 academic 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.” — WestCoastLeaf.com News Service
