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Driving Under the Influence of Marijuana

Joe Poprawa

The Michigan Motor Vehicle Code (MMVC) takes a “zero tolerance” approach to driving under the influence of certain drugs, including marijuana. What this means is if you are pulled over while driving and the police officer has cause to believe you have used drugs you may be required to take a blood test for drugs. If you refuse to do this there are a number of things that will happen, most of them not good, but that is for a different discussion. If you test positive for any amount of these drugs, including marijuana, that is a violation of the MMVC and you may be cited for Operating Under the Influence of Drugs (OUID).

A conviction on this charge carries a number of potential penalties including among other things, jail, fines and suspension of your driver’s license. You may have smoked marijuana the day before and not be impaired or under the influence by its use, but the law says you are guilty if any trace of the drug is found in your system. This is troubling to many in light of the perceived loosening of attitudes on use of marijuana. Many municipalities have decriminalized personal possession and use. Possession and/or use are still illegal under Federal law, however, and until our state legislature changes it, possession and/or use are illegal under state law – unless you have a medical marijuana card. Particularly troubling from a legal standpoint is how you treat a driver who has a medical marijuana card.

Despite the fact that the voters of this state overwhelmingly approved the Michigan Medical Marijuana Act (MMMA) some of our elected officials don’t seem to want to accept the will of the electorate – but that too is for discussion at some other time. The MMMA provides immunity for among other things the use of marijuana for pain relief and other medicinal purposes by citizens of this state with serious illnesses and conditions who obtain a medical marijuana card.

The question that arises from a legal standpoint though is how do you reconcile the state’s zero-tolerance motor vehicle code with people with a medical marijuana card that are pulled over while driving and test positive for a trace amount of the drug? On the one hand they can legally use marijuana because they have their card – on the other hand it is zero-tolerance for driving purposes.

Initially, the approach was everyone was treated the same.Any amount of marijuana in a person’s system, regardless if you had a card or not, was a violation and people were charged and convicted of OUID under the Motor Vehicle Code. Finally, in 2013 the Michigan Supreme Court addressed this anomaly by focusing on the MMMA rather than the Motor Vehicle Code. The Court found the Motor Vehicle Code’s zero tolerance provision to be inconsistent with the MMMA. While the MMMA, however, grants immunity from prosecution for those covered by the Act, it does not protect card-holders from “operating a motor vehicle, aircraft or motorboat while under the influence”. Unfortunately the MMMA doesn’t define what “under the influence”means.

The Court concluded that the Act contemplates something more than having any amount of marijuana in the system and that it must have some effect on that person – the person’s driving must be impaired by the use of marijuana. Therefore, the Court concluded before a person holding a MMMA card can be convicted of OUID it must be proven that they were “under the influence” – in other words their driving was impaired by the use of marijuana.

In my opinion, which is shared by many, the MMMA is poorly written. It has been suggested that it establish measurements of the amount of marijuana in one’s system which would be considered being “under the influence”. Some states have already done this and it is similar to the procedure for unacceptable alcohol levels in our Motor Vehicle Code.

There are obvious question marks in that approach but it may be a start. Until then, while it is illegal for those who are not medical marijuana card holders to have any trace amount of marijuana in the system while driving, it is still up in the air about what constitutes operating “under the influence” for those who have medical marijuana cards.

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