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O.W. High: How Stoned is Too Stoned to Drive?

Grewal Law PLLC

The dangers of drinking and driving are well known. Most drivers in Michigan know that the legal limit for alcohol is a 0.08% blood alcohol content (BAC) and that a BAC of 0.17% or more means that you can be charged with the offense of “Operating with a High BAC,” commonly known as a “super drunk.” While drinking and driving is and continues to be a major concern for Michigan citizens, the good news is that drinking and driving is actually on the decrease.

According to a NHTSA Roadside Survey from February 2015, only 1.5% of weekend nighttime drivers had a BAC of 0.08 or above. This is a decrease of a nearly one-third since 2007. However, the number of drivers with THC—one of the active ingredients in marijuana—and other drugs, including legal prescription drugs, is on the rise.

With medical marijuana currently being legal in Michigan and with Michigan voters poised to decide on whether to legalize recreational marijuana this November, a common question that is asked is “how much marijuana can I use before I drive or how long do I have to wait after using before I can drive?”

If you are not a medical marijuana patient, answering this question is easy. Michigan is a zero tolerance state when it comes to THC and driving. That means if you have any THC in your bloodstream you can be charged and convicted of Operating With Any Presence of a Schedule 1 Drug (commonly referred to as “OWPD”)—regardless of whether you were actually stoned. The penalties for a conviction for OWPD are identical to a conviction for Operating While Intoxicated (OWI), which is Michigan’s standard drunk driving offense for those who have a BAC of 0.08% or higher. If you are not a medical marijuana patient, the presence of any amount of THC in your blood can subject you to the same penalties as a drunk driving.

If you are a medical marijuana patient, you are not subject to Michigan’s zero tolerance rule when it comes to THC and driving. In 2013, the Michigan Supreme Court decided People v. Koon, which ruled that the Michigan Medical Marihuana Act offers protection from arrest and conviction for OWPD but does not protect those who operate a vehicle while under the influence of marijuana.

This decision largely acknowledges the fact that THC often stays in a person’s bloodstream long after the effects of the marijuana have worn off. As a result, if you are a medical marijuana patient, you cannot be convicted of a drugged driving offense just for having THC in your system; instead, the prosecutor will have to prove beyond a reasonable doubt that your ability to drive was visibly impaired or that the marijuana substantially affected your ability to operate a motor vehicle safely. This can be a very difficult burden for prosecutors to meet.

If you are a medical marijuana patient facing a drugged driving charge, you need an experienced medical marijuana attorney fighting on your side.

You should also be prepared for a fight. The prosecutor will have to prove beyond a reasonable doubt that you were stoned or that your ability to drive was visibly impaired. This very well could mean taking your case to a jury trial. If you’re a medical marijuana patient facing criminal charges, contact the medical marijuana lawyers at Grewal Law PLLC for a free consultation.


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