Marijuana, Driving and THC

In Michigan, adults over 21 years of age can legally use Marijuana pursuant to the passage of the Michigan Regulation and Taxation of Marihuana Act (MRTMA). You can also use Marijuana if you have a Michigan Medical Marihuana Act card (MMMA).

Now the issue is, can you drive a motor vehicle in Michigan with THC in your system? As with all things Marijuana in Michigan, it gets complicated.

Let’s go to our example. You are driving and are stopped for speeding. We will agree you were, in fact, speeding and the police officer observed it. We will also agree that the officer saw nothing else wrong with your driving. The officer did not observe any of the 24 Visual Detection Clues the National Highway Traffic Safety Administration (“NHTSA”) lists as clues to impaired driving.

You have your license, registration, and proof of insurance but the officer can smell the “odor of burnt Marijuana.” Can you, at that point, be arrested? No. Speeding is a civil infraction and the “odor of burnt Marijuana” is not a crime. But the officer asks you to step out of the vehicle anyway. You step out and he asks you to complete Standard Field Sobriety Tests (“SFSTs”). As I have previously discussed, these roadside tests are only valid for alcohol consumption. These tests should not be admitted in a case involving Marijuana use and driving.

In Michigan, there is certification for police officers to detect drug use. Those officers are certified as Advanced Roadside Impaired Driving Enforcement (ARIDE). This is a 16 hour course in which the officer is trained to look for clues of drug use in seven drug categories. The second certification is Drug Recognition Expert (“DRE”). These officers go through a 12 step process to determine if the driver is under the influence of a controlled substance. If SFSTs actually revealed drug use, there would be no need for ARIDE and DRE certifications.

Now, you step out to do SFSTs and the officer determines you have failed some or all of the SFSTs and arrests you. Many times the officer will fill out a search warrant asking a District Court Judge or Magistrate to approve taking a blood sample from you. Here is what they put in the search warrant:
1. You were speeding;
2. The officer could smell “burnt Marijuana”; and
3. You failed SFSTs.

This application for a search warrant should be rejected by every Judge it is given to. Speeding is not one of the 24 Visual Detection Clues taught by the NHTSA. Burnt Marijuana is not a crime. SFSTs are not validated for Marijuana. The police officer should have called in an ARIDE certified officer or a DRE certified officer.

But, as usual, the Judge signs the search warrant and the take your blood. Now comes the good part, here is your lab report:

What does this mean?

First of all the THC-COOH 53 ng/mL should never appear in court or be given to a Jury. THC-COOH is commonly referred to as “carboxy THC.” This is a THC metabolite. It is the byproduct of the body breaking down, using, or metabolizing a drug. It is what is left over after your body uses or breaks down the THC in Marijuana. THC-COOH is not a controlled substance. The Delta-9 THC cannabinoid is the “psychoactive” cannabinoid that gets you “stoned.” THC-COOH has no psychoactive effect and will not get you stoned.

So, if that is true, it is not a controlled substance, and has no psychoactive effect, why is it in a lab report? To make you look bad. Full stop. They could just as easily put your Zinc level in this lab report and it would mean the same thing – nothing. Having THC-COOH in your system is not a crime. But, it gives police, prosecutors and Judges a number to look at and conclude you used Marijuana. Again, the use of Marijuana in Michigan for those adults over 21 is not a crime. So, THC-COOH should never be given to a Jury. It means nothing as to the charges you face, which is active THC in your system, and that it impaired your ability to drive.

In Michigan, there is no set threshold amount of THC in your system to determine driving impairment. In Michigan, you are presumed under the influence of alcohol if your blood alcohol level is .08 BAC or above. In March of 2019, the Michigan Impaired Driving Commission recommended no threshold minimum be set (i.e., 4 ng/mL) to determine impairment by THC.

So, with no set minimum threshold, what does 9 ng/mL mean?

Well, let’s look at “mL.” This is a milliliter. It is one-thousandth of a liter. So they are measuring your blood not by liters, which is what a hospital does, but rather taking a liter of blood and breaking it down to 1,000 equal parts and measuring the amount of THC in that. They then look at how many nanograms (“ng”) of that substance is in one one-thousandth of a liter. Now wait for it…How much is a nanogram? One billionth of a gram. Yes, take one one-thousandth of a liter of blood and measure a substance according to a billionth of a gram, or more simply a nanogram is .000000001 of a gram. So 9 ng equals .000000009 grams per one one-thousandth of a liter. A pretty minuscule amount.

Why doesn’t a lab report just say that? Because they do not want you to know how small the amount of THC really is in your system. 9 sounds way bigger than .000000009.

If this happens to you, understand the following: Speeding is not a clue for impaired driving per the NHTSA; the smell of “burnt Marijuana” is not a crime; SFSTs have nothing to do with impaired driving for THC; roadside tests should be done by an officer certified for ARIDE or DRE and the lab test results are reports to show 9 ng rather than .000000009 grams of THC to make it easier to convict you.

If you have a criminal case in Calhoun County, Lenawee County, Hillsdale County, Washtenaw County, Jackson County, or Ingham County, contact Mr. Brandt about your case.

The information on this website is for informational purposes only. Nothing in this blog should be taken as legal advice for an individual case. This information is not intended to form an attorney-client relationship.

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