If you smoke a joint Friday
night and drive to work bright-eyed and bushy-tailed Monday morning in
Michigan, you can be arrested, charged, and convicted as a drugged driver
because inactive chemical traces of THC, or metabolites, remain in your
bloodstream. The Michigan Supreme Court ruled Wednesday that motorists
can be convicted of Driving Under the Influence of Drugs (DUID) even if
they are not under the influence of drugs. According to the Supreme
Court opinion in the consolidated
cases Derror v. Michigan and Kurts v. Michigan authored by Justice
Maura Corrigan, actual innocence of driving while impaired is "irrelevant."
In both cases, authorities
charged the defendants under the Michigan DUID law based on the presence
of cannabis metabolites, an inert byproduct of the body's breakdown of
THC, in their blood. The presence of metabolites does not indicate
impairment or being "under the influence"; it only indicates that someone
ingested THC at some time in the past, as the state Supreme Court acknowledged
in its ruling. Both trial courts held that the metabolite was not
"marijuana" and thus a controlled substance under state law, a position
upheld on appeal.
Both a majority on the Supreme
Court disagreed. Neither the DUID nor the controlled substances law
"requires that a substance have pharmacological properties to constitute
a schedule I controlled substance," the majority held. Neither does
the DUID law "require that a defendant be impaired while driving.
Rather, it punishes for the operation of a motor vehicle with any amount
of schedule I controlled substance in the body."
Then, breathtakingly, Justice
Corrigan wrote, "It is irrelevant that a person who is no longer 'under
the influence' of marijuana could be prosecuted under the statute.
If the Legislature had intended to prosecute only people who were under
the influence while driving, it could have written the statute accordingly."
Now, any Michigan driver
who has smoked marijuana in the last few days or, in the case of heavier
smokers, up to three or four weeks, is subject to a DUID arrest based on
the presence of inert leftover metabolites that do not actually indicate
impairment. In a harsh dissent, Justice Michael Cavanaugh warned
the court it would criminalize a huge class of people.
"Today's holding now makes
criminals out of numerous Michigan citizens who, before today, were considered
law-abiding, productive members of our community," he wrote. "Now,
if a person has ever actively or passively ingested marijuana and drives,
he is [unknowingly] breaking the law, because if any amount of [cannabis
metabolites] can be detected -- no matter when [the marijuana] was previously
ingested -- he is committing a crime. The majority's interpretation,
which has no rational relationship to the Legislature's genuine concerns
about operating a motor vehicle while impaired, violates the United States
Constitution and the Michigan Constitution."
The ruling could have an
impact beyond Michigan. Twelve other states have enacted laws making
it a criminal offense to drive under the influence of drugs. They
use standards similar to those upheld this week -- the presence of trace
levels of drugs or metabolites -- to assume impairment. Unlike drunk
driving laws, which assume a certain blood alcohol level after which one
is considered impaired, the DUID laws assume that the presence of any metabolite
or trace proves impairment.
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