Drugged Driving: Michigan Supreme Overturns Itself on Marijuana Metabolites Issue

The Michigan Supreme Court Tuesday ruled that it is not illegal to drive while having marijuana metabolites in the body, reversing a 2006 decision by a more conservative version of the court. Marijuana metabolites are not a controlled substance under state law, and their mere presence thus cannot be the basis of a conviction under the state's drugged driving law, the court held.

The ruling came in People v. Feezel, in which the court overturned the conviction of a driver in the death of a severely drunk pedestrian walking in the middle of a five-lane road at night. The driver, George Feezel, was himself borderline intoxicated on alcohol, blowing a 0.009, and also tested positive for marijuana metabolites, which can linger in the system for days or weeks after the pot high is gone. Feezle was found not guilty of drunk driving causing a death, but convicted of second-offense drunk driving (a misdemeanor in Michigan), leaving the scene of a fatal accident, and driving under the influence of marijuana -- although there was no testimony to the effect that he had used marijuana that evening and there was testimony to the contrary.

The court ruled that a Washtenaw County jury should have been allowed to hear evidence the victim was drunk, remanding the case back to circuit court. But in ruling that marijuana metabolites are not a controlled substance, the court invalidated what was in effect a per se zero tolerance drugged driving law that allowed for people to be convicted of driving while impaired when they were not actually shown to be impaired.

"We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 [controlled substances act] and, therefore, a person cannot be prosecuted under MCL 257.625(8) [drugged driving act] for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system," read the opinion.

The opinion, largely a demolition of the previous Supreme Court's 2006 ruling in People v. Derror that marijuana metabolites are a controlled substance, thus allowing for drugged driving convictions based solely on their presence, noted that Michigan is now a medical marijuana state and that allowing Derror to stand would unfairly impact medical marijuana patients.

Under Derror, Justice Corrigan wrote for the majority, "Individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person's blood for 18 hours and in a person's urine for up to 4 weeks."

It's not just about medical marijuana patients, the opinion suggested: "Thus, under Derror, an individual who only has 11-carboxy-THC in his or her system is prohibited from driving and, at the whim of police and prosecutors, can be criminally responsible for choosing to do so even if the person has a minuscule amount of the substance in his or her system. Therefore, the Derror majority's interpretation of the statute defies practicable workability given its tremendous potential for arbitrary and discriminatory enforcement."

It is neither fair nor just nor in the interest of public safety to charge people with drugged driving who aren't impaired. Finally, there is a Michigan Supreme Court that recognizes this.