Can I use marijuana and drive in Michigan? Even if you are a qualifying patient with a registry identification card under the Michigan Medical Marijuana Act, you cannot operate a motor vehicle in Michigan if you are under the influence of marijuana. MCL 257.625(8). So, what does that mean?
Prior to Michigan adopting the Michigan Medical Marijuana Act on December 4, 2008, it was illegal to possess or use marijuana in Michigan for any reason. Thus, under the previous law, if a driver had any detectable amount of marijuana in the driver’s blood, the driver was guilty of operating while intoxicated, which is commonly referred to as OWI or DUI. People v Derror, 475 Mich 316; 715 NW2d 822 (2006). In other words, if a driver smoked marijuana 15 days before driving, was no longer experiencing the effects of the marijuana while driving 15 days later, but the marijuana was still detectable in the driver’s system with a blood test; the driver was guilty of operating while intoxicated.
Many criminal defense attorneys opposed this law because it involved convicting a person of operating while intoxicated even where the driver was stone sober at the time the vehicle was operated. However, there wasn’t much that could be done about it because possession of marijuana was entirely illegal at the time.
This lead to a police tactic of often skipping breath tests in drunk driving cases and opting for a blood test. The police theory was that even if the person’s alcohol level was lower than the limit of 0.08, police might get lucky and detect marijuana in the driver’s blood.
Once the Michigan Medical Marijuana Act was passed, Michigan roads were filled with drivers who were permitted to smoke marijuana but were breaking the intoxicated driving laws even when they were sober.
Two decisions from the Michigan Supreme Court, People v Feezel, 486 Mich 184; 783 NW2d 67 (2010) and People v Koon, 494 Mich 1; 832 NW2d 724 (2013), have worked together to change this law. Now, for a conviction for operating while intoxicated by marijuana, the prosecution is required to establish that a driver is actually under the influence of marijuana at the time the driver was operating the motor vehicle.
In operating-while-intoxicated cases involving alcohol, the prosecution relies on breath tests and blood tests to establish that a driver is under the influence of alcohol if the driver is over the legal limit. However, Michigan hasn’t established a legal limit for an amount of marijuana in a driver’s blood, and there are no field or laboratory tests used by police that can establish whether a driver is under the influence of marijuana. The technology exists, and probation officers, hospitals, and laboratories can quantify an amount of marijuana in a person’s blood, but it hasn’t been employed in operating-while-intoxicated cases yet because there is no legal limit like there is in alcohol cases.
So, can the police still prosecute drivers for operating while intoxicated by marijuana? Yes. Police and prosecutors rely on circumstantial evidence and confessions indicating that a driver used marijuana just before or while driving. Police will also gather evidence about a driver’s intoxication level with field sobriety tests.
Jeffrey M. Schroder, Esq.