MICHIGAN SUPREME COURT RULING MAKES IT MORE DIFFICULT TO PROVE
DRUGGED-DRIVING CASES INVOLVING MARIJUANA

A recent Michigan Supreme Court ruling makes it more difficult to
prove drugged-driving cases involving marijuana.

The high court overturned a 2006 ruling that 11-carboxy-THC -- a
long-lasting byproduct of metabolism created when the body breaks
down the psychoactive ingredient of marijuana -- is a schedule 1
controlled substance, a drug classification that includes heroin.

Now, prosecutors will have to prove drivers had the actual narcotic
or its active ingredient in their systems at the time they are
alleged to have been driving while drugged.

Previously, people could have been charged with a driving offense
involving drugs long after they had ingested or inhaled marijuana
because the metabolite remains in the body for a month after use.

Defense lawyer Jerry Engle said this means people who were convicted
since 2006 of drugged-driving based on a finding of the metabolite
should be talking to a lawyer. Their convictions could be set aside, he said.

In Jackson County, there might have been 100 such cases, he said.

Jerrold Schrotenboer, Jackson County's chief appellate attorney, is
not so sure. "I am not particularly concerned about a flood of
overturned convictions or motions," he said.

Operating with the presence of a controlled substance in the body is
a misdemeanor and people only have six months to challenge a
misdemeanor, he said.

The two lawyers argued the topic of 11-carboxy-THC before the Supreme
Court in January 2006, after which the court made the ruling it
recently overturned.

At issue were cases from Jackson and Grand Traverse counties. The
local case involved the prosecution of Dennis Kurts for driving with
marijuana in his system.

Blackman Township police in February 2004 cited Kurts, 44, of
Michigan Center after he was stopped for driving erratically. He
admitted smoking pot, but a blood test did not detect the narcotic
THC, or tetrahydrocannabinol, which is in marijuana. It did show the
presence of carboxy THC.

The most recent Supreme Court ruling stemmed from a 2005 Washtenaw
County case. George Evan Feezel was traveling on Packard Road in
Ypsilanti Township when his vehicle struck and killed pedestrian Kevin Bass.

Feezel was legally drunk and had 11-carboxy-THC in his blood. He was
charged with several offenses, including drugged driving causing death.

Based on its ruling about the metabolite, the high court vacated the
drugged-driving conviction and remanded case to the Washtenaw County
Circuit Court.

This could be considered a victory for those who use marijuana for
medical reasons, which Michigan voters legalized in 2008.

"(The Supreme Court) had to change the law, or everyone who takes
medical marijuana could not drive a car," Engle said.

Before, legal marijuana users would have to worry about being caught
with the metabolite in their bodies well beyond the time they could
feel the drug's effects.

"The threat of a sick person not being able to drive because of a
health decision was beyond the scope of reason," Joe Cain, chief
operating officer for the Michigan Medical Marijuana Association,
wrote in an e-mail. He said the law was being used as a "weapon
against the innocent."

Schrotenboer pointed out, however, the existence of the metabolite
still can be used as circumstantial evidence of drug use. Calling
11-carboxy-THC a controlled substance makes prosecution "really,
really easy," he said.

"Otherwise, it is a little bit harder."

Under the drugged-driving statute, only the presence of a drug has to
be proven, not a quantity, as is required with drunken driving.

"Hopefully prosecutors will not look for another exploit of our law,
but will try to only prosecute those who are truly impaired," Cain wrote.