CANNABIS METABOLITE IS NOT A MI-CONTROLLED SUBSTANCE

The Michigan Supreme Court issued a landmark opinion June 8 that
11-carboxy-THC, a byproduct of THC, is not a schedule 1 controlled
substance under state law.

People v Feezel* reversed the Court of Appeals, vacated the
convictions, and sent the case back to the trial court by overturning
the 2006 Derror ruling.

Feezel was charged with driving a motor vehicle that struck and
killed an intoxicated person walking down the middle of a street in
Ann Arbor, MI on a dark and rainy night. He was convicted at a trial
where other drivers testified that only moments earlier they had
driven by and almost hit the victim. Feezel's blood was examined and
the lab reports admitted at trial. Per the Derror decision, Feezel's
jury had been instructed that any amount of even a metabolite
byproduct was sufficient evidence of impairment.

The new ruling has caused a sea change in cannabis DUI cases in
Michigan. It may prevent convictions for driving under the influence
when only byproduct is present. Active THC in a driver's blood is
still sufficient evidence for a conviction, except for those with a
Michigan medical-use card, or its equivalent from another state or district.

For patients charged with DUI in which active THC is present in
driver blood samples from shortly after a traffic stop, there is no
set amount of THC that automatically proves a patient was "under the
influence" or their ability to operate a vehicle, airplane or
motorboat impaired.

This may well result in a battle of experts, where both sides will
list and call expert toxicologists to testify about the amount of THC
in the blood sample that proves impairment by use of cannabis. The
data on this is nearly non-existent, and in the absence of new,
double-blind studies finding clear impairment, a prosecutor may have
substantial issues proving this essential element of a case.

In the meantime, an operator of a motor vehicle is not allowed to
smoke while driving (although the law does not address vaporization
or medibles).

At some point, the legislature may set a presumptive level of
intoxication. In the meantime, the best evidence in cases may be
recordings of driving and traffic stops and any field sobriety tests
at the scene. Of the three roadside sobriety tests approved by the
NHTSA (National Highway Traffic Safety Admin.), one (the nystagmus
gaze test) is specific for alcohol, and of no use in cannabis cases.

* See coa.courts.mi.gov/documents/OPINIONS/FINAL/
SCT/20100608_S138031_71_feezel-op.pdf