MEDICAL POT CASE COULD HIT TOP COURT

Speeding Stop Led to Charge of Driving Under Influence of Drugs

TRAVERSE CITY -- Rodney Koon may have to spend $30,000 or more to
fight a misdemeanor arrest for driving a car the same day he legally
used medically prescribed marijuana.

Koon, 49, a laid-off Traverse City roofer, was stopped for speeding
Feb. 3 on Garfield Road. A Grand Traverse County deputy found a pipe
in his pocket, and Koon readily acknowledged he smoked marijuana that day.

He also showed the deputy a state certificate that allows him to use
marijuana for medical purposes.

"I was honest ... that was my mistake," said Koon, who uses marijuana
for a variety of ailments, including herniated discs in his back, a
pinched nerve in his neck, rheumatoid arthritis of the spine and
stomach problems. "I told him I had medicated six hours earlier.
After that he was all hot to bust me on a drug charge."

Koon's speeding stop sparked a legal tussle in Traverse City over
aspects of the medical marijuana law state voters approved in 2008.

Grand Traverse County authorities charged Koon with driving under the
influence of drugs because he tested positive for THC, the primary
psychoactive ingredient in marijuana. Prosecutor Alan Schneider based
his case against Koon on a law that finds a person guilty if he tests
positive for the smallest detectable amount of a controlled substance.

But two area judges disagreed. They said the Michigan Medical
Marijuana Act supersedes a state controlled substance law and ruled
Schneider must show that the legal use of medical marijuana impaired
Koon's ability to drive a car.

"Evidence of impairment is a necessary requirement," wrote 13th
Circuit Court Judge Philip Rodgers in upholding a district court
judge's decision that prevented a prosecutor in Koon's scheduled
Sept. 2 trial from inserting favorable jury instructions. The trial
was postponed.

"The (prosecutor) has not alleged ... the defendant's actions and
mannerisms at that time indicated a visible or substantial impairment
with regard to his driving," Rodgers wrote.

No Penalties for Medical Marijuana Use?

Rodgers noted the medical marijuana act states that certified users
cannot be "subject to arrest, prosecution, or penalty in any manner
. for the medical use of marijuana."

The statute goes on to state that all other laws not consistent with
the medical marijuana act do not apply. But the act also prohibits
any person from operating a motor vehicle while "under the influence"
of marijuana.

Schneider disagreed with Rodgers' ruling and plans to appeal, all the
way to the state Supreme Court, if necessary.

"To say this caveat (in the marijuana act) supersedes another state
law is highly questionable," Schneider said. "The court or the
legislature needs to clarify this, and I think we have to force the issue."

Matthew Abel, general counsel for the Michigan Chapter of the
National Organization for the Reform of Marijuana Laws, said
Schneider can parse the marijuana act's language all he wants, but
said "a caveat is still the law."

The language is clear and Schneider won't change it on appeal, he said.

"He should run for the Legislature if he wants to set policy," Abel
said. "In the meantime, he should mete out his justice with
temperance and compassion."

Koon said he's survived the housing industry collapse by working as a
handyman over the last two years. He's frustrated by what he believes
is Schneider's attempt to stop him from driving or working any time
he medicates with marijuana.

"We the people changed this law; 70 percent of the people voted for
it, and now these law enforcers want to interpret it anyway they
want," Koon said.

His attorney tells him not to worry about Schneider's appeal, and
area medical marijuana groups support him. But he'll need financial
help to maintain an appeal he's been told could hit $30,000, beyond
the $3,000 he's already spent on attorney fees.

"The stress from this affects everything I do," Koon said. "Stress
really isn't the word for it. It's totally degrading."

'Just One or Two Hits'

The incident that prompted the court case wasn't one in which Koon
simply was cruising down the road, smoking a joint, getting high.
He'd last smoked more than five hours earlier, he said.

"When you medicate you take just one or two hits," he said.

A deputy stopped Koon on his way home from a job about 6 p.m. on
Garfield Road in East Bay Township. The deputy said Koon hit 83 miles
per hour in a 55 mph zone as he passed a truck, though a speeding
ticket was not issued.

The deputy said he smelled alcohol and Koon admitted he had a beer
after work. The deputy asked Koon to step out of the car and consent
to a search because of the deputy's concern Koon might have a utility
knife or other carpentry tool, according to a sheriff's department report.

The deputy said Koon passed most impairment tests, but wrote he could
not stand on one leg for 30 seconds, and during a heel-to-toe walking
test had a gap in excess of one-half inch.

Koon said he can't stand on one foot due to his back problems. He was
arrested and a blood test came back positive for THC at 10 nanograms
per milliliter.

Abel, the pro-marijuana group's lawyer, said there's little, if any
research on THC levels and driving.

Koon's blood alcohol level was .03, well below the .08 percent level
for drunken driving, Schneider said.

Schneider said prosecutors likely will not be able to prove Koon's
use of marijuana impaired his driving. He declined to speculate if
the amount of THC in Koon's blood was too high to safely drive.

"I'm not a scientist," he said.

Schneider said the Legislature needs to come up with a level similar
to the .08 percent blood alcohol level established for drunken driving.

Abel agreed -- to an extent.

"The proper way to do that is through research and testing, not on
the backs of patients," he said.