Driving Under the Influence of Marijuana Prosecutions Based Upon Unreliable Evidence

hmed_marijuana_1106Due to the rise in the use of marijuana all over the country, including the state of Michigan, police are now being trained to investigate driving under the influence of marijuana and other drugs. It is the new craze in law enforcement but, because it is not as easy to detect and identify as alcohol, false arrests and prosecutions are much more common. Law enforcement incorrectly believes that identifying persons intoxicated from drugs is the same as alcohol. They are completely wrong.

Marijuana is a schedule one controlled substance, like ecstasy and MDMA. Michigan law prohibits a person to operate a motor vehicle with any amount of a schedule one controlled substance in their body.  It is referred to as a zero tolerance law. That means if a chemical test reveals the presence of any amount of the active amount of any schedule one, or two drug in a driver’s blood he is guilty of operating under the influence of drugs (OUID). There is zero tolerance for any active amount contained in a person’s body. The penalties are the same as Operating Under the Influence of Alcohol OWI DUI or otherwise known as drunk driving.

There is an exception for drivers that possess a current and valid Michigan Medical Marijuana Card. For those medical marijuana patients the zero tolerance law does not apply as it relates to marijuana. Instead prosecutors must prove intoxication from the use of marijuana which requires much more evidence.

Police are also suspicious of drivers under the influence of other drugs such as Vicodin (hydrocodone and acetaminophen), Valium (diazepam) and Xanax (alprazolam) all of which are not Schedule One drugs. Therefore if a driver is found with any of these drugs in their system the prosecution must prove intoxication which means that the defendant’s mental or physical condition was significantly affected and the driver was no longer able to operate a vehicle in a normal manner.concept of driver sober

Local police agencies are engaging in new instruction called drug recognition expert training (DRE). The DRE training is designed to teach an officer to detect and identify drug impaired driving through the investigation of human physiological factors.

DRE officers are trained to examine a driver’s eyes, vital signs, muscle tones, toxicological tests, along with psychophysical tests and a subject interview to be able to identify specific drug symptoms, identify a particular drug the subject has been taking and make a determination as to whether the drug has caused intoxication that has significantly affected a driver’s ability to operate a motor vehicle.

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This DRE training is not scientifically valid or reliable.  The officers lack the medical and scientific expertise necessary to properly and accurately diagnosis medical symptoms that form the basis of their observations and conclusions. Even assuming an accurate diagnosis, the opinion that a particular drug has caused impairment is not advisable by the medical community because the principles of pharmacology, the nervous system and human physiology are not properly being considered. These principles are very complex and require years of specific education and practical experience. In contrast DRE officers are provided only 72 hours of education and classes over the course of 9 days. During this time DRE officers fail to learn many principles that are critically important to truly have the ability to accurately identify drug intoxicated drivers.

Every person’s level of impairment from the ingestion of a drug depends widely upon several factors which include dosage, route of ingestion, length of time taking the drug, interaction with other drugs, knowledge of other drugs taken, drug potency, gender, body mass, age and genetic makeup which includes ethnicity.  Further, one of the most important pieces of information needed to interpret the value of a drug is a complete subject medical history evaluation. These factors nor the medical history evaluation are not part of a DRE investigation.

Officers trained in attempting to identify drugged drivers simply will never be properly qualified to effectively do so unless they have medical, scientific and pharmacological training and experience. None of them do. Further, the entire basis upon which the DRE field is based has not been accepted by the relevant field of science and therefore simply unreliable and should never be allowed to present this evidence to a jury.

A good DUI/OWI attorney must always challenge any evidence of this nature. If not challenged every time, courts will start to believe that it is acceptable evidence and drivers will be subjected to what amounts to severely untrained, and unqualified evaluations of a driver leading to biased and unreliable opinions. These opinions can lead to an unsubstantiated drunk driving conviction, the possibility of jail and all of the life consequences a DUI can have upon someone’s record.

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The attorneys at the Law Office of Barton Morris are drug DUI OWI specialists who will challenge every drugged driver case and expose these unqualified police “Drug Experts” as nothing more than educated guesses which should never amount to evidence admissible in the court of law.

Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 19 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.

Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.

Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013 & 2014 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2017 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”

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January 21st, 2014|