OWI Marijuana – Driving While Intoxicated By Cannabis

DUI Marijuana Lawyer

“Driving while high or under the influence by marijuana” law in Michigan has significantly changed in Michigan in favor of marijuana users. Before recreational marijuana became legal, driving while having any detectable amount of marijuana in a person’s body was a DUI – Drugs misdemeanor. It did not matter whether the marijuana affected the driving or made someone impaired.

Active THC can stay in a person’s body as long as seven days. Therefore, most chronic marijuana users, if driving, were possibly breaking committing an OWI – Drugs misdemeanor every time they drove. If pulled over and a police officer has a reasonable suspicion the driver recently consumed marijuana, they will get arrested and their blood will be drawn and tested.

In 2013, this law changed but only with respect to medical marijuana patients. Because the Michigan medical marijuana act protected patients from internal possession of marijuana, it permitted them to use the MMMA as a defense, thereby eliminating the “any amount” rule.

Michigan now has legalized recreational adult-use marijuana and therefore has legalized the internal possession of marijuana by all persons over the age of 21. Now, the “any amount” rule applies to all adults, not just medical marijuana patients. As such, the police and prosecutors must prove a driver was “under the influence of marijuana” to be guilty of a marijuana DUI case.

Driving a motor vehicle while Under the Influence of marijuana or controlled substance means due to the consumption of marijuana, the driver’s ability to operate a motor vehicle was significantly and materially affected to the degree that they could no longer operate a motor vehicle safely.

There are a couple of very important parts to this definition that must be considered. First, the driving must have been materially and substantially affected. This is a high level of evidence.

Crossing over a lane marker a couple times, which is not unreasonable (and could also be another reason like distracted driving, which can be a defense), is not material and substantial. If, because of the marijuana, a person was driving in a manner that was dangerous, perhaps almost striking other vehicles, all over the road, running red lights and clearly intoxicated; it can be said that their driving was materially and substantially affected.

The other consideration is that the driver could no longer drive in a safe and normal manner. This means that a person can be under the influence of marijuana, but as long as they were able to drive safely, then their driving is not unlawful. There are persons who have built up a tolerance to marijuana to the degree that they could drive safely even immediately after consumption.

This is definitely not recommended for anyone, no matter how their tolerance. Nevertheless, the law requires that to be unlawful, their ability to drive has been altered to the degree that they could no longer drive in a safe and normal manner.

However, the video may show that the light was yellow, a turn signal was used, or “swerving” was minor and within your own lane. Knowing how to properly review a dash-cam video is the key to for your case to be dismissed early on.

Often times, the best evidence is the observation of the actual driving. This is frequently captured on the police car dash recording device. It will also be described by the officer, if witnessed, in the police report. Police and prosecutors will also seek to use the results of standardized field sobriety tests. These tests are the walk-and-turn, one-leg stand and horizontal gaze nystagmus (HGN) all of which were designed and validated for detection of alcohol impairment, not marijuana.

Despite the fact that they were created for alcohol, the inability to walk a straight line without losing your balance, which is tested during the walk-and-turn test, may still be someone helpful in determining a person’s ability to balance, not necessarily drive. Similarly, the ability to stand on one leg during the one-leg stand test, can be useful for what it is worth. The question becomes this; to what degree does that ability translates to the ability to drive while under the influence of marijuana?

There are non-standardized tests that may be more applicable to marijuana. For instance, there have been studies that conclude that the Lack of Convergence test and the Modified Romberg test are better at identifying a person who is under the influence of marijuana.

Again, just because someone may be “high” on marijuana does not automatically mean their ability to drive has been “significantly and materially” affected by the marijuana to the degree they are no longer able to drive in a normal and safe manner.

There are many strategies to be employed, but it is very important that the defense lawyer knows:

  • the scientific principles of THC specific absorption and elimination (as well as tolerance),
  • cannabis specific field sobriety testing, and a
  • solid understanding of Michigan law.

It can get very complicated. There are several different statutory laws, which must also be interpreted with Michigan case law in order to develop the proper strategy. It is also important to be able to understand the chemical test and the relationship between active THC and THC-COOH metabolite.

If a drug recognition expert was used to perform the investigation, a lawyer is familiar with that protocol. They also took the course is necessary to create a successful defense.

In general, it is necessary to evaluate the driving evidence. It is also necessary to determine whether the field sobriety tests were administered and evaluated properly, and to determine the officer’s training for investigating drug cases. Then, a proper evaluation of the blood test, applying the correct measurement calculations, and performing an analysis of the data that supports the chemical test to determine if its valid and reliable. Only an expert in forensic science, particularly an ACS Forensic Lawyer-Scientist, would be ideal.

Low levels of THC in blood are not a very reliable indicator of intoxication or inability to drive, especially when there is such a high margin of uncertainty (29%). Higher levels of THC can be indicative of a direct relationship of intoxication but they are still very dependent upon the individual user with respect to their tolerance, along with the recency of use and route of administration.

There are different absorption and peak intoxication levels depending upon whether the marijuana was smoked, vaped or eaten. In summary, the blood test may be helpful in some cases but in many cases, it is not.

There are several different statutory laws which must also be interpreted with Michigan case law in order to develop the proper strategy. It is also important to be able to understand the chemical test and the relationship between active THC and THC-COOH metabolite.

If a drug recognition expert was used to perform the investigation, a lawyer is familiar with that protocol and has also taken the course is necessary to create a successful defense.

In general, it is necessary to evaluate the driving evidence. It is also necessary to determine whether the field sobriety tests were administered and evaluated properly, and to determine the officer’s training for investigating drug cases. Then, a proper evaluation of the blood test, applying the correct measurement calculations, and performing an analysis of the data that supports the chemical test to determine if its valid and reliable. Only an expert in forensic science, in particular an ACS Forensic Lawyer-Scientist, would be ideal.

The penalty for a first offense OWI by marijuana is probation of up to two years. Jail is usually not a consideration unless there were aggravating circumstances like an accident, injury or reckless disregard for persons or property. There are some judges who jail first offenders, but they are very rare.

OWI – first offense is punishable by up to 93 days in jail so if there is a probation violation, jail time is very possible. An OWI conviction is six points, while Operating While Visibly Intoxicated (OWVI) is four points added to a driving record.

Alcohol/drug abstinence and random testing is very common. Sometimes, a good argument can be made to eliminate the alcohol testing. However, this is highly dependent upon the judge.

Studies have shown that the peak acute effects following cannabis inhalation are typically obtained within 10 to 30 minutes, with most effects dissipating after one hour. Depending upon the person, impairment from cannabis will clear up three to four hours after use.

This time span could be recommended to users as a minimum wait period before driving. (Fischer et al., 2011 Lower risk cannabis use guidelines for Canada).

The Michigan Impaired Driving Safety Commission performed a very thorough study on whether a THC contraction, like 5 ng/ml of blood, would equate to intoxication similar to .08 g/210 of breath or 100 ml of blood alcohol.

Barton Morris was the only criminal defense attorney who presented to the commission along with other experts like Marilyn Huestis, who is widely believed to be the foremost expert. In a report released in March of 2019, the commission found that a single concentration cannot reliably be used as per se evidence of intoxication. This report will likely preclude the Michigan Legislature from adopting any nanogram concentration level like other states have done.

Why Barton Morris is the Best Lawyer in Michigan For DUI Marijuana Cases

Barton Morris is widely known as the best marijuana DUI/OWI criminal defense lawyer in the State of Michigan. He has written articles for the State Bar of Michigan Marijuana Law Section Journal on the subject. He wrote the position paper for the State Bar of Michigan Marijuana Law section on the subject for the Michigan Legislature. Barton has also testified before the House Judiciary Committee on Cannabis impaired driving.

He presented to the Impaired Driving Safety Commission on the subject, who later adopted his findings in its report (acknowledging Barton Morris as a contributor), and has presented on the subject numerous times over the years including for the Institute of Continuing Legal Education (ICLE), the State Bar of Michigan Marijuana Law Section Annual Conference in 2017, 2018 and 2019, and presented at the Annual Michigan Association of OWI Attorneys (MIAOWIA, an organization for which he is currently President) every year since 2016.

View State Bar of Michigan’s Marijuana Law Section Presentation

Barton Morris has also been so successful in defending these cases that almost every prosecutor knows who he is and respects his knowledge. He is also the only criminal defense attorney to have presented to the Michigan State Police Forensic Science and Toxicology Department (the unit that tests all of the blood for drugs and alcohol for DUI cases) at their annual seminar in Gaylord in July 2019. Additionally, Barton Morris is the only attorney in the State of Michigan that has been certified by the American Chemical Society as a Forensic Lawyer-Scientist.

The Law Offices of Barton Morris offer free case evaluations. Schedule an appointment with one of our DUI / OWI attorneys in Royal Oak by calling (248) 541-2600.

Contact Us

Client Reviews

The Right Firm Asks The Right Questions

What Sets The Law Offices of Barton Morris Apart?

Over Two Decades of Legal Experience Within A Variety of Practice Areas

We’ll Tackle Even The Most Challenging Cases & Refuse To Back Down

We Have a Successful Track-Record Obtaining Favorable Outcomes For Our Clients

Our Seasoned Trial Lawyers Aren’t Afraid To Go To Court & Fight For Your Rights

From Our Clients

50+ Reviews, 5 Star Ratings

Stop your Google search, pick up the phone and retain the services of the best criminal defense team in the state of Michigan. When you hire Barton Morris to represent you, you should be confident in knowing that the lawyers on his team will fight for your legal rights in every way possible. Mr. Morris and his associates legal knowledge is unsurpassed bar none. Although my case was unique, having been on the lam for sixteen years, Mr. Morris was able to prove that the lack of evidence was detrimental to the prosecution and all charges were dismissed. Mr. Morris happened to be the second lawyer that I contacted. The first lawyer said he would take my case for a $10K retainer fee and that I had a long road ahead of me. The next day, I contacted Mr. Morris and knew from our first conversation that I was in good hands with his representation. Stop shopping around and hire Barton Morris today!

Jason
Read More Testimonials

Free Case Evaluation

Tell us about your legal situation.
There is no time to waste. Let our top rated Criminal Defense team review your case.