Driving Under Influence of Marijuana and Implied Consent in Michigan

If you’ve used medical marijuana in Michigan, drive your car, and are stopped by the police, you can be charged with OWI or “operating while intoxicated.”  This is because Michigan’s drunk driving statute, found at Michigan Compiled Laws 257.625, indicates in part as follows:

As used in this section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

Marijuana would be the controlled substance, and therefore, alone or in combination, is a drug that can lay the predicate for a drunk driving conviction in Michigan. If you are a medical marijuana card holder/patient, then to prove this crime the prosecutor must prove that the THC in your system substantially lessened your ability to operate your car.  On the other hand, if you don’t have a medical marijuana card and are stopped by the police, then you can be charged with a zero-tolerance crime.  This means that if you are not a medical marijuana patient/card holder, then the prosecutor need only show “any amount” of THC in order to gain a conviction.

So how might a prosecutor meet this burden of proof?  Well, after making an OWI arrest, police officers in Michigan nearly always either obtain your consent for the blood draw pursuant to Michigan’s implied consent law, or will obtain a search warrant.  If they do neither, then it is theoretically possible for the state to argue that a search warrant is not required based on the “exigent circumstances” exception to the warrant requirement.  Depending on the particular facts of your case, this argument could prevail.

On example of a case where the court did not find exigent circumstances in an intoxicated driving case involving marijuana is City of Seattle vs. Pearson, 192 Wash. App. 802, 369 P.3d 194 (2016).  In this case, the defendant was believed to be under the influence of THC.  The court found that the specific facts of this case did not give rise to exigent circumstances to allow a warrantless blood draw.  The facts in this case showed that after using medical marijuana, the defendant operated her car and struck a pedestrian.  She pulled over and called 911.  The police called in a DRE who administered several field tasks.  The defendant recited the alphabet at an unsteady pace, and missed several letters.  She was instructed to count from 53 – 36, and upon doing so repeated “47” then continued down to 37 and asked where she was supposed to stop.  Her eyes “lacked convergence” and when asked to tilt her head back close eyes and estimate 30 seconds, she stopped at 14.  She was also unable to complete the one-leg stand, but did successfully complete the finger-to-nose.  A PBT showed all zeros.  The defendant was arrested and taken to the hospital for a blood draw. She arrived at the hospital at approximately 2 hours after the initial collision and 1 hour and 20 minutes after the DRE arrived on the scene. About 2.5 hours after the accident the defendant’s blood was drawn without her consent and without a warrant. The analysis of the blood suggested that the THC concentration was approximately 20 nanograms.  On this basis, the defendant was charged with driving while under the influence of an intoxicating drug.

The defendant filed a motion to suppress arguing that the warrantless blood draw was unlawful.  The City argued that no warrant was needed due to the existence of exigent circumstances.  A City witness testified at trial that THC dissipates from blood very quickly, and that when a person smokes marijuana, the THC blood level reaches its peak before the end of smoking. Then, by three to five hours after smoking the THC level is below the detection limit of the forensic lab. This witness also acknowledged that “THC can be detected in the blood of a chronic user of marijuana for up to seven days, even if that user abstains from smoking marijuana.” A police officer also testified at the suppression hearing that a warrant for obtaining blood in a DUI case usually takes about 1.5 hours, and is done via email.  A telephonic warrant could also be obtained, but the officer did not know how long that would take.

The court held that the natural dissipation of THC in a suspect’s bloodstream will constitute an exigency sufficient to forgo the warrant requirement only if the party seeking to introduce evidence of a warrantless blood test can show that waiting to obtain a warrant would result in losing evidence of the defendant’s intoxication. In this case the court held that the City “failed to satisfy its heavy burden to show by clear and convincing evidence that a warrant could not have been obtained in a reasonable time. The City presented no evidence at the suppression hearing indicating why officers did not seek to obtain a warrant. Considering the totality of the circumstances, the record shows that obtaining a warrant would not have created a significant delay in collecting a blood sample.”  Consequently, the Court of Appeals reversed the trial court’s finding that exigent circumstances existed.