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Michigan Marijuana Operating While Impaired Defenses

Question: What are some possible defenses to an operating while impaired by marijuana charge in Michigan?

Answer: Operating while impaired by marijuana, a lot of the same things that apply to operating while impaired by liquor or any other substance apply in the marijuana cases. So, the officer still has to have a proper reason for the initial traffic stop, which can be very broad, what the reasons are, but it has to be a good reason to initially stop somebody who’s driving a vehicle. And then after that point in time, there still has to be all the right steps to get them to the point where they’re getting someone out of the car to maybe acquire more, and they still can do field sobriety tests. The major differences are that there’s no breath test to test if someone is on the roadside under the influence of marijuana.

They may do some tests that we’re starting to see being used like a lack of convergence test, to try and determine if somebody may be under the influence of marijuana. And then there are certain drug recognition experts or tests that they might do back at a police station to determine further. So, the defenses, sometimes in marijuana cases have to do with the blood testing that would happen afterwards. So one of the things that would be important to do is not just accept what is on the face sheet that they would provide us that says that the THC level is this, or some of the other numbers that they might provide to us that are more, when THC then breaks down, there’s metabolites they might be looking for as well. And so there might be different levels on that.

So we want to look at those numbers and then actually get more of the raw data that is actually what they use to provide and prepare that face sheet that has just the numbers, the bare numbers on it. So, you want to look kind of a step below all that, because there sometimes are issues with the blood sample, there could be chain of custody issues with that, or the way that the sample was handled or prepared, and then the testing process. So there’s a number of different things that can be done.

It doesn’t just mean because you get a piece of paper that says a certain level was in the blood that automatically that means that someone was impaired by that, and another thing that’s interesting in the marijuana cases is if you’re a medical marijuana patient, then you have some protections and they can’t just say that because you have the presence of marijuana in your system that that means that automatically you’re operating with the presence of drugs. They actually have to show impairment.

So, those are the same kinds of things that we look at with alcohol intoxication or impairment—what kinds of indicators, behaviors really, are there and how can we defend against those? How they did on different tests or the behaviors, are they explained by other things? So, quite a few different defenses, and many of which overlap with alcohol intoxication and other types of intoxication.