Posted on 07/02/2006 4:39:39 PM PDT by neverdem
Should last week’s joint disqualify a pot smoker from driving today?
A police officer pulls you over at a checkpoint and asks, "Have you been drinking?" Assuming he wants to know whether you have consumed alcohol in the last few hours, such that it might be affecting your ability to drive, you say no. "Not at all?" he asks. Well, you admit, you did have a beer the night before, whereupon he arrests you for driving under the influence.
If that scenario makes sense to you, you should have no problem with Michigan's new policy regarding driving and drug use. As recently interpreted by the state Supreme Court, Michigan law prohibits marijuana smokers from driving long after the drug's psychoactive effects have disappeared. A dozen states have similar policies, and federal drug officials think all of them should, which would in effect revoke or periodically suspend the driver's licenses of more than 25 million Americans.
Michigan law bars someone from driving "if the person has in his or her body any amount of a controlled substance listed in schedule 1," which includes marijuana, THC (marijuana's main active ingredient), and their "derivatives." So even before last week's decision by the Michigan Supreme Court, unimpaired drivers could be arrested with tiny, inconsequential traces of THC in their blood. In contrast with this "zero tolerance" rule, the legal cutoff for drinkers is a blood alcohol concentration of 0.08 percent.
The Michigan Supreme Court made the double standard worse by declaring that 11-carboxy-THC, a nonpsychoactive marijuana metabolite that can remain in a person's blood or urine for days or weeks, counts as a forbidden THC "derivative." The upshot is that many regular marijuana smokers can never legally drive in Michigan, whether they're intoxicated or not, while occasional smokers are barred from driving for days after each dose.
"It is irrelevant that an 'ordinary' marijuana smoker allegedly does not know that 11-carboxy-THC could last in his or her body for weeks," the court said. "It is also irrelevant that a person might not be able to drive long after any possible impairment from ingesting marijuana has worn off."
The four judges in the majority bent over backward to reach this bizarre conclusion. They cited several definitions of derivative that could be read to include 11-carboxy-THC, most of which also would render ubiquitous chemicals such as carbon dioxide "controlled substances," meaning that no one would be allowed to drive. They chose the one definition of derivative that avoided this absurd result while still allowing 11-carboxy-THC to be counted as a disqualifying blood contaminant.
The three dissenters noted that such a conclusion is contrary to the law's intent (to protect the public from impaired drivers) and inconsistent with state and federal criteria for Schedule I substances (which are supposed to be psychoactive chemicals or precursors to them). They also argued that the ruling results in an unconstitutionally vague law that invites arbitrary and discriminatory enforcement.
Given variations in metabolism and laboratory standards, marijuana smokers can never be sure whether they're legally permitted to drive in Michigan. The statute as interpreted by the Michigan Supreme Court therefore does not give people enough information to know when they are violating it--a basic requirement of due process and the rule of law.
Treating unimpaired drivers as if they were intoxicated is fundamentally unfair, and treating a drug metabolite with no pharmacological action like the drug itself makes no sense if the goal is preventing accidents. But the drug warriors who see Michigan as a model for the nation have other goals in mind.
Proponents (PDF link) of "zero tolerance" laws, such as drug testing consultant J. Michael Walsh and former federal drug czar Robert DuPont, see them as a way of deterring drug use and forcing users into "treatment." If the point is to make the penalties for smoking marijuana more severe, let's have a debate about that, instead of pretending the issue is traffic safety.
© Copyright 2006 by Creators Syndicate Inc.
Jacob Sullum is a senior editor at Reason. His weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, please e-mail or call the editorial page editor today.
Lets go to the FACTS:
I. FACTUAL BACKGROUND
In Docket No. 129269, defendant Delores M. Derror was driving east on snow- and slush-covered M-72 when she crossed into oncoming traffic and ollided with another vehicle, killing the front-seat passenger, paralyzing two
children in the rear seat, and injuring a third child. The accident occurred at pproximately 6:00 p.m. Derror admitted that she had smoked marijuana, at 2:00 .m., earlier that day. Two blood samples were taken, one at approximately 8:00
p.m. and one at approximately 11:00 p.m. The first blood sample reflected 38 anograms of 11-carboxy-THC per milliliter, and the second contained 31 anograms of 11-carboxy-THC per milliliter. Derror was charged with operating 3 a motor vehicle with the presence of a schedule1 controlled substance in her body, causing death and serious injury, under MCL 257.625(4), (5), and (8).
Derror was also charged with possession of marijuana, MCL 333.7403(2)(d).
In Docket No. 129364, defendant Dennis Kurts was stopped at
approximately 9:00 p.m. for driving erratically. The officer smelled the odor of alcohol on Kurts. Kurts also had glassy, bloodshot eyes. Kurts admitted consuming two beers. During a pat-down search, the officer found a marijuana pipe in Kurts’ pocket. Kurts then admitted that he had smoked marijuana a halfhour earlier. A blood sample was taken at approximately 10:00 p.m. Tests revealed that his blood contained eight nanograms of 11-carboxy-THC per
milliliter and 0.07 grams of alcohol per 100 milliliters. Kurts was charged with operating a motor vehicle while intoxicated, third offense, MCL 257.625(9); operating a motor vehicle with the presence of a schedule 1 controlled substance in the body, MCL 257.625(8); and operating a vehicle with a suspended or revoked license, MCL 257.904(3)(a).
MCL 257.625(8) does not require intoxication, impairment, or knowledge that one might be intoxicated; it simply requires that the person have "any amount" of a schedule 1 controlled substance in his or her body when operating a motor vehicle.
Which leaves us with the constitutional issue; -- can ingesting marijuana lead to an 'impairment' days later, justifying a 'Driving While Impaired' charge?
The 'Driving while impaired charges' were based on their being impaired, not on THC. I think you could say that based on the cases involved. One person's impairment resulted in the death of others, the other person admitted drinking and smoking within the 1/2 hour before being pulled over for irratic driving. Thank goodness they got him before his driving resulted in death as in the other case.
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In Docket No. 129364, defendant Dennis Kurts was stopped at approximately 9:00 p.m. for driving erratically. The officer smelled the odor of alcohol on Kurts. Kurts also had glassy, bloodshot eyes. Kurts admitted consuming two beers. During a pat-down search, the officer found marijuana pipe in Kurts’ pocket. Kurts then admitted that he had smoked marijuana a halfhour arlier. A blood sample was taken at approximately 10:00 p.m. Tests revealed that his blood contained eight nanograms of 11-carboxy-THC per milliliter and 0.07 grams of alcohol per 100 milliliters. Kurts was charged with operating a motor vehicle while intoxicated, third offense, MCL 257.625(9); operating a motor vehicle with the presence of a schedule 1 controlled substance in the body, MCL 257.625(8); and operating a vehicle with a suspended or revoked license, MCL 257.904(3)(a).
We are arguing a constitutional issue.
The law is not vague. It is very specific.
And you have to agree that Mr. Kurts was not acting rational when he toked up and drove. The question remains, did his tokin' cause him to drink and drive or did his drinking cause him to toke and drive?
There in no constitutional right to drive.
Interesting that after all these years actual Americans seem to be ~against~ enacting laws that prohibit drugs & guns.
FR Poll Thread: Does the Interstate Commerce Clause authorize prohibition of drugs and firearms?
Address:http://www.freerepublic.com/focus/f-backroom/1515174/posts
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E Eye:
The Interstate Commerce Clause should be subordinate to the ammendments, right?
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The Interstate Commerce Clause cannot be used to justify infringements on our rights, --- as the above thread explains in full.
There in no constitutional right to drive.
Read the 9th. --- It's in there somewhere, right next to our right to walk..
Seems like in the last few years they have been against enacting laws to ease the prohibition of drugs. NORML has commented on the impact of the defeats they have suffered.
Read the 9th. --- It's in there somewhere, right next to our right to walk..
You are so funny!
You are repeating yourself. And what does the ICC have to do with this. This is a state's issue.
Are you implying that it is unconstitution for the states to regulate who drives on the roads? If so, please explain. I know of no case where that has been declared unconstititional.
In other words, the Michigan legislature couldn't care less if marijuana is "influencing" you -- they simply don't want you driving after you smoked. That, to me, is a valid example of "actual Americans ... enacting laws that are going in the opposite direction."
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Bob - What you seem to be suggesting is that the state of Michigan should have the right to trample the 4th Amendment rights of citizens. I know you are much more patriotic than that.
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fourth Amendment to the United States Constitution From Wikipedia, the free encyclopedia
When I read the 4th Amendment - I form the opinion that without probable cause - no person (government employee or other) has the right to go drawing my blood, cutting my hair or sniffing my urine! There are not words in our language that can overly express how S T R O N G L Y I feel about this!
Of course you won't read this, but here are numerous case citations.
From your link:
"Under its power to regulate private uses of our highways, our legislature has required that motor vehicle operators be licensed (I.C. 49-307). Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, that all motor vehicle operators will be competent and qualified, thereby reducing the potential hazard or risk of harm, to which other users of the highways might otherwise be subject. But once having complied with this regulatory provision, by obtaining the required license, a motorist enjoys the privilege of travelling freely upon the highways..." Washington A.G.O. 59-60 No. 88, p. 11. "
"Few know that the driver's license is a contract"
With that contract you agree to abide by the rules.
"The three dissenters noted that such a conclusion is contrary to the law's intent (to protect the public from impaired drivers)"
Does getting wired up on coffee(caffeine)and donuts(sugar)count as impaired?
Just checking.
Ah, and aren't we supposed to rally against those activist judges that legislate from the bench instead of deciding by law?
See the decision:
"It is not our place to second-guess the Legislature’s intent when the language in the statute is plain and unambiguous.1"
Now isn't that the type of judge you want on the bench. One that makes decisions based on the word of the law?
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