Prosecutions for Driving Under the Influence of Marijuana Based Upon Unreliable Evidence

Posted on April 07, 2018 in Marijuana


Due 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 and so it 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 blood test reveals the presence in any amount of an active amount of any schedule one drug in a driver he is guilty of operating under the influence of drugs (OUID). There is a zero tolerance for any active amount contained in a person's body. The penalties are the same as Operating Under the Influence of Alcohol.

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. 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.

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.

This DRE training is not scientifically valid or reliable. The officers lack the medical and scientific expertise 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 of principles of pharmacology, the nervous system and human physiology are not being properly 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 ingestion of a drug depends 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. This evaluation is 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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