Driving While Medicated And The Impact Of Feezel -The Recent Michigan Supreme Court Case

[Michael Komorn]

THE IMPACT OF PEOPLE V FEEZEL: WHETHER “ZERO TOLERANCE” FOR MARIJUANA STILL EXISTS AND THE ROLE OF PROXIMATE CAUSE IN OUID CAUSING DEATH

 

The Michigan Supreme Court’s ruling in People v Feezel (Slip Op No. 138031) reinstated boundaries for prosecutors considering charges in cases of operating under the influence of drugs (OUID) in particular OUID causing serious injury or death. The court held that evidence of the metabolite left in the human body when the psychoactive component of marijuana breaks down is not the same as evidence of the psychoactive component itself.

 

There is substantial debate among the criminal justice community about the impact of the ruling. However, it is easier for the lawyer to understand how the landscape was changed by the Feezel ruling by considering the limits of the holding in Feezel. The court established two important rules in Feezel: 1. the law that prohibits operating with any amount of marijuana (MCL 257.625(8)) does not include a ban on operating with the presence of the metabolite left behind when the psychoactive component of marijuana breaks down in the human body and; 2. evidence of gross negligence on the part of a decedent is relevant if it tends to prove the decedent may have acted in wanton and reckless disregard for the result of his actions, thus an intervening cause of death broke the chain of causation between the accused citizen and the death in the case.

 

The court did not hold that MCL 257.625(8) is unconstitutional. The court specifically focused on the issue of whether the metabolite, 11-carboxy-THC fits the definition of a schedule 1 controlled substance. The court stated “we hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 and, therefore, a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system” (Feezel, Slip Op at 19).

 

The court majority focused its opinion on the definition of a schedule 1 controlled substance for purposes of the statute. It did not reject the statutory language of “any amount.” In fact, the court specifically stated: “…it does not appear that the Legislature intended for 11-carboxy-THC to be classified as a schedule 1 controlled substance” (Slip Op, at 19).

 

The court examined 3 different sources to determine whether a controlled substance fit the definition of a schedule 1 controlled substance: the Michigan Public Health Code; medical sources and federal law.

 

The court determined that under MCL 333.7212(1)©, the definition of marihuana (sic) includes “all parts of the plant Canabis [sic] sativa L., growing or not … and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” (Slip Op. at 20-21). The court then determined that “derivative” did not include 11-carboxy-THC.

 

This point is where the Feezel court overturned the Derror opinion. The court held that the opinion in Derror wrongly concluded that 11-carboxy-THC is a derivative of marijuana for purposes of meeting the definition of a schedule 1 controlled substance in the Michigan Public Health Code. In addressing this flaw in the Derror opinion the court said: “After examining several medical dictionaries with diverse definitions, the majority chose the definition of ‘derivative’ that it believed most closely effectuated the Legislature’s intent, which was ‘a chemical substance related structurally to another substance and theoretically derivable from it” (Slip Op. at 21).

 

However, the court concluded that the Derror court chose a definition that, as the court stated: “seemed to include 11-carboxy-THC as a derivative when experts were in disagreement about whether 11-carboxy-THC is a derivative” (Slip op at 20-21). The court also held that the Derror interpretation of derivative was inconsistent with other relevant state statutory provisions and was also inconsistent with federal law. The court ultimately concluded that 11-carboxy-THC is not a schedule 1 controlled substance and that is why Derror was decided wrongly.

 

The court stated that the Derror definition of derivative is premised on the fact that the Derror court overlooked the directive within the Public Health Code is to interpret MCL 333.7212 in a manner consistent with federal law, ignored the factors that the legislature established to determine whether a substance should be classified as schedule 1. The court went on to hold that no federal court has ruled that 11-carboxy-THC is a schedule 1 controlled substance. The court also said “Moreover, federal courts have stated that ‘the purpose of banning marijuana was to ban the euphoric effects produced by THC’” (Slip Op. at 23)(citing United States v Sanapaw, 366 F3d 492 (CA 7, 2004). Further, experts who testified in both Derror and Feezel indicated that 11-carboxy-THC has no known pharmacological effect.

 

 

 

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

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[peanutbutter]

Hi Michael.

 

I thought you might be able to use this:

 

 

http://norml.org/index.cfm?Group_ID=5450

 

Marijuana and Driving: A Review of the Scientific Evidence

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It is well established that alcohol increases accident risk. Evidence of marijuana’s culpability in on-road driving accidents is much less convincing.

 

Although cannabis intoxication has been shown to mildly impair psychomotor skills, this impairment does not appear to be severe or long lasting. In driving simulator tests, this impairment is typically manifested by subjects decreasing their driving speed and requiring greater time to respond to emergency situations.

 

Nevertheless, this impairment does not appear to play a significant role in on-road traffic accidents. A 2002 review of seven separate studies involving 7,934 drivers reported, “Crash culpability studies have failed to demonstrate that drivers with cannabinoids in the blood are significantly more likely than drug-free drivers to be culpable in road crashes.” This result is likely because subject under the influence of marijuana are aware of their impairment and compensate for it accordingly, such as by slowing down and by focusing their attention when they know a response will be required. This reaction is just the opposite of that exhibited by drivers under the influence of alcohol, who tend to drive in a more risky manner proportional to their intoxication.

 

Today, a large body of research exists exploring the impact of marijuana on psychomotor skills and actual driving performance. This research consists of driving simulator studies, on-road performance studies, crash culpability studies, and summary reviews of the existing evidence. To date, the result of this research is fairly consistent: Marijuana has a measurable yet relatively mild effect on psychomotor skills, yet it does not appear to play a significant role in vehicle crashes, particularly when compared to alcohol. Below is a summary of some of the existing data.

 

(For more information on NORML’s position regarding marijuana, driving and the law, please click here or visit NORML’s Principles of Responsible Cannabis Use.)

 

 

Summaries

Crash culpability studies

On-Road Performance Studies

Driving simulator studies

 

 

SUMMARIES

 

“At the present time, the evidence to suggest an involvement of cannabis in road crashes is scientifically unproven.

 

To date …, seven studies using culpability analysis have been reported, involving a total of 7,934 drivers. Alcohol was detected as the only drug in 1,785 drivers, and together with cannabis in 390 drivers. Cannabis was detected in 684 drivers, and in 294 of these it was the only drug detected.

 

… The results to date of crash culpability studies have failed to demonstrate that drivers with cannabinoids in the blood are significantly more likely than drug-free drivers to be culpable in road crashes. … [in] cases in which THC was the only drug present were analyzed, the culpability ratio was found to be not significantly different from the no-drug group.”

 

REFERENCE: G. Chesher and M. Longo. 2002. Cannabis and alcohol in motor vehicle accidents. In: F. Grotenhermen and E. Russo (Eds.) Cannabis and Cannabinoids: Pharmacology, Toxicology, and Therapeutic Potential. New York: Haworth Press. Pp. 313-323.

 

 

“Cannabis leads to a more cautious style of driving, [but] it has a negative impact on decision time and trajectory. [However,] this in itself does not mean that drivers under the influence of cannabis represent a traffic safety risk. … Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving.”

 

REFERENCE: Canadian Senate Special Committee on Illegal Drugs. 2002. Cannabis: Summary Report: Our Position for a Canadian Public Policy. Ottawa. Chapter 8: Driving Under the Influence of Cannabis.

 

 

“This report has summarized available research on cannabis and driving.

 

… Evidence of impairment from the consumption of cannabis has been reported by studies using laboratory tests, driving simulators and on-road observation. ... Both simulation and road trials generally find that driving behavior shortly after consumption of larger doses of cannabis results in (i) a more cautious driving style; (ii) increased variability in lane position (and headway); and (iii) longer decision times. Whereas these results indicate a 'change' from normal conditions, they do not necessarily reflect 'impairment' in terms of performance effectiveness since few studies report increased accident risk.

 

REFERENCE: UK Department of Environment, Transport and the Regions (Road Safety Division). 2000. Cannabis and Driving: A Review of the Literature and Commentary. Crowthorne, Berks: TRL Limited.

 

 

“Overall, we conclude that the weight of the evidence indicates that:

 

1) There is no evidence that consumption of cannabis alone increases the risk of culpability for traffic crash fatalities or injuries for which hospitalization occurs, and may reduce those risks.

2) The evidence concerning the combined effect of cannabis and alcohol on the risk of traffic fatalities and injuries, relative to the risk of alcohol alone, is unclear.

3) It is not possible to exclude the possibility that the use of cannabis (with or without alcohol) leads to an increased risk of road traffic crashes causing less serious injuries and vehicle damage.”

 

REFERENCE: M. Bates and T. Blakely. 1999. “Role of cannabis in motor vehicle crashes.” Epidemiologic Reviews 21: 222-232.

 

 

“In conclusion, marijuana impairs driving behavior. However, this impairment is mitigated in that subjects under marijuana treatment appear to perceive that they are indeed impaired. Where they can compensate, they do, for example by not overtaking, by slowing down and by focusing their attention when they know a response will be required. … Effects on driving behavior are present up to an hour after smoking but do not continue for extended periods.

 

With respect to comparisons between alcohol and marijuana effects, these substances tend to differ in their effects. In contrast to the compensatory behavior exhibited by subjects under marijuana treatment, subjects who have received alcohol tend to drive in a more risky manner. Both substances impair performance; however, the more cautious behavior of subjects who have received marijuana decreases the impact of the drug on performance, whereas the opposite holds true for alcohol.”

 

REFERENCE: A. Smiley. 1999. Marijuana: On-Road and Driving-Simulator Studies. In: H. Kalant et al. (Eds) The Health Effects of Cannabis. Toronto: Center for Addiction and Mental Health. Pp. 173-191.

 

 

“Intoxication with cannabis leads to a slight impairment of psychomotor … function. … [However,] the impairment in driving skills does not appear to be severe, even immediately after taking cannabis, when subjects are tested in a driving simulator. This may be because people intoxicated by cannabis appear to compensate for their impairment by taking fewer risks and driving more slowly, whereas alcohol tends to encourage people to take great risks and drive more aggressively.”

 

REFERENCE: UK House of Lords Select Committee on Science and Technology. 1998. Ninth Report. London: United Kingdom. Chapter 4: Section 4.7.

 

 

“The evidence suggests that marijuana presents a real, but secondary safety risk; and that alcohol is the leading drug-related accident risk factor.”

 

REFERENCES: D. Gieringer. 1988. Marijuana, driving, and accident safety. Journal of Psychoactive Drugs 20: 93-101.

 

 

 

CRASH CULPABILITY STUDIES

 

“For each of 2,500 injured drivers presenting to a hospital, a blood sample was collected for later analysis.

 

There was a clear relationship between alcohol and culpability. … In contrast, there was no significant increase in culpability for cannabinoids alone. While a relatively large number of injured drivers tested positive for cannabinoids, culpability rates were no higher than those for the drug free group. This is consistent with other findings.”

 

REFERENCE:

Logan, M.C., Hunter, C.E., Lokan, R.J., White, J.M., & White, M.A. (2000). The Prevalence of Alcohol, Cannabinoids, Benzodiazepines and Stimulants Amongst Injured Drivers and Their Role in Driver Culpability: Part II: The Relationship Between Drug Prevalence and Drug Concentration, and Driver Culpability. Accident Analysis and Prevention, 32, 623-32.

 

 

“Blood samples from 894 patients presenting to two Emergency Departments for treatment of motor vehicle injur[ies] … were tested for alcohol and other drugs.

 

… Based on alcohol and drug testing of the full range of patients … alcohol is clearly the major drug associated with serious crashes and greater injury. Patients testing positive for illicit drugs (marijuana, opiates, and cocaine), in the absence of alcohol, were in crashes very similar to those of patients with neither alcohol nor drugs. When other relevant variables were considered, these drugs were not associated with more severe crashes or greater injury.”

 

REFERENCE: P. Waller et al. 1997. Crash characteristics and injuries of victims impaired by alcohol versus illicit drugs. Accident Analysis and Prevention 29: 817-827.

 

 

“Blood specimens were collected from a sample of 1,882 drivers from 7 states, during 14 months in the years 1990 and 1991. The sample comprised operators of passenger cars, trucks, and motorcycles who died within 4 hours of their crash.

 

… While cannabinoids were detected in 7 percent of the drivers, the psychoactive agent THC was found in only 4 percent. … The THC-only drivers had a responsibility rate below that of the drugfree drivers. … While the difference was not statistically significant, there was no indication that cannabis by itself was a cause of fatal crashes.”

 

REFERENCE: K. Terhune. 1992. The incidence and role of drugs in fatally injured drivers. Washington, DC: US Department of Transportation National Highway Traffic Safety Administration, Report No. DOT HS 808 065.

 

 

 

ON-ROAD PERFORMANCE STUDIES

 

“Marijuana's effects on actual driving performance were assessed in a series of three studies wherein dose-effect relationships were measured in actual driving situations that progressively approached reality.

 

… THC's effects on road-tracking after doses up to 300 µg/kg never exceeded alcohol's at bacs of 0.08%; and, were in no way unusual compared to many medicinal drugs. Yet, THC's effects differ qualitatively from many other drugs, especially alcohol. Evidence from the present and previous studies strongly suggests that alcohol encourages risky driving whereas THC encourages greater caution, at least in experiments. Another way THC seems to differ qualitatively from many other drugs is that the formers users seem better able to compensate for its adverse effects while driving under the influence.”

 

REFERENCE: H. Robbe. 1995. Marijuana’s effects on actual driving performance. In: C. Kloeden and A. McLean (Eds) Alcohol, Drugs and Traffic Safety T-95. Adelaide: Australia: HHMRC Road Research Unit, University of Adelaide. Pp. 11-20.

 

 

“This report concerns the effects of marijuana smoking on actual driving performance. … This program of research has shown that marijuana, when taken alone, produces a moderate degree of driving impairment which is related to consumed THC dose. The impairment manifests itself mainly in the ability to maintain a lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol. Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.”

 

REFERENCE: W. Hindrik and J. Robbe and J. O’Hanlon. 1993. Marijuana and actual driving performance. Washington, DC: US Department of Transportation National Highway Traffic Safety Administration, Report No. DOT HS 808 078.

 

 

TABULATED SUMMARY OF ROAD TRIALS OF CANNABIS AND DRIVING

Table compiled by the UK Department of Transport (2000)

 

 

 

DRIVING SIMULATOR STUDIES

 

“Overall, it is possible to conclude that cannabis has a measurable effect on psychomotor performance, particularly tracking ability. Its effect on higher cognitive functions, for example divided attention tasks associated with driving, appear not to be as critical. Drivers under the influence of cannabis seem aware that they are impaired, and attempt to compensate for this impairment by reducing the difficulty of the driving task, for example by driving more slowly.

 

In terms of road safety, it cannot be concluded that driving under the influence of cannabis is not a hazard, as the effects of various aspects of driver performance are unpredictable. However, in comparison with alcohol, the severe effects of alcohol on the higher cognitive processes of driving are likely to make this more of a hazard, particularly at higher blood alcohol levels.”

 

REFERENCE: B. Sexton et al. 2000. The influence of cannabis on driving: A report prepared for the UK Department of the Environment, Transport and the Regions (Road Safety Division). Crowthorne, Berks: TRL Limited.

 

 

TABULATED SUMMARY OF SIMULATOR STUDIES OF CANNABIS AND DRIVING

Table compiled by the UK Department of Transport (2000)

 

http://www.newscientist.com/article/...marijuana.html

 

 

Alcohol impairs driving more than marijuana

 

* 19:00 20 March 2002

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* Arran Frood

 

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A single glass of wine will impair your driving more than smoking a joint. And under certain test conditions, the complex way alcohol and cannabis combine to affect driving behaviour suggests that someone who has taken both may drive less recklessly than a person who is simply drunk.

 

These are the findings of a major new study by British transport researchers. The unpublished research, seen exclusively by New Scientist, stops well short of condoning driving under the influence of even small amounts of cannabis. But in a week which has seen renewed debate in Britain surrounding the criminalisation of cannabis, it throws an uncomfortable spotlight on a problem confronting governments everywhere - how to deter the growing numbers of cannabis users from "dope driving".

 

At present there is no accurate test that can reveal whether a driver has taken cannabis before driving, and developing one will not be easy. But even when this problem is cracked, another will remain - where to set the safety threshold for smoking cannabis.

 

Advocates of zero tolerance say there should be penalties for drivers caught with any amount of recently smoked cannabis in their body. The new research suggests that would only be credible if governments also adopted zero tolerance on drink driving.

Middle of the road

 

The new study was undertaken by the Transport Research Laboratory in Crowthorne, Berkshire, and confirms the results of a preliminary study more than a year ago. Researchers at the TRL, led by Barry Sexton, gave 15 volunteers doses of cannabis or alcohol, or a combination of both, before letting them loose on an array of psychomotor tests and a sophisticated driving simulator.

 

The volunteers were given either enough alcohol to raise alcohol levels in the blood to 50 milligrams per 100 millilitres - about 60 per cent of Britain's legal limit of 80 mg/100 ml - or a specially prepared marijuana joint designed to deliver the same high typically experienced by smokers.

 

In the study, cannabis significantly affected only one criterion, known as tracking ability. Volunteers found it more difficult to hold a constant speed and follow the middle of the road accurately while driving around a figure-of-eight loop. The TRL researchers point out in their draft report that this test requires drivers to hold their concentration for a short time, a task which is particularly badly affected by the intoxicating effects of cannabis.

Cautious driving

 

However, volunteers drinking the equivalent of a glass of wine fared worse than those who had smoked a joint. Those who were given both alcohol and cannabis performed worse still, reinforcing the idea that alcohol has a cumulative effect when taken with other drugs.

 

But the study also found that drivers on cannabis tended to be aware of their intoxicated state, and drove more cautiously to compensate. Indeed, doped-up volunteers often rated themselves as being more impaired than police surgeons brought in to evaluate their sobriety.

 

Surprisingly, drinking alcohol didn't offset this cautious behaviour, opening up the unproven possibility that a driver who is moderately drunk might be better off under some conditions if they had also smoked.

 

This cautious behaviour is in line with findings by other researchers. "Whereas alcohol promotes risk taking like fast speeds and close following, cannabis promotes conservative driving, but may cause attention problems and misperceptions of time," says Nicholas Ward, technical adviser to the Immortal project - a three-year European Union trial designed to quantify the crash risk drivers face after taking various drugs and medicines.

__________________

[Michael Komorn]

Thanks pb,

i was aware of these studies. They are great resource for this case i have in Brighten District Court. Also the expert i have hired stands behind this research. What is even more interesting is his analysis of the Michigan State Police Lab, and there techniques and procedures for analysis. We are evaluating the current procedures to see if they even meet the requisite standards to be admitted into evidence. I will tell you more about it when i see you wednesday. Thanks for the post.

[peanutbutter]

Very cool.

 

I'm off this morning to have a chat will an old school mate of mine, Bill Schuette,

 

Should be interesting.

[Michael Komorn]

Make sure you take him some penut butter, but i dont know if chronic pain in the donkey qualifies as a condition. Make sure you take good notes, we will want to talk about this on the radio show.

[dutch&Dutchess]

Thanks pb,

i was aware of these studies. They are great resource for this case i have in Brighten District Court. Also the expert i have hired stands behind this research. What is even more interesting is his analysis of the Michigan State Police Lab, and there techniques and procedures for analysis. We are evaluating the current procedures to see if they even meet the requisite standards to be admitted into evidence. I will tell you more about it when i see you wednesday. Thanks for the post.

 

I have often wondered about MSP lab work. They found that I had 10ng of actual THC in my system after my car accident in 2004 and I had not had anything to smoke that night. I took my prescribed medicine including Ambien and went to bed. I woke up in the hospital after I drove my car in my sleep head on into a pick up truck an hour and half after I went to bed. I still have no memory beyond going to bed and that I had had nothing to smoke at all that day. It was the reason I took the Ambien

I wound up doing 50 days in Livingston county due to my inability to financially comply with the myriad court orders.

I hope you prove that they like the Detroit Crime Lab ARE LIARS and FIX EVIDENCE

 

I can donate a few dollars to the cause

[Michael Komorn]

Livingston County is a nightmare for anyone accused of a crime. The court sets trial dates within 2 weeks of the arraignment and before the defendant even gets the complete discovery. They hand out jail time like it is candy, and they place a priority on moving the case along ahead of the accused right to a fair trial. I sympathize what you had to go through, which of the judges were you so fortunate to draw? I have had to ask the one that we have in this case to recuse herself. I anticipate a very contentious battle. That county is not medical marihuana friendly. It is all very unfortunate, because it is a good case to set precedent or at least address the protections for medical marihuana patients and their right to drive. Thanks for your kind words.

[dutch&Dutchess]

Livingston County is a nightmare for anyone accused of a crime. The court sets trial dates within 2 weeks of the arraignment and before the defendant even gets the complete discovery. They hand out jail time like it is candy, and they place a priority on moving the case along ahead of the accused right to a fair trial. I sympathize what you had to go through, which of the judges were you so fortunate to draw? I have had to ask the one that we have in this case to recuse herself. I anticipate a very contentious battle. That county is not medical marihuana friendly. It is all very unfortunate, because it is a good case to set precedent or at least address the protections for medical marihuana patients and their right to drive. Thanks for your kind words.

 

I had that waddling duck of a stupid fatarse Brennan

When my arraignment came up 6 months after my accident I was sitting in the Double Reggae Cafe in Amsterdam. I wonder what she would have done if I had afforded myself of the opportunity presented to me to stay in Germany? The warrant she issued 12/8/04 (RIP John)would still be in the system. I doubt they would extradite from Germany. My case was finally resolved 1/07. I tried like hell to avoid paying the fine but that would have meant the rest of the 90 days and I had better things to do and my Father paid the bill for me anyway

Stick it to em hard

take no prisoners and record everything anyone there says to you as they are famously two faced as well.

It amazes me how their draconian approach has really done nothing for their crime rate. Second highest recidivist rate in the state among other issues