Medical Marijuana And Driver License Appeal

[deer420]

I lost my license in 2006 for my second dui. Since then I have not gone for an appeal hearing. I am now about to become a medical marijuana patient, and I am wondering how this will effect my appeal process. I will have to take a drug test at an evaluation. Everything that i have read is telling me that as long as it is prescribed by a doctor, they will not consider a drug test dirty for a contolled substance. I have gone about doing everything legally and i would just like some clarification, before i submit my application to state. thank you

[Kingdiamond]

Honestly if i were in your shoes id wait and get legal after you get your license back law enforcement in certain areas of the state are dead set against us and are taking patients driving privileges away.

[Michael Komorn]

It is true that the DLAD Drivers License Appeal Division, has in fact restored driving rights to mm patients, not everyone, and all the same hoops need to be jumped through in order to get those rights back. I believe success for these cases will depend mostly on the presentation by the respondent (patient-person who wants license back) at the hearing. In addition to what would normally be required to get your driving rights restored, you would need to present, or be ready to present competent evidence of the certification and medical condition. Their is a specific protocol that must be followed, and in situations dealing with medical marijuana patients, even more so.

[Dr. Bob]

Here is the reply I received from the department ref my efforts to support a patient.

 

========================================================

 

Thank you for your email regarding the Secretary of State’s policy on the medical marijuana law. The Department has asked that I reply on its behalf.

 

The Department is currently having policy discussions regarding the implementation of the medical marijuana law as it applies to Driver Assessment evaluation of a driver’s fitness to drive. As of this writing, a proposed policy on this issue has not been drafted and approved by management.

 

The Driver Assessment reexamination involves the testing of drivers who have been referred in for evaluation. This testing includes a road test accompanied by a Driver Assessment analyst. As you are aware, it is illegal to operate a motor vehicle with the presence of THC, the active ingredient in marijuana, in the blood. This fact would make it problematic for the Departmental analysts to road test an individual who may be under the influence of this drug.

 

The Department is in the process of determining at what point, in terms of when a person last ingested THC, is it safe to operate a motor vehicle for the purpose of road testing. This “safe” time frame would only apply to medical marijuana cases as it relates to Driver Assessment road tests and not to the general population as a whole because the operating under the influence or with the presence marijuana statute still would apply to them.

 

As for your concern that your patient would have to seek an independent physician to complete the doctor statement he will be required to have completed, that will not be the case. Your patient may have any licensed physician, including yourself, complete the form. Your patient will be contacted regarding this matter.

 

Thank you for taking the time to express your concern. If you have additional questions, please feel free to contact this office directly.

 

====================================================

 

Perhaps one of our legal folks can address this. In my reply I indicated that there is NO level of THC that has been shown to be probable cause for impairment, so positive screenings are of no matter. Under the MMMA, which overrides other laws (including the motor vehicle laws) to the contrary, IMPAIRMENT must be proven, not just use. I ask what specific testing they did to demonstrate motor impairment. I also brought up the fact that the law has been in place nearly 3 years and one section specifically says that no right or privilege under any state regulatory board may be denied based on use of medical marijuana. I then reiterated the fact they must prove impairment, he does not need to prove he is NOT impaired.

 

I am waiting to hear what they say.

 

Dr. Bob

[Dr. Bob]

I have offered to evaluate the patient for evidence of impairment. As it is their responsibility I have informed the department that they will be responsible for the $250 exam fee plus travel expenses. Alternatively I've suggested they have a police officer do a field sobriety test on the patient prior to his 'road test' to determine if he is showing signs of impairment. If he passes then he should be tested and his license returned.

 

Dr. Bob

[skipper1963]

Dr. Bob,

 

When you get your reply from the DMV will you let us know?

 

Different circumstances have left me without my drivers license but I am afraid I may be following in the footsteps of your client in trying to get them back.

 

Thanks,

Skipper

[Dr. Bob]

Dr. Bob,

 

When you get your reply from the DMV will you let us know?

 

Different circumstances have left me without my drivers license but I am afraid I may be following in the footsteps of your client in trying to get them back.

 

Thanks,

Skipper

 

Not my client, just a patient that asked for my help. He didn't know who else to turn to.

 

Dr. Bob

[jimbojinx]

Not my client, just a patient that asked for my help. He didn't know who else to turn to.

 

Dr. Bob

 

Like I said to you before, Dr. Bob....

 

"You da MAN !!!!".

 

Dr. Jinx

[lawyercaregiver]

Here is the reply I received from the department ref my efforts to support a patient.

 

========================================================

 

Thank you for your email regarding the Secretary of State’s policy on the medical marijuana law. The Department has asked that I reply on its behalf.

 

The Department is currently having policy discussions regarding the implementation of the medical marijuana law as it applies to Driver Assessment evaluation of a driver’s fitness to drive. As of this writing, a proposed policy on this issue has not been drafted and approved by management.

 

The Driver Assessment reexamination involves the testing of drivers who have been referred in for evaluation. This testing includes a road test accompanied by a Driver Assessment analyst. As you are aware, it is illegal to operate a motor vehicle with the presence of THC, the active ingredient in marijuana, in the blood. This fact would make it problematic for the Departmental analysts to road test an individual who may be under the influence of this drug.

 

The Department is in the process of determining at what point, in terms of when a person last ingested THC, is it safe to operate a motor vehicle for the purpose of road testing. This “safe” time frame would only apply to medical marijuana cases as it relates to Driver Assessment road tests and not to the general population as a whole because the operating under the influence or with the presence marijuana statute still would apply to them.

 

As for your concern that your patient would have to seek an independent physician to complete the doctor statement he will be required to have completed, that will not be the case. Your patient may have any licensed physician, including yourself, complete the form. Your patient will be contacted regarding this matter.

 

Thank you for taking the time to express your concern. If you have additional questions, please feel free to contact this office directly.

 

====================================================

 

Perhaps one of our legal folks can address this. In my reply I indicated that there is NO level of THC that has been shown to be probable cause for impairment, so positive screenings are of no matter. Under the MMMA, which overrides other laws (including the motor vehicle laws) to the contrary, IMPAIRMENT must be proven, not just use. I ask what specific testing they did to demonstrate motor impairment. I also brought up the fact that the law has been in place nearly 3 years and one section specifically says that no right or privilege under any state regulatory board may be denied based on use of medical marijuana. I then reiterated the fact they must prove impairment, he does not need to prove he is NOT impaired.

 

I am waiting to hear what they say.

 

Dr. Bob

 

They are going to say that he certainly does have to prove he is NOT impaired. You quoted the MMMA very effectively but these are folks who lost their drivers license already, often because they have OUIL cases. They have not lost the right or had it taken away because of their patient status so no right is being "taken away or denied" ergo no MMMA conflict. The question is whether they can consider different standards for- in effect revoking the denial- in the case of MM patients. I don't think they can but I promise they will argue they certainly can. No idea how a court will rule.

 

I do love your argument that NO AMOUNT OF THC CAN CAUSE IMPAIRED DRIVING. Certainly in naive users even a small amount of THC can impair driving. In experienced users we have game on! I have pulled over and made my girlfriend drive a couple times because I thought I might be to stoned to drive. The standard I use is: Could I handle it if a State trooper pulled me over in the next 5 minutes....

 

Funny thing is that you are right on. I also actually have some experience getting pulled over when I was in that state (i.e. I thought I might be to high to drive) and found out very quickly no matter how stoned you think you are those red lights and the spotlight in your rear view mirror is a HUGE buzz kill. Thank god for the pine tree scent and Visene.

[Dr. Bob]

They are going to say that he certainly does have to prove he is NOT impaired. You quoted the MMMA very effectively but these are folks who lost their drivers license already, often because they have OUIL cases. They have not lost the right or had it taken away because of their patient status so no right is being "taken away or denied" ergo no MMMA conflict. The question is whether they can consider different standards for- in effect revoking the denial- in the case of MM patients. I don't think they can but I promise they will argue they certainly can. No idea how a court will rule.

 

I do love your argument that NO AMOUNT OF THC CAN CAUSE IMPAIRED DRIVING. Certainly in naive users even a small amount of THC can impair driving. In experienced users we have game on! I have pulled over and made my girlfriend drive a couple times because I thought I might be to stoned to drive. The standard I use is: Could I handle it if a State trooper pulled me over in the next 5 minutes....

 

Funny thing is that you are right on. I also actually have some experience getting pulled over when I was in that state (i.e. I thought I might be to high to drive) and found out very quickly no matter how stoned you think you are those red lights and the spotlight in your rear view mirror is a HUGE buzz kill. Thank god for the pine tree scent and Visene.

 

Thanks for the kind words, but let's be accurate. Of course having THC in your blood can impair you, the point is that there is no agreed level that demonstrates impairment (unlike alcohol) to a statistical certainty, so impairment must be proven at the time of the test. Just a positive test cannot be viewed as evidence of impairment, motor testing is needed to show the evidence.

 

If I were a driver assessment testor, in the case of a driver with THC in their system, I think I would like to see how the person is doing. It is a simple matter to have a police officer come down and check, at the time of the test, if there was evidence of impairment. They want the driver to prove he is safe, I think they need to prove he is impaired, and the law sides with me.

 

Dr. Bob

[lawyercaregiver]

Thanks for the kind words, but let's be accurate. Of course having THC in your blood can impair you, the point is that there is no agreed level that demonstrates impairment (unlike alcohol) to a statistical certainty, so impairment must be proven at the time of the test. Just a positive test cannot be viewed as evidence of impairment, motor testing is needed to show the evidence.

 

If I were a driver assessment testor, in the case of a driver with THC in their system, I think I would like to see how the person is doing. It is a simple matter to have a police officer come down and check, at the time of the test, if there was evidence of impairment. They want the driver to prove he is safe, I think they need to prove he is impaired, and the law sides with me.

 

Dr. Bob

 

Oh I understand. You are of course right on the street during a traffic stop, of course. However, this question is on the DLAD (Drivers License Appellate Division) where the burden is on the appellant to prove he is a safe driver and meet whatever other (reasonable and non-capricious) crap the SecState wants to impose.

 

Dr. Bob, if the DLD won't even test your patient with THC in his blood this looks to me pretty arbitrary and really capricious. I bet the agency caves if that is the case- in no small part due to your diligence.

 

If not the next step is Circuit Court (unless the rules have changed in the last 6 or 7 years...

 

As for the original poster, the advice is to be prepared to drop a clean drug test when you go to get your driver license test unless you want to get caught up in these legal complications. You may have noticed it can get complicated (and expensive) very, very quickly.

[Dr. Bob]

Oh I understand. You are of course right on the street during a traffic stop, of course. However, this question is on the DLAD (Drivers License Appellate Division) where the burden is on the appellant to prove he is a safe driver and meet whatever other (reasonable and non-capricious) crap the SecState wants to impose.

 

Dr. Bob, if the DLD won't even test your patient with THC in his blood this looks to me pretty arbitrary and really capricious. I bet the agency caves if that is the case- in no small part due to your diligence.

 

If not the next step is Circuit Court (unless the rules have changed in the last 6 or 7 years...

 

As for the original poster, the advice is to be prepared to drop a clean drug test when you go to get your driver license test unless you want to get caught up in these legal complications. You may have noticed it can get complicated (and expensive) very, very quickly.

 

Again, we need stepwise action here. This is a pretty clear case- state agencies are clearly named in the law as having to show impairment/non-discrimination based on card status. A win here has further implications to private employers, it makes the argument they must SHOW impairment stronger. Think of how Walmart Joe's case COULD have gone if it was on the books the DMV had to PROVE impairment. Still might have lost but it is a very strong point to take to court.

 

We need to learn to walk before we learn to dance.

 

Dr. Bob