How “high” will THC levels be before facing criminal impaired driving charges? HB 5024 is researching that limit.
A question I’ve received literally dozens of times may soon be answered. Doctors are increasingly prescribing medical marijuana to treat chronic pain conditions, and, as an auto accident attorney, I have many clients who are now using marijuana as a more effective and safer alternative to dangerous opioid narcotic medications. The question I get but have not been able to definitely answer has been: At what point may this marijuana use for serious personal injuries constitute impaired driving? Currently, there’s no law that lays out what level of THC a person may have in his or her system when driving a motor vehicle.
In fact, there’s almost no real guidance I can give people on marijuana use and driving at this point. There’s no accepted level of THC that currently constitutes a basis for an impaired driving charge.
The same also holds true for the thousands of people driving cars while under the influence of dangerous, but legal, prescription drugs. This is something I’ve written about previously, and which I feel as an automobile accident attorney has now reached crisis levels on our roads. The cases I see firsthand seem to correlate with the research that prescription drugs and opiates are causing far more car accidents than marijuana.
Driving “high” is becoming a complex legal problem, as conflicting federal and Michigan laws allow the use of medical marijuana, and the use of both legal and illegal pot increases (see the statistics below for how dangerous driving on pot really can be).
How “high” is too high?
All this may soon change, however, starting with a recent bill passed by the Michigan House. House Bill 5024 aims to form a commission to recommend the level of THC (the main active ingredient in pot) that would bring an impaired driving charge for someone using marijuana.
The legislation would create the “Impaired Driving Safety Commission Act.” Members appointed by Gov. Snyder would include the Michigan State Police director, a medical doctor, a forensic toxicologist, a medical marijuana patient and two university professors. A report would be filed with the governor and Legislature by July 1, 2017.
The House has overwhelmingly approved the bill, sponsored by Rep. Peter Lucido (R-Shelby Township), by 107-1 on April 26. Next it will be reviewed by the Senate Judiciary Committee.
Rep. Lucido told the Associated Press that without such a study, efforts to convict drivers who cause automobile accidents while high on marijuana would be a “waste of time and taxpayers’ resources, because we’re going to continue to argue about a standard in a courtroom when one could first be made that everybody has agreed to — all stakeholders.”
I agree with Rep. Lucido, and believe if the committee comes up with concrete numbers, lawmakers will next consider revamping our impaired driving laws in Michigan to include operating a motor vehicle while driving high on marijuana. This is a win for lawmakers and law enforcement looking to make our roads safer and protect the public. And it’s a win for my clients and for all the people who currently are using medicinal marijuana for chronic pain and other serious injuries and medical conditions, because it will establish a number that can ease their own anxiety that the only drug that is giving them relief from pain won’t land them in criminal trouble by mistake.
Michigan’s impaired driving law
Under Michigan law, it’s illegal for a person to drive if he or she is “operating while intoxicated,” i.e., “under the influence of … a controlled substance, or other intoxicating substance …” (MCL 257.625(1)(a))
Michigan law also prohibits a person from driving in Michigan “if the person has in his or her body any amount of a controlled substance,” including but not limited to marijuana or THC. (MCL 257.625(8))
Now allow me to translate. Currently, if a driver is caught with “any amount” of drugs in his or her system, that’s arguably going to be violating Michigan’s impaired driving law.
To test for drugs, drivers are held to Michigan’s Implied Consent Law, which says that if arrested for driving under the influence of drugs and/or for having “any amount” of drugs in one’s system, a driver will be “considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the … presence of a controlled substance or other intoxicating substance, or any combination of them, in his or her blood or urine …” (MCL 257.625c(1))
Refusal to take any such tests results in six points on the driver’s license and a one-year license suspension.
What other states are doing to penalize driving on marijuana
At least five states have “per se” laws for marijuana-impaired driving (i.e., it’s illegal to drive with a THC blood content of X ng/ml [nanograms per milliliter]):
- Pennsylvania: Per se limit for THC of 1 ng.
- Nevada and Ohio: Per se limit for THC of 2 ng.
- Montana and Washington: Per se limit for THC of 5 ng.
One state has a “reasonable inference” law for THC:
- Colorado: “Reasonable inference” law for THC with a 5 ng limit.
The above information comes from the GHSA’s “Drug-Impaired Driving” study, Pages 21-22.
Additionally, NORML describes Colorado’s “reasonable inference” law as follows:
- Colorado’s drugged driving law “states that in instances where THC is identified in a driver’s blood in quantities of 5ng/ml or higher, ‘such fact gives rise to permissible inference that the defendant was under the influence.’”
Recommendations for THC levels in the blood that constitute impairment
While marijuana use has been a God-send for many of my own automobile accident clients – especially when compared to the dangerous side-effects and addiction rates of opioids – marijuana is still dangerous. It is just less dangerous than many other drugs that are often prescribed for chronic pain and other serious physical injuries by doctors.
Here are some statistics on THC levels in the blood related to its potential to cause an automobile accident.
- “‘Drivers with THC in their blood had a significantly higher likelihood of being culpable than drug-free drivers. For drivers with blood THC concentrations of 5 ng/ml or higher the odds ratio was greater and more statistically significant’”; and, “‘[S]erum concentrations of THC higher than 5 ng/mL are associated with an increased risk of accidents.’”) (Source: Quotes originate in studies acknowledged by NORML in NORML’s “Cannabis and Driving: A Scientific and Rational Review,” Paul Armentano, Deputy Director of NORML and the NORML Foundation, September 12, 2011)
- “The most meaningful recent study measuring driver ‘culpability’ (i.e., who is at fault) in 3,400 crashes over a 10-year period indicated that drivers with THC concentrations of less than five ng/mL in their blood have a crash risk no higher than that of drug-free users. The crash risk [for “drivers with THC concentrations”] begins to rise above the risk for sober drivers when a marijuana user’s THC concentrations in whole blood reach five to 10 ng/mL. (Source: Marijuana Policy Project, “Driving Under the Influence Laws and Medical Marijuana Patients: Zero Room for ‘Zero Tolerance’”; See also Marijuana Policy Project, “Marijuana and DUI Laws: How Can We Best Guard Against Impaired Driving?” (Include link to PDF))
- “Drivers with only alcohol in their systems showed impairment in all three areas [“weaving within the lane, how often the car left the lane, and the speed of the weaving”] while those strictly under the influence of vaporized cannabis only demonstrated problems weaving within the lane. Drivers with blood concentrations of 13.1 ug/L THC, or delta-9-tetrahydrocannabinol, the active ingredient in marijuana, showed increased weaving that was similar to those with a .08 breath alcohol concentration, the legal limit in most states.” (Source: “Cannabis effects on driving lateral control with and without alcohol,” Drug and Alcohol Dependence, Volume 154, 1 September 2015, Pages 25–37, study conducted by researchers at the University of Iowa’s National Advanced Driving Simulator; University of Iowa press release)