Marijuana and driving laws prohibit driving under the influence, consuming while driving, smoking in passenger compartment; unknown if exception to ‘any amount’ law for recreational marijuana
Today I want to review what drivers need to know about the marijuana and driving laws in Michigan.
Marijuana became officially legal in the state of Michigan on December 6, 2018, when the Michigan Regulation and Taxation of Marihuana Act legalized recreational possession and use of marijuana by people over 21 years of age. And 10 years before, on December 4, 2008, the Michigan Medical Marihuana Act legalized the use of medical marijuana.
There’s a lot we now know, but there is still a lot we don’t. I am writing this blog today based upon my own 25 years as an auto accident and auto law attorney, as well as work I’ve done on truck accident cases with other attorneys in states like Colorado where recreational marijuana was legalized in 2014. I’m also the past-chair of the Motor Vehicle Trial Lawyers Association and the current President of the Distracted Driving Litigation Group for the American Association for Justice. I’ve attended and presented at many legal seminars on motor vehicle accident litigation and distracted driving where the topic of marijuana and driving laws have been discussed.
Now that recreational marijuana is legal, here are the marijuana and driving laws in Michigan that drivers must obey. They include the following:
- People cannot drive under the influence of marijuana
- People cannot consume marijuana while driving
- People cannot smoke marijuana inside the passenger compartment of a car or truck while it’s on a public road
What are the marijuana and driving laws in Michigan?
Drivers cannot drive under the influence of marijuana, regardless of whether it was consumed on a recreational or medical basis. (MCL 333.27954(1)(a); 333.26427(b)(4))
How do the police know if you have violated the marijuana and driving laws in Michigan?
Because no marijuana-detecting breathalyzer is currently being used by law enforcement to identify marijuana-impaired drivers, the police rely on other circumstantial evidence to determine if a driver has violated the marijuana and driving laws in Michigan.
That determination takes into consideration, but is not limited to, the following factors:
- A driver’s performance on standardized or non-standardized field sobriety tests
- Observations and/or reports about how a driver was actually driving
- Observations of a driver’s physical condition
- Whether the driver and/or the passenger possess an odor of smoked marijuana
- Statements or admissions by the driver
- Statements or admissions by occupants of the driver’s vehicle
- Statements or admissions by witnesses
Significantly, if a suspected marijuana-impaired driver is required to take a chemical test to check his or her system for the presence of marijuana, there is no statutorily prescribed legal THC limit to prove that he or she is under the influence of marijuana.
Is it illegal to smoke weed and drive in Michigan?
The Michigan Regulation and Taxation of Marihuana Act prohibits both consuming and smoking recreational marijuana while driving. Specifically, the marijuana and driving laws in Michigan provided by this act state:
- A driver is prohibited from “consuming [recreational] marihuana while operating, navigating, or being in physical control of any motor vehicle . . .” (MCL 333.27954(1)(g))
- A driver is prohibited from “smoking [recreational] marihuana within the passenger area of a vehicle upon a public way.” (MCL 333.27954(1)(g))
Notably, the Michigan Medical Marihuana Act does not specifically address whether a lawful, registered medical marijuana user can smoke medical marijuana while driving and/or within the passenger compartment of a vehicle that is being driven on a public roadway.
Can you smoke weed in your car in Michigan?
Not as to recreational marijuana. The marijuana and driving laws under the Michigan Regulation and Taxation of Marihuana Act prohibit a driver from smoking recreational marijuana within the passenger compartment of his or her vehicle. (MCL 333.27954(1)(g))
As for medical marijuana, it’s unclear because the law does not specifically address whether a driver can smoke medical marijuana in the passenger compartment of his or her vehicle.
Can a passenger smoke weed in a car?
No. Recreational marijuana cannot be smoked by anyone within the passenger compartment of a vehicle. It is still unclear whether medical marijuana can be smoked.
Can I use medical marijuana and drive in Michigan?
Yes. The marijuana and driving laws in Michigan state that a lawful, registered medical marijuana user can use medical marijuana and drive in Michigan, but ONLY if he or she is not driving under the influence of medical marijuana.
A lawful, registered medical marijuana user can legally drive after having consumed medical marijuana. There would appear to be a conflict here as Michigan’s zero tolerance law generally prohibits people from driving with “any amount” of pot in their system. (MCL 257.625(8))
However, in 2013, the Michigan Supreme Court decided People v. Koon where the justices held unanimously that the “any amount” prohibition did not apply to lawful, registered medical marijuana users:
“The Michigan Medical Marihuana Act (MMMA) prohibits the prosecution of registered patients who internally possess marijuana, but the act does not protect registered patients who operate a vehicle while ‘under the influence’ of marijuana. The Michigan Vehicle Code prohibits a person from driving with any amount of a schedule 1 controlled substance, a list that includes marijuana, in his or her system. This case requires us to decide whether the MMMA’s protection supersedes the Michigan Vehicle Code’s prohibition and allows a registered patient to drive when he or she has indications of marijuana in his or her system but is not otherwise under the influence of marijuana. We conclude that it does.”
Do the marijuana and driving laws in Michigan have an exception to the zero tolerance rule for recreational pot?
Unfortunately the marijuana and driving laws under the Michigan Regulation and Taxation of Marihuana Act do not specifically address this issue in the context of a driver’s consumption of recreational marijuana.
As such, we will have to wait to see how Michigan’s courts handle the issue when it inevitably arises.
It will be interesting because the MRTMA contains an “immunity” provision that is nearly identical to the one in the MMMA that the Michigan Supreme Court relied on in Koon to conclude that lawful, registered medical marijuana users were exempt from the zero tolerance rule that prohibits drivers from having “any amount” of marijuana in their systems.
The immunity provision in the MRTMA provides:
“[T]he following acts by a person 21 years of age or older are not unlawful, are not an offense, . . . are not grounds for arrest, prosecution, or penalty in any manner, are not grounds for search or inspection . . . possessing, using or consuming, internally possessing . . . 2.5 ounces or less of marijuana . . . .” (MCL 333.27955(1)(a))
The immunity provision in the MMMA provides:
“A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner . . . for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed a combined total of 2.5 ounces of usable marihuana . . .” (MCL 333.26424(a))