The Law Offices of  Barton Morris

LANSING — Officials with the Michigan State Police made headlines recently, after acknowledging the organization’s toxicology couldn’t tell the difference in blood tested for THC, the psychoactive ingredient in marijuana, and CBD, an ingredient used in supplements and other products, but which doesn’t produce a “high.”

Col. Joe Gasper, MSP director, said in an Aug. 31 public statement the organization halted THC blood testing and would seek an outside vendor until the MSP’s lab could validate a new testing method.

Jeffrey Nye, director of the MSP’s Forensic Science Division, sent a letter to attorneys and others, reiterating many of Gasper’s points, including that MSP identified 3,250 impaired driving cases that could be subject to what has since become known as “the CBD defense.”

Gasper and Nye stated these cases were filed in Michigan courts on or after March 28, 2019.

That’s the day before two state agencies — the Marijuana Regulatory Agency and the Michigan Department of Agriculture and Rural Development — issued a joint statement announcing CBD products would not be regulated if they contained less than 0.3 percent THC.

CBD has never been listed as a controlled substance under the Federal Controlled Substance Act — leading some defense attorneys to say the number of court cases could be much higher, and that MSP leadership knew, or should have known, about the testing problem years ago.

“There have been numerous published peer-review studies which established that would happen,” said Royal Oak attorney Barton Morris, Jr., of MSP’s testing method, which uses an instrument called a gas chromatograph and calls for the addition of an acid, or reagent, to a blood sample prior to testing.

Morris Jr., founder of Cannabis Legal Group and chair-elect of the Cannabis Law Section of the State Bar of Michigan, said studies published in 2005, 2014 and 2019 show the reagent changes blood samples enough that a gas chromatograph can’t distinguish between THC and CBD.

Scientific studies, as well as a 2019 MSP impaired driving report and internal MSP emails are among documents illuminating the challenges faced by law enforcement when trying to determine how high is too high to drive.

MSP Public Affairs Director Shanon Banner on Wednesday said in an email she anticipated the organization would release a public update on the testing issue in the next few weeks.

MSP Internal Emails

In 2017, a handful of MSP emails show, Nye sought factual information from a colleague, MSP forensic toxicologist Nicholas Fillinger, on whether there was a blood-level threshold of THC that could be measured the way that blood alcohol is measured.

Nye on Jan. 24, 2017, emailed Fillinger, who responded with copies of articles about THC’s effects, published in the Journal of Analytical Toxicology in 2012 and 2015, the Journal of Clinical Chemistry in 2011 and 2013, the Journal of Forensic Sciences in 2016, as well as doctoral manuscripts published by the National Institutes of Health in 2007 and 2011.

Another MSP colleague, Lt. Col. Richard Arnold, now commander of the MSP’s commercial vehicle enforcement division, sought the same information, the emails show.

Arnold in 2017 was assigned to the state’s Impaired Driving Commission, created within the MSP by the Legislature, to research THC driver safety.

The studies referenced by Fillinger showed THC can’t be measured in the same way as alcohol. While the authors used terms like “cannabinoid pharmacokinetics” and “psychomotor function,” in layperson’s terms, the studies’ authors came to similar conclusions:

  • THC metabolizes quickly in the human body. People who don’t regularly use marijuana might be impaired, but their blood wouldn’t always show it, while a test of regular users could show elevated results that didn’t necessarily correspond to impairment.

“To put it in very plain, simple and probably obvious terms … there’s no simple answer for a level of THC that causes impairment,” Nye said in a Jan. 27, 2017, email to Arnold.

The emails are part of discovery in People v. Greenwood, a years-old criminal case, argued in Grand Traverse County’s 13th Circuit Court.

Revisiting People v. Greenwood

Prosecutors in 2017 criminally charged a woman who volunteered she’d smoked marijuana 10 hours prior to a car crash in which she was the driver, one of her passengers died and another suffered injury.

Jennifer Greenwood, then 39 of Bear Lake, on Dec. 10, 2016, was Christmas shopping with her mother and her daughter, as previously reported, the trio was traveling west on U.S. 31 in Greenwood’s Dodge Dakota pickup when Greenwood lost control of the vehicle on the icy road and crashed into an oncoming car.

The other driver was uninjured, but Greenwood’s mother, Victoria Laviola, was killed in the collision, and her daughter, Marissa Laviola, broke her leg, court records show.

Greenwood, who court records show was driving under the speed limit, told an investigating officer she’d smoked marijuana about 1:30 a.m.; the crash occurred about 11:30 a.m. and an MSP blood test showed Greenwood was positive for one nanogram of THC.

Greenwood’s attorney, Jesse Williams, argued in court that MSP blood tests were unreliable, one nanogram of THC, if accurate, would be akin to a “half-teaspoon of sugar distributed equally throughout an Olympic-sized pool.”

Geoffrey French, who in 2017 was an MSP forensic scientist and now serves as unit supervisor of MSP’s toxicology unit, was called as a defense witness in Greenwood’s preliminary hearing on March 9, 2017.

French testified he’d not seen any study indicating a suspect would be intoxicated so long after smoking marijuana and could not confirm a correlation between Greenwood’s THC level and impaired driving.

Eric Meiers, a Grand Traverse County Sheriff’s deputy who responded to the crash and later interviewed Greenwood in the hospital, testified Greenwood did not show signs of intoxication.

Michigan law states (for non-medical users) any amount of THC in the blood is a driving violation and the case was bound over to circuit court.

Greenwood pleaded guilty in June 2017 to a felony charge of operating a motor vehicle with THC in her blood causing injury, as part of a plea agreement with the Grand Traverse County prosecutor’s office, was convicted of a felony, and sentenced to six months in jail and two years of probation.

Williams said Tuesday he believes Greenwood’s conviction should be set aside.

“There has been no justice and people have been falsely convicted,” Williams said. “Prosecutors don’t want to go back to court and test this with actual science because they know, at this point, it’s a sham.”

Grand Traverse County Assistant Prosecutor Kit Tholen, who prosecuted the Greenwood case, referred questions to Prosecutor Noelle Moeggenberg, who was not available for comment.

In another case, Linda Hubbell, also represented by Williams, was charged in 2016 with operating a motor vehicle under the influence of a controlled substance.

Williams in September filed a motion in 86th District Court in to suppress the results of Hubbell’s MSP blood test, showing his client tested positive for 12 nanograms of THC, as unreliable.

Like Greenwood, Hubbell, according to court testimony referencing a police incident report, showed no signs of impairment or intoxication.

On Thursday, Hubbell pleaded guilty in 86th District Court to improper lane use, a civil infraction to which Magistrate Tammi Rodgers assessed a $15 fine and $85 in court costs.

MSP Report Raises Questions

The Impaired Driving Commission created by the Legislature in 2017, of which Arnold and Fillinger were members, in March 2019 issued a 24-page report.

“A commission was formed in 2017 to research this matter but concluded there was no scientifically supported threshold of ∆9-THC bodily content that would be indicative of impaired driving due to the fact that there is a poor correlation between driving impairment and the blood (plasma) levels of ∆9-THC at the time of blood collection,” said Banner, the public affairs director for MSP.

(“∆9-THC” denotes delta-9-tetrahydrocannabinol, the scientific name for THC.)

By relying on blood tests, the commission found, law enforcement and the courts could be failing to detect impaired drivers when blood levels were low and impairment was high, and inappropriately flagging unimpaired drivers, often regular users, whose blood levels tested higher even when not impaired.

The commission recommended:

  • increased training for road patrol officers about what constitutes impaired driving
  • expansion of a Drug Recognition Experts training program
  • increased training for prosecutors on the complexities of case law related to driving.

Drug Recognition Expert training Mike Nichols, an East Lansing attorney who authored an operating while impaired (OWI) manual and chairs a national forensic science task force, questioned the value of DRE training.

“The problem that I have with it is they’re trying to couch it as scientific and it’s really not,” Nichols said. “It’s nothing more than additional training to be able to try to connect observations to causes.”

That value of DRE-trained officers is being litigated in state courts after a downstate resident, Cara Bowden, was charged in Ottawa County of being under the influence of marijuana during a Dec. 1, 2020, traffic stop.

The arresting officer said Bowden failed the DRE protocol, which is a 12-step impairment test given at the roadside.

The prosecutor in the case sought to have the officer — who’d undergone DRE training — certified as an expert; a judge agreed; the defense objected and appealed the judge’s decision to the Michigan Court of Appeals.

“The process undertaken by drug recognition evaluation officers is plagued by missteps and errors,” said Royal Oak attorney David Rudoi, on behalf of the Michigan Association of OWI Attorneys, in an amicus brief filed in support of Bowden’s appeal.

The COA has yet to rule and, as with the THC blood testing issue, many are watching and waiting for the outcome that could come any day.

The Michigan ACLU, the State Appellate Defender Office and the Michigan Medical Marihuana Association weighed in with amicus briefs in support; while the Michigan Sheriff’s Association, the Michigan Association of Chiefs of Police, the Prosecuting Attorneys Association of Michigan and Mothers Against Drunk Driving submitted briefs supporting the prosecution’s contention that DRE-trained officers can be considered experts by the court.

In the meantime, the MSP, in January, issued a legal update regarding the state’s vehicle code:

“Officers are reminded that persons 21 years of age or older may not be prosecuted under MCL 257.625(8) (the state’s OWI law) solely for having the presence of ‘any amount’ of marihuana in their system while operating a vehicle unless the evidence shows the marihuana has ‘some effect’ on the person (i.e. impairment or intoxication).”

The state’s current OWI law, however, continues to state “any amount” of a Schedule I controlled substance, which is how the federal government classifies marijuana, is a violation.

Michigan legalized recreational use of marijuana in 2018, although it remains illegal federally.

The issue of how marijuana is classified by the federal government could soon change, however.

President Joe Biden, on Oct. 6, directed Attorney General Merrick Garland and Secretary of Health and Human Services Xavier Becerra to review how marijuana is scheduled under federal law, and issued a pardon for those convicted in federal courts of simple marijuana possession.