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Proving Marijuana Impairment in DUID Cases
There are four ways for a prosecutor in Michigan to prove that you were DUI, drunk driving or "OWI" (operating while intoxicated). Two of them involve alcohol (OUIL/UBAL) and two of them involve drugs (OUID/OWPD). Making things even more complicated, the prosecutor can also try to show that your driving was impaired by marijuana. This offense goes by the acronym OWVI for operating while visibly impaired.
To show that a person was OWI due to OWPD (operating with presence of drugs), a prosecutor must only show that certain "schedule-1" drugs such as marijuana were present, in any amount, in the driver's blood. Because the prosecutor need not show that these drugs caused intoxication or impairment, these schedule-1 drugs are thought of as "zero tolerance" drugs.
To show that a person is OUID, the prosecutor must show that marijuana caused your ability to drive to be impacted substantially. It is up to a jury to determine whether the evidence shows that the consumption of marijuana caused the driver to no longer be able to operate the motor vehicle in a normal way. The term “substantial” is not otherwise defined within the Michigan DUI laws. The lesser included crime of OWVI requires proof that your ability to operate was lessened, but only to the point that this “lessening” was noticed.Marijuana Impairment Laws
Michigan’s DUI laws relative to marijuana are slightly unsettled and presently unclear. This is because Michigan voters have made both medical as well as recreational marijuana legal. There appears to be a small conflict in the laws that made marijuana legal and the preexisting DUI laws in Michigan. Yes, marijuana is currently a schedule-1 drug, but it is also legal to consume. The quandary then is whether in fairness there should be a zero-tolerance policy as it relates to marijuana and driving?
A good, and likely correct, argument can be made that the only way to read consistency into Michigan’s DUI and marijuana laws is to agree that there is no zero-tolerance for marijuana and instead require the prosecutor to always prove impairment. This would me that the prosecutor cannot use the OWPD theory to support their OWI theory of the crime. The prosecutor would always have to show OUID, meaning show the person was “under the influence” of marijuana at the time of driving. Simply having marijuana or THC in the blood stream would not be enough.Is There a Legal Limit for Marijuana in Michigan?
So far, the answer is no, and this presents a problem as explained above. There are two ways this is likely to be resolved in the future. Either the legislature in Michigan will amend the drunk driving laws, which still say marijuana is zero-tolerance, or Michigan could impose a legal limit for THC. This is what other legalized marijuana states have done, but so far, Michigan’s law enforcement community has rejected this option.If There’s No Legal Limit, How Can DUI Marijuana Be Proved?
Currently the consensus in Michigan is that in order to prove that a person was DUI marijuana the prosecutor must prove that their ability to operate a motor vehicle was either substantially lessened (OWI), or lessened to the point that it was noticed by another person, also called OWVI or impaired driving. These possible theories of DUI require proof beyond a reasonable doubt. Such proof usually consists of all the observations made by the arresting officer as well as the Drug Recognition Expert where applicable. The nature of marijuana and the way it impacts a person makes such proof far more difficult than it might be with alcohol-based crimes.
If you are facing a marijuana intoxicated driving case, have one of the Michigan DUI Lawyers at the Barone Defense Firm review your case. There is no cost or obligation.