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johnm214



Registered: 05/31/07
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DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment neccesary
#7802500 - 12/26/07 11:35 PM (16 years, 1 month ago) |
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Log in to view attachment
Opinion is attached
This isn't breaking news, and is an obvious interpretation of the statute, it seems, but thought I would share this.
Carboxy THC is purportedly non-active, and certainly in the levels available in the blood of a cannabis smoker it is not a signifigant contributor to any impairment.
The Michigain supreme court has ruled that the statute on driving under the influence encompases any derivitive of a controlled substance. What this means, in this case in particular, is that if any level of carboxy THC is detecte in the blood of a driver, that driver is ipso facto guilty, even if it is demonstrated they were not impaired or under the influence of drugs. Lack of intoxication is not a defense to an intoxicated driver conviction
From the opinion, a discusion of the metabolite, which is what is tested for in most employment/court ordered drug tests:
"Medical dictionaries have defined the term “derivative” in a variety of ways. Stedman’s Online Medical Dictionary defines a “derivative” as “[s]omething produced by modification of something preexisting,” or “[s]pecifically, a chemical compound that may be produced from another compound of similar structure in one or more steps, as in replacement of H by an alkyl, acyl, or amino group.”5 Under the first part of this definition, 11-carboxy- THC qualifies as a derivative because it is produced when the body breaks down or naturally modifies THC. 11-carboxy-THC also qualifies as a derivative under the second part of this definition because it is a chemical compound produced when the body metabolizes THC, which is a compound of similar structure. It is undisputed that THC and 11-carboxy-THC are identical except that in 11-carboxy- THC, two oxygen atoms are added to and three hydrogen atoms are removed from the eleventh carbon to make it more water soluble and easier to excrete."
More: "It is irrelevant that an “ordinary” marijuana smoker allegedly does not know that 11-carboxy-THC could last in his or her body for weeks. It is also irrelevant that a person might not be able to drive long after any possible impairment from ingesting marijuana has worn off. The use of marijuana is classified as a misdemeanor under current law, MCL 333.7404(1) and (2)(d). The Legislature’s prohibition of the operation of a motor vehicle with any amount of marijuana, which explicitly includes derivatives of marijuana, in the body provides more than adequate notice regarding the prohibited conduct."
The dissent gives some reasons why this is a nonsensical rule, though it is the law:
"The full import of this decision can only be understood by recognizing that the majority’s interpretation means that a person can no longer legally drive a car if scientific testing can detect any amount of 11-carboxy-THC in his system. This means that weeks, months, and even years after marijuana was ingested, and long after any risk of impairment has passed, a person cannot drive a car without breaking the law if a test can detect the presence of 11-carboxy-THC. . . . Today’s holding now makes criminals of numerous Michigan citizens who, before today, were considered law-abiding, productive members of our communities. Now, if a person has ever actively or passively ingested marijuana and drives, he drives not knowing if he is breaking the law, because if any amount of 11-carboxy-THC can be detected—no matter when it was previously ingested—he is committing a crime. The majority’s interpretation, which has no rational relationship to the Legislature’s genuine concerns about operating a vehicle while impaired, violates the United States Constitution and the Michigan Constitution."
Now, even if we ignore the derivative question, what is the logical end, does water and carbon dioxide constitute derivatives, the problem is the flawed thinking that carboxy THC is indicative of marijuana injestion. There are a plethora of completely legal products that contain THC: birdseed, shampoo, foods, et cet. and which will give rise to detectable levels of carboxy THC, this does not mean intoxication or consumption of marijuana, as defined by statute, was ever realized in the past. Perhaps the person simply handled a birdseed, or washed their hair w/ a shampoo containing hemp products.
The wrong conclusion (in my opinion) of the majority:
" It is undisputed that the presence of 11-carboxy-THC conclusively proves that a person, at some point, ingested THC, which is an ingredient in marijuana and which does have a pharmacological effect on the body."
So it is reasonable that if you ever had contact w/ marijuana, years later you could be convicted of a dui offense given sufficiently aggressive procedures to gather derivatives, which are often lingering in adipose tissue. Remember, drug tests have a cut off; that 1 month window of detection isn't so much saying that even the 1$ tests can't detect marijuana after this point, only that it is likely to detect marijuana in quantities greater than that tested for at this point.
Should we hold our breaths for the legislature to fix this obviously arbitrary law? Or will we be reminded that the children need to be protected, that drugged drivers are not acceptable, and that you must have consumed marijuana if you had carboxy THC in your system- as the court assures us (wrongly)?
Edited by johnm214 (12/26/07 11:37 PM)
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Seuss
Error: divide byzero



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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: johnm214]
#7802908 - 12/27/07 03:55 AM (16 years, 1 month ago) |
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Quote:
" It is undisputed that the presence of 11-carboxy-THC conclusively proves that a person, at some point, ingested THC, which is an ingredient in marijuana and which does have a pharmacological effect on the body."
What bullshit. Undisputed proof? Hardly. I guarantee take a person that has never consumed cannabis in their life can fail a drug test with positives for THC metabolites. This crap reminds me of Hatch supporting the RIAA move to remotely destroy computers that might have copyrighted material on them; until somebody pointed out that his own web server was serving warez. Little annoys me more than totalitarian @#$%@#! and their push for zero thinking, er tolerance.
-------------------- Just another spore in the wind.
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Chemy
Jesus is Lord

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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: Seuss]
#7804297 - 12/27/07 02:37 PM (16 years, 1 month ago) |
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Quote:
Lack of intoxication is not a defense to an intoxicated driver conviction
-------------------- Alcoholics Anonymous Narcotics Anonymous Get help, help is free and available 24/7/365. God bless you all and I hope you receive the help you need to turn away from your lives of sin. Mushrooms and drugs make you gay, you can reverse this homosexual condition with rehab, get help! Stop being gay!
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Seuss
Error: divide byzero



Registered: 04/27/01
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: Chemy]
#7804582 - 12/27/07 04:25 PM (16 years, 1 month ago) |
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-------------------- Just another spore in the wind.
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derx
who run it



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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: Seuss]
#7811989 - 12/29/07 10:58 PM (16 years, 1 month ago) |
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so how do they figure out whether you have cannibinoids in your system or not?
-------------------- better living through chemistry OVERGROW the government!! it's not a war on drugs, it's a war on personal freedom, ok, thats what it is.
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johnm214



Registered: 05/31/07
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: derx]
#7812001 - 12/29/07 11:04 PM (16 years, 1 month ago) |
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blood test, or presumably, a urine test (thought this wasn't done in this case)
The law only requires that the substance be "in the body" so I would presume hair wouldn't count, but that urine, feces, and blood would.
So next time you get pulled over, I suggest you urinat, defecate, and exsanguinate, but not neccesarily in that order
This whole thing is priceless. You can consume poppy seeds and be guilty of an OVI/DUI/DWI whatever the right acronym is. Moreover, any amount is the threshold, so the naturally occuring schedule I chemicals and derivates will convict absolutly everybody.
I wonder if the defense attorney at the trial level didn't know this, or deemed it a faulty argument for the due process and arbitrariness standard, for some reason.
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fastfred
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: johnm214]
#7812635 - 12/30/07 05:02 AM (16 years, 1 month ago) |
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The simple answer is to not supply blood or urine to the cops. Unless you're unconcious and taken to a hospital you should just refuse to provide any samples.
I don't think they can forcibly procure a sample from you.
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johnm214



Registered: 05/31/07
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: fastfred]
#7812668 - 12/30/07 05:20 AM (16 years, 1 month ago) |
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Seems like it might be for the best, but not in my state, in which it is a de facto admission, as far as I know.
In michigain it just seems like they suspend your license untill adjudication of the charge, subject, I'm sure, to other bullshit I missed in this crap: ]]]]]]]]]]]]
MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949
257.625g Duties of peace officer if person refuses chemical test or if test reveals unlawful alcohol content; test results; duration of temporary license or permit; “unlawful alcohol content” defined.
Sec. 625g.
(1) If a person refuses a chemical test offered pursuant to section 625a(6), or submits to the chemical test or a chemical test is performed pursuant to a court order and the test reveals an unlawful alcohol content, the peace officer who requested the person to submit to the test shall do all of the following:
(a) On behalf of the secretary of state, immediately confiscate the person's license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.
(b) Except as provided in subsection (2), immediately do all of the following:
(i) Forward a copy of the written report of the person's refusal to submit to a chemical test required under section 625d to the secretary of state.
(ii) Notify the secretary of state by means of the law enforcement information network that a temporary license or permit was issued to the person.
(iii) Destroy the person's driver's license or permit.
(2) If a person submits to a chemical test offered pursuant to section 625a(6) that requires an analysis of blood or urine and a report of the results of that chemical test is not immediately available, the peace officer who requested the person to submit to the test shall comply with subsection (1)(a) pending receipt of the test report. If the report reveals an unlawful alcohol content, the peace officer who requested the person to submit to the test shall immediately comply with subsection (1)(b). If the report does not reveal an unlawful alcohol content, the peace officer who requested the person to submit to the test shall immediately notify the person of the test results and immediately return the person's license or permit by first-class mail to the address given at the time of arrest.
(3) A temporary license or permit issued under this section is valid for 1 of the following time periods:
(a) If the case is not prosecuted, for 90 days after issuance or until the person's license or permit is suspended pursuant to section 625f, whichever occurs earlier. The prosecuting attorney shall notify the secretary of state if a case referred to the prosecuting attorney is not prosecuted. The arresting law enforcement agency shall notify the secretary of state if a case is not referred to the prosecuting attorney for prosecution.
(b) If the case is prosecuted, until the criminal charges against the person are dismissed, the person is acquitted of those charges, or the person's license or permit is suspended, restricted, or revoked.
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fastfred
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: johnm214]
#7812679 - 12/30/07 05:39 AM (16 years, 1 month ago) |
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The law seems kind of vague. It's pretty standard now that you have to submit to a breathalyser when driving. But to be detained and transported to a hospital to get stuck with a needle seems a little far. There has to be some limit... What would stop them from doing a spinal tap or extracting some bone marrow if they wanted to then?
If you agree to a breathalyser, but refuse to give up blood I would think that would be plenty good. I'd bet it would be hard to find a jury that would convict you of a DUI just for refusing to give a blood sample.
I also wonder what the other sections say about the chemical tests. What if you agree to the test but refuse to be transported? Does the law also give them the authority to seize, detain, and transport you for the purposes of "offering you a chemical test pursuant to section 625a(6)"?
It seems like there must be a little more to the law than just that. For example, can they just take any motorist that they've stopped and force them to come back to the station or hospital for breath or blood?
Usually you have to fail a roadside test in order to be required to take a breathalyser if they don't have one on site.
-FF
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johnm214



Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: fastfred]
#7812682 - 12/30/07 05:47 AM (16 years, 1 month ago) |
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I don't share your optimism about jurys and refusing a test. The michigain law, does provide for you to refuse the test, in which case a judge is sought for a warrant, pending which you are fucked for driving.
But I think in the case of a person who refuses a test, as a practical matter they would likely be arrested, in which case they could lawfully be transported damn near anywhere. If they consent to the test, but not the transport, that would seem to affect a refusal to be tested, providing the test is made available in a reasonable fasion (i.e. at the hospital half an hour away).
maybe I'll check out this some more later... going to bed.
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fastfred
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Re: DUI/ DWI in MI for any detectable level of carboxy THC or other cannabinoid, no impairment necce [Re: johnm214]
#7814074 - 12/30/07 03:31 PM (16 years, 1 month ago) |
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There must be some helpful info in the case law.
A breathalyzer is an easy sell because it really doesn't require much. You're constantly providing the sample and really have no choice in the matter. Very few people have a legitimate excuse for not submitting to one. I recall instances where asthmatics have been excused from the law because they tried to submit to the test, but simply couldn't provide enough air to the machine.
OTOH nobody likes being stuck with a needle, some even have a deathly fear of it. Many people also have "shy bladder" especially under such stressful circumstances.
It seems to me that it's really pushing things to require everyone to submit to painful, time consuming, and invasive procedures without any probable cause being required. The law is borderline unconstitutional IMHO, so for the state to try to push things beyond a simple on-site breathalyser test they are opening the door to a number of challenges and also jury nullification.
Another factor against this law being applied to other than breathalysers is the fact that if you refuse you're going to end up in court with no evidence of wrongdoing against you. Assuming that you refused roadside tests they will have no real evidence of drinking or how much you drank. If you consent to the test but refuse the delay, transport, or manner of testing then they might have a good deal of difficulty proving that you refused.
So the case would come down to an innocent motorist doing nothing wrong being pulled over and demanded to be taken into custody, transported to a hospital, and poked with a needle, obviously ruining whatever business they were on at the time. And all of that under the threat of being imprisoned, car impounded, and driving privileges revoked. If the victim generally cooperated with the officers I would take that to trial any day of the week.
You've already shown the victim innocent (no evidence against him), the cops assholes (ruining the person's day without any good cause), and the law questionable (in that it is so ripe for abuse).
The stumbling block might be because some states have an "administrative suspension" which can be done without due process. However I would certainly fight the criminal penalties.
-FF
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