"Under the Influence" Takes on New Meaning in Michigan


Like many states, Michigan has a separate "DUI" statute relating to controlled substances. It makes sense to legislate alcohol and other drugs separately, since there's no easy measure to create a "legal limit" for controlled substances. It's also easier to justify a law that prohibits driving with any trace of a controlled substance in your system, since use of controlled substances is in itself a criminal act.

Thus, the Michigan DUI law, like many others, makes it illegal to operate a vehicle with any amount of a controlled substance (as defined by statute) in your body. As in most states, marijuana is included in that list. But the statute that defines controlled substances explicitly includes any "derivatives" of listed substances.

The Michigan Supreme Court has determined that 11-carboxy-THC was a derivative of marijuana, and therefore a controlled substance in itself. The defense and prosecution experts agreed that:

  • 11-carboxy-THC has no narcotic effects and causes no impairment; and
  • 11-carboxy-THC can remain in the body for up to a month after the ingestion of marijuana.

The Michigan Supreme Court accepted both of those statements as fact, and then went on to say that it didn't matter.

The Court pointed out that the law isn't a DUI statute and doesn't require impairment. Rather, it punishes operating a motor vehicle with a controlled substance in your system. Further, 11-carboxy-THC, as a derivative of marijuana, was explicitly included in that state's definition of a controlled substance.

Therefore, any driver who has 11-carboxy-THC in his system at the time of operation of a motor vehicle in the state of Michigan is in violation of the law. This includes drivers who might have used marijuana three weeks earlier and are now driving to work in the morning. It also includes drivers who might never have used marijuana, but had the bad luck to be seated near someone who was at a concert or outdoor event during the preceding weeks, since the Court explicitly stated that knowledge and intent were not required.

The Court ruling has effectively criminalized driving in Michigan if you've been exposed to marijuana in the past thirty days-or roughly thirty days, since the time it takes 11-carboxy-THC to leave your system is inconsistent, and not knowing it's there is no defense.

The Court's ruling relied heavily on its interpretation of definitions and language set forth by the Michigan legislature, and the legislature can amend that language to limit the statute to drivers who are under the influence of controlled substances.

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