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The Odor of Marijuana and Warrantless Searches of Automobiles: Where Do We Stand?

In a recent decision out of the Ninth Circuit Court of Appeals, United States v. Gray, the odor of marijuana in a motor vehicle could provide the probable cause necessary for a warrantless search in a state that has legalized adult use of marijuana. More states across the Country are leaning toward this type of approach in determining the reasonableness of similar searches.  Michigan, which is now a recreational state, will most likely be looking to other states that have recreational laws for guidance on how to decide these types of issues.

In Gray, two occupants of a vehicle were traveling on a downtown street without any lights on. During their progression, they were stopped by county sheriff’s officers. Upon questioning of the occupants, the occupants denied smoking marijuana in the car but the officers believed they were “smoking buds” while the vehicle was operable.  In Nevada it is illegal to, “smoke or otherwise consume marijuana in a public place,… or in a moving vehicle.” Nev. Rev. Stat. § 453D.400(2). The officers then called in a drug detection dog to search the vehicle. The drug detection dog alerted to the vehicle and a search was conducted, finding a firearm in the backpack of one of the occupants. The trial court (a Nevada court) never made the distinction regarding the difference between the odor of burnt or unburnt marijuana thus it appears that the appellate court was left a set of facts pertaining simply to the smell of marijuana.

What does this mean for us here in Michigan? Our law allows for the possession of 2.5 oz. of flower marijuana and who are 21 years or older. “I believe that the case may have had a different outcome had the trail court made a distinction regarding whether or not the odor was of burnt or unburnt marijuana.  Had the smell been of unburnt or fresh marijuana the evidence may of very well been suppressed and the charges dismissed,” says attorney Joshua Covert of the Michigan Cannabis Lawyers.  So long as there isn’t the smell of burning or burnt marijuana in a moving vehicle or while operating, there shouldn’t be probable cause to warrant a search. However, it is important to stay in touch with the changing laws and regulations regarding Fourth Amendment searches and seizures. At the Michigan Cannabis Lawyers, we strive to stay ahead of the pitch and always ready to face a challenge.

 

smoking marijuana impair ability to drive

Does smoking marijuana impair your ability to drive?

The Michigan Impaired Driving Safety Commission was created and given the task of conducting research in order to recommend a scientifically supported threshold of 9-THC. This threshold, much like the .08 blood alcohol level threshold, would indicate to Michigan police whether or not a cannabis user is considered impaired while driving.

Similar studies have been done nationwide with varying results, yet most were unable to come to an absolute threshold that indicates impairment. A 2017 study involving driving simulators and instrumented vehicles revealed that cannabis-impaired subjects typically drive slower, keep greater following distances, and take fewer risks while driving than when driving sober (Compton, 2017). It was believed during this study that this behavior was due to drivers attempting to overcompensate for the subjective effects of using cannabis. In comparison, a 2013 report found an estimated 26% increase in crash risk when the driver had used cannabis (Elvik, 2013); in 2012 a study concluded ingesting cannabis increased the risk of a crash by a factor of 1 to 3 (Schulze et al., 2012); and in 2017 the National Academies of Sciences concluded that there was no substantial evidence of a statistical association between cannabis use and increased risk of a vehicle crash but that there was an increased risk of about 22%-36%.

A percentage of added risk is not enough to determine a specific threshold of THC in the system that would render a driver impaired. This threshold has been difficult to pin down due to how 9-THC is processed through the body. While THC in one’s system goes through a rapid elimination process once ingested the effects on the central nervous system are often delayed. This creates a window of time where the user may not feel the full effect of ingesting cannabis yet the levels of THC in their system are already starting to lower. A test in 2005 showed that 20 minutes after smoking cannabis the user’s 9-THC blood levels were significantly lower than when tested right after smoking (Papafotiou et al., 2005).  

 

Conclusion 

The Safety Commission concluded that there is no scientifically supported threshold of THC that would directly indicate a driver is impaired. Therefore, the Commission recommends the State of Michigan to utilize roadside sobriety test(s) to determine whether a driver is impaired by cannabis instead of blood tests.

 

If you are facing a criminal charge for driving under the influence of marijuana call Michigan Cannabis Lawyers at 517-512-8364.  

 

Local Ordinances and the Medical Marijuana

This case is a court of appeals case in which a conflict between a local ordinances and medical marijuana laws were at issue. The Charter Township of York ordinance was found to have violated the protections provided by the Michigan Medical Marihuana Act(MMMA). The Charter Township of York started the legal proceedings by seeking a declaratory judgment which would have prevented the Defendants from growing their medical marihuana because it violated the local home occupation ordinance and the local ordinance regulating medical marihuana grows.
The issues the Charter Township of York had with the marihuana grow are that it violated the home occupation ordinance because the registered caregiver (the person possessing and cultivating the marijuana plants) did not live at the address and the grow was an outdoor building and not attached to the main residence. These were both violations of the home occupation ordinance. Further, the Charter Township of York also had passed a local ordinance to regulate medical marihuana caregivers. This ordinance did not allow outdoor grows and required all necessary permits to be obtained.
The trial court did not grant the declaratory judgement and held that the local ordinance directly conflicted the MMMA. This meant that the local ordinances as applied in this case were not applicable to local residents who were registered qualifying caregivers under the MMMA.
The Charter Township of York appeal this decision to the Michigan Court of appeals and argued that the zoning law “permitted it to regulate medical marijuana and restrict registered caregivers’ marijuana growing to indoors in areas zoned residential” Charter Township of York v. Miller, 335344, 2018 WL 472187, at *2 (Mich. App. Jan. 18, 2018).
The Michigan Court of appeals in a published decision disagreed with the Charter Townships arguments and the MMMA was ruled to have preempted the local ordinance. The MMA clearly states that “A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana” (Mich. Comp. Laws Ann. § 333.26424 (West)).
The result in this case is that only the regulations contained within the Medical marihuana act will apply to your grow. The home occupation ordinance in this case was void as applied to MMMA caregivers and patients and preempted by the MMMA. The regulations prohibiting outdoor grows or growing in unattached buildings was also preempted by the MMMA. The defendants were though required to abide by and obtain the required permits for the construction code and building permits.
This case is important for all caregivers because many local municipalities are creating local ordinances that conflict with the MMMA. If your local township has a local ordinance that you believe conflicts with the MMMA, call the Michigan Cannabis Lawyers at 517-512-8364.

Joshua Covert of The Michigan Cannabis Lawyers is Interviewed in the Lansing City Pulse

Marijuana attorney Joshua Covert was recently interviewed by the Lansing City Pulse in the annual 4/20 edition.  The article discusses his work as a Cannabis Lawyer and how he fights the drug war.  Read the article here.

Why the Next Medical Marijuana Licensing Board Meeting is Super Important

Michigan Cannabis Lawyers – Marijuana Attorney- Lansing

The next Michigan Medical Marihuana (Marijuana) Facility Licensing Act board meeting will tell us a lot in regards to time lines for the upcoming industry.  The Bureau of Medical Marihuana Regulation (BMMR) began accepting applications for licenses under the Michigan Medical Marihuana Facility Licensing Act (MMFLA) in December of 2017.  Hundreds of applications have been submitted to the BMMR but so far there have been only two applications submitted to the state board for approval.  Each license after submitted must be approved by the state board. For the last meeting there were originally 5 applications on the agenda but three were removed the day before the meeting.  The two submissions that remained on the agenda  were prequalification applications which is the first of a two part application process.   Each of the prequalification applications were temporarily rejected and may be brought up for approval at the next board meeting.  The board meets this week April 19th and the agenda should be released early this week (click here to see agendas and meeting minutes).  Many applicants anxiously await the upcoming agenda to see how many applications will be submitted for approval.  Based on the last board meeting where license approvals were brought up for the first time and the fact that only 5 were originally planned for submission to the board, it would take over 5 years for the board to get through the applications they have currently received.

With new municipalities opting in every week and new opportunities around every corner, there should be a constant stream of applications to add to the stack of applications already piling up.  The State has already added additional meetings to the previously scheduled meeting schedule.  This will help the apparent backlog but wont be enough unless more than 5 applications are submitted to the board at each meeting.  Many patients around the state of Michigan rely on their medical use of marijuana to help them treat a variety of serious medical conditions and are counting on the MMFLA and the BMMR to put a functioning system in place so that they will have safe access to medicine.

Currently, the BMMR and the board have until June 15th to approve the facilities that are currently operating under local approval demonstrated by attestation E.  If those facilities are not granted approval and the rules don’t change, all currently operating facilities will be forced to shut down on June 15th.  If this occurs, patients will not have access to provisioning centers and the medicine that they provide.  It is the suggestion of the Michigan Cannabis Lawyers that the BMMR either add hundreds of applications for submission each meeting or extend the deadlines contained in the emergency rules.  It is vital that patients in Michigan have access to the medical marijuana they need.

 

Josh Covert

The Michigan Cannabis Defender