BY BRIAN McGILLIVARY
TRAVERSE CITY — Rodney Koon may have to spend $30,000 or more to fight a misdemeanor arrest for driving a car the same day he legally used medically prescribed marijuana.
Koon, 49, a laid-off Traverse City roofer, was stopped for speeding Feb. 3 on Garfield Road. A Grand Traverse County deputy found a pipe in his pocket, and Koon readily acknowledged he smoked marijuana that day.
He also showed the deputy a state certificate that allows him to use marijuana for medical purposes.
"I was honest ... that was my mistake," said Koon, who uses marijuana for a variety of ailments, including herniated discs in his back, a pinched nerve in his neck, rheumatoid arthritis of the spine and stomach problems. "I told him I had medicated six hours earlier. After that he was all hot to bust me on a drug charge."
Koon's speeding stop sparked a legal tussle in Traverse City over aspects of the medical marijuana law state voters approved in 2008.
Grand Traverse County authorities charged Koon with driving under the influence of drugs because he tested positive for THC, the primary psychoactive ingredient in marijuana. Prosecutor Alan Schneider based his case against Koon on a law that finds a person guilty if he tests positive for the smallest detectable amount of a controlled substance.
But two area judges disagreed. They said the Michigan Medical Marijuana Act supersedes a state controlled substance law and ruled Schneider must show that the legal use of medical marijuana impaired Koon's ability to drive a car.
"Evidence of impairment is a necessary requirement," wrote 13th Circuit Court Judge Philip Rodgers in upholding a district court judge's decision that prevented a prosecutor in Koon's scheduled Sept. 2 trial from inserting favorable jury instructions. The trial was postponed.
"The (prosecutor) has not alleged ... the defendant's actions and mannerisms at that time indicated a visible or substantial impairment with regard to his driving," Rodgers wrote.
No penalties for medical marijuana use?
Rodgers noted the medical marijuana act states that certified users cannot be "subject to arrest, prosecution, or penalty in any manner ... for the medical use of marijuana."
The statute goes on to state that all other laws not consistent with the medical marijuana act do not apply. But the act also prohibits any person from operating a motor vehicle while "under the influence" of marijuana.
Schneider disagreed with Rodgers' ruling and plans to appeal, all the way to the state Supreme Court, if necessary.
"To say this caveat (in the marijuana act) supersedes another state law is highly questionable," Schneider said. "The court or the legislature needs to clarify this, and I think we have to force the issue."
Matthew Abel, general counsel for the Michigan Chapter of the National Organization for the Reform of Marijuana Laws, said Schneider can parse the marijuana act's language all he wants, but said "a caveat is still the law."
The language is clear and Schneider won't change it on appeal, he said.
"He should run for the Legislature if he wants to set policy," Abel said. "In the meantime, he should mete out his justice with temperance and compassion."
Koon said he's survived the housing industry collapse by working as a handyman over the last two years. He's frustrated by what he believes is Schneider's attempt to stop him from driving or working any time he medicates with marijuana.
"We the people changed this law; 70 percent of the people voted for it, and now these law enforcers want to interpret it anyway they want," Koon said.
His attorney tells him not to worry about Schneider's appeal, and area medical marijuana groups support him. But he'll need financial help to maintain an appeal he's been told could hit $30,000, beyond the $3,000 he's already spent on attorney fees.
"The stress from this affects everything I do," Koon said. "Stress really isn't the word for it. It's totally degrading."
'Just one or two hits'
The incident that prompted the court case wasn't one in which Koon simply was cruising down the road, smoking a joint, getting high. He'd last smoked more than five hours earlier, he said.
"When you medicate you take just one or two hits," he said.
A deputy stopped Koon on his way home from a job about 6 p.m. on Garfield Road in East Bay Township. The deputy said Koon hit 83 miles per hour in a 55 mph zone as he passed a truck, though a speeding ticket was not issued.
The deputy said he smelled alcohol and Koon admitted he had a beer after work. The deputy asked Koon to step out of the car and consent to a search because of the deputy's concern Koon might have a utility knife or other carpentry tool, according to a sheriff's department report.
The deputy said Koon passed most impairment tests, but wrote he could not stand on one leg for 30 seconds, and during a heel-to-toe walking test had a gap in excess of one-half inch.
Koon said he can't stand on one foot due to his back problems. He was arrested and a blood test came back positive for THC at 10 nanograms per milliliter.
Abel, the pro-marijuana group's lawyer, said there's little, if any research on THC levels and driving.
Koon's blood alcohol level was .03, well below the .08 percent level for drunken driving, Schneider said.
Schneider said prosecutors likely will not be able to prove Koon's use of marijuana impaired his driving. He declined to speculate if the amount of THC in Koon's blood was too high to safely drive.
"I'm not a scientist," he said.
Schneider said the Legislature needs to come up with a level similar to the .08 percent blood alcohol level established for drunken driving.
Abel agreed — to an extent.
"The proper way to do that is through research and testing, not on the backs of patients," he said.