Traverse City Record-Eagle

May 26, 2013

Editorial: Court zaps 'zero tolerance'


Traverse City Record-Eagle

---- — Finally, some rare common sense has been injected into the medical marijuana debate in Michigan. And oddly enough, it has come from the Michigan Supreme Court, which has hardly been a defender of individual rights over the past decade or so.

In a Grand Traverse County case, the court effectively struck down a “zero tolerance” approach toward medical marijuana patients who drive with the drug in their system.

Perhaps more importantly, the court finally said the medical marijuana law gives patients real rights when it comes to complying with other laws and can even trump existing law.

Rodney Lee Koon, 51, has a medical medical marijuana registry card to address pain from two back surgeries. He was pulled over in 2010 by a Grand Traverse County sheriff’s deputy for speeding and told the deputy he had smoked marijuana about five hours earlier.

Koon was arrested and charged with operating while intoxicated after a blood test showed marijuana in his system. At the time, it was illegal under Michigan law for a driver to have any amount of marijuana in their system.

Thirteenth Circuit Court Judge Philip Rodgers ruled the Michigan Medical Marihuana Act provided Koon with protection from prosecution. His ruling was appealed by then-prosecutor Alan Schneider to the state court of appeals, which reversed Rogers’ decision.

That set the stage for last week’s ruling by the high court, which said the state’s medical marijuana act was clear that patients are protected as long as they don’t drive under the influence.

More to the point, the court said “The MMMA does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person.”

That just reeks of common sense. Which is a good thing. Just as the system of laws that deal with alcohol intoxication and drunken driving depend largely on the amount of alcohol in someone’s system, some similar measure must be created to deal with pot for medical marijuana users.

The law presumes that a certain amount of alcohol in one’s system determines whether they are too intoxicated to drive. In Michigan, a blood-alcohol level of .08 percent or above is too much, and you’ll be arrested for drunken driving.

If you’re pulled over and police measure your blood alcohol level at .04 or .06, you don’t meet the standard. To be equitable, then, the court rightly ruled that “any amount of marijuana in one’s system” should not be enough to qualify a medical marijuana user as intoxicated. The key is that the law “requires some effect on the person.”

Grand Traverse Prosecutor Bob Cooney said he would make a decision “very shortly” on whether to continue the Koon case in 86th District Court under the terms dictated by the Supreme Court.

Cooney said the ruling creates a “double standard” for medical marijuana patients and the rest of the public. He’s right. But that was what the 2008 medical marijuana ballot initiative was all about. It said people who could get a doctor to prescribe marijuana use to ease chronic pain or to deal with the ravages of chemotherapy could use and possess pot. Not everyone.

Cooney said the Legislature initially passed marijuana “zero tolerance” because of the difficulty in establishing such a standard in the first place. “I think it’s important to understand people don’t have same symptoms while under marijuana as alcohol,” he said.

He’s right. The court, in fact, said the Legislature could help clarify the issue by setting a “legal limit” for driving. That’s right, too.

But that’s a problem to be resolved by the state and can’t be an excuse to ticket medical marijuana users who have marijuana in their system but aren’t intoxicated. That’s a double standard.

Rogers suggested police may have to go back to old-school methods used to determine alcohol impairment before technology made that easier.

“Long before blood-alcohol testing, we did roadside testing to see if someone (was) impaired,” he said. “Until such time we have a way to determine quantity of (marijuana) in someone’s system, I assume law enforcement would go back to time-honored field sobriety tests for driving impairment.”

That’s an issue for the state to resolve — in a common-sense way.