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Can You Be Convicted Of Drugged Driving In Michigan With Marijuana Metabolites In Your System?

by | May 19, 2022 | Controlled Substance Offenses, DUI Offenses |


On July 21, 2005, shortly before 2:00 a.m., George Feezel struck and killed Kevin Bass while driving in Ypsilanti Township in Washtenaw County, Michigan.  Mr. Bass, to his detriment, was walking down the middle of the unlit five-lane road with his back to oncoming traffic and was extremely intoxicated (0.268 blood alcohol content).  At the time of the accident, Mr. Feezel’s blood contained 6 nanograms of 11-carboxy-tetrahydrocannabinol (11-carboxy-THC) per milliliter.  Mr. Feezel was charged with several criminal offenses including operating a motor vehicle with the presence of a Schedule 1 controlled substance in his body causing death.

The interesting factor in this case is that 11-carboxy-THC is actually a metabolite of marijuana.  The main ingredient of marijuana is delta-9-THC (delta-9-tetrahydrocannabinol) and is the primary component which causes psychoactive effects (mainly, the feeling of “getting high”).  However, as the delta-9-THC is consumed and broken down by the human body into the blood stream, it forms inactive metabolites such as 11-carboxy-THC which does not provide any psychoactive effects whatsoever.  Delta-9-THC might be detectable in the blood for 12-24 hours after consumption, but 11-carboxy-THC may remain in the blood stream between 7 and 30 days.  Prosecutors relied on the 11-carboxy-THC results in the blood stream to charge and convict Mr. Feezel of MCL 257.625(8)(operating a motor vehicle with the presence of a Schedule 1 controlled substance in his body causing death).  Mr. Feezel appealed to the Michigan Court of Appeals and argued that his conviction, based on the presence of 11-carboxy-THC in his body, violated his due process rights under the Fifth and Fourteenth amendments of the United States Constitution.  After a divided appellate panel upheld his conviction, Mr. Feezel appealed to the Michigan Supreme Court.

The Michigan Supreme Court held “that that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 and, therefore, a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system.”  People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010).  In reaching this conclusion, the Michigan Supreme Court reversed itself on its decision in People v Derror, 475 Mich 316; 715 NW2d 822 (2006) where it previously held that 11-carboxy-THC WAS a schedule 1 controlled substance.  In deciding to change its mind after only four years, the Court reasoned as follows:

“The Derror majority erred because it interpreted ‘derivative’ by choosing a definition, out of several divergent definitions, that seemed to include 11-carboxy-THC as a derivative when experts were in disagreement about whether 11-carboxy-THC is a derivative. Derror, 475 Mich at 327-328; at 350-351 (CAVANAGH, J., dissenting). More importantly, however, the majority’s interpretation ignored and was inconsistent with other relevant statutory provisions. Specifically, the majority failed to interpret MCL 333.7212 in a manner consistent with federal law, ignored the factors the Legislature indicated should be used to determine whether a substance should be classified as a schedule 1 controlled substance, and ignored the Legislature’s definition of “marijuana” and the Legislature’s list of schedule 1 controlled substances, which do not contain the term “metabolite” or the full or any abbreviated name of 11-carboxy-THC. When MCL 333.7212 is interpreted in the context of the statutory scheme, it does not appear that the Legislature intended for 11-carboxy-THC to be classified as a schedule 1 controlled substance.” 486 Mich at 207-208.

“11-carboxy-THC has no pharmacological effect on a person, and, therefore, it has no potential for abuse or potential to produce dependence. Moreover, it is impossible to take 11-carboxy-THC and make it into THC; therefore, it is not an immediate precursor of a substance already classified as a schedule 1 controlled substance.  Thus, although MCL 333.7202 does not expressly prohibit the inclusion of particular substances in schedule 1, it would be absurd to suggest that 11-carboxy-THC, which fails to meet the criteria of MCL 333.7202, fits within that schedule. By ignoring the statutory provisions that are used to classify a controlled substance, this Court failed to carry out the purpose of the Legislature.”  486 Mich at 210. [Internal citations omitted].

“In addition, 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212(1)(d). Under MCL 333.7212(1)(d), ‘synthetic equivalents’ of various marijuana-related substances are included in schedule 1. Synthetic substances are substances that were altered, sometimes in minor ways, but that can still have pharmacological effects on a person.  This definition does not include 11-carboxy-THC, which is a metabolite — a natural byproduct that is created when a person’s body breaks down THC.  Therefore, 11-carboxy-THC is not a ‘synthetic’ substance and, thus, not a schedule 1 controlled substance under MCL 333.7212(1)(d).”  486 Mich at 210-211. [Internal citations omitted].

“Finally, the definition of ‘marijuana,’ MCL 333.7106(3), and the Legislature’s list of schedule 1 controlled substances, MCL 333.7212, do not contain the term ‘11-carboxy-THC’ or any equivalent name. Nor do the statutes contain the term ‘metabolite.’ The Legislature, however, knows how to use the term `metabolite’ when it wants to. In fact, MCL 722.623a requires a person to report suspected child abuse if a newborn infant has any amount of a metabolite of a controlled substance in his or her body.  It is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws. The Legislature’s decision to exclude the word ‘metabolite’ from the relevant statutory provisions is further support that the Legislature did not intend that 11-carboxy-THC be classified as a schedule 1 controlled substance.”  486 Mich at 211. [Internal citations omitted].

Mr. Feezel’s conviction for operating a motor vehicle with the presence of a Schedule 1 controlled substance in his body causing death contrary to MCL 257.625(8) was vacated.

This case is important as it provides further protections for Michigan residents who consume marijuana either recreationally or under the Michigan Medical Marijuana Act.  Responsible marijuana users should wait until the intoxicating effects of the marijuana has passed before getting behind a wheel.  If the prosecutor files charges for operating a vehicle with the presence of a Schedule 1 substance (including marijuana) in the driver’s system, the only relevant level of THC is active delta-9-THC, not 11-carboxy-THC metabolites.  These inactive metabolites are not evidence of being under the influence because they are not considered schedule 1 substances.

When faced with an operating while intoxicated by a Schedule 1 or 2 charge, you need a skilled criminal defense lawyer in your corner to aggressively protect your rights.  Often, the prosecuting attorney will rely on laboratory reports from blood or urine testing that show metabolites in the driver’s system to try and establish impairment.  Good legal counsel can file a motion to suppress these results (or even a motion in limine to restrict the metabolite data only) to prevent this irrelevant information from confusing the jury.  If the only basis for the prosecutor’s case is the presence of metabolites, then aggressively pursuing the issue can lead to a dismissal of the case.

If you or a loved one is accused of any crime in Michigan and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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