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Since being enacted by the public in 2008, medical marijuana has permeated almost all aspects of the Michigan justice system. It seems like every couple of months a new ruling is issued by the Court of Appeals or the Michigan Supreme Court regarding the permitted uses of medical marijuana in this state. However, despite the growing and voluminous case law developing in this area, the courts cannot keep pace with the medical marijuana issues that continue to emerge.
One of these issues is involves the rights of victims who are injured in an automobile accident where medical marijuana was being used by the driver of the at fault vehicle. Another issue which has been subject to intense litigation is the criminal rights of a medical marijuana patient who has been in an automobile accident after having legally used medical marijuana.
A few weeks back, Steven M. Gursten of Michigan Auto Law contacted us about teaming up and writing a series of Questions and Answers about Medical Marijuana and Driving in the State of Michigan. We saw this as a good opportunity to inform Michigan drivers of their rights and explain the laws in further detail. This is our follow-up to the blog post written by Steve Gursten, lead attorney from Michigan Auto Law.
To start, the medical marijuana act (MMA) affords qualifying and registered patients certain rights with regards to using medical marijuana. Internal possession of marijuana is protected by the MMA. Consequently, a patient cannot be prosecuted for having medical marijuana in their system as long as they are not violating the MMA in other ways. However, the MMA does not allow a person to operate a vehicle “under the influence” of marijuana. What does “under the influence” mean? Recently, the Michigan Supreme Court stated in overruling the Michigan Court of Appeals that “under the influence” does not mean that a patient simply had any amount of THC in their system. THC is measured by in the body by parts per billion or nanograms.
It remains illegal for a person who is not a medical marijuana patient to have “any amount” of marijuana in their system when they are driving, even if it is only 1 nanogram. On the other hand, a medical marijuana patient must actually be proven to be impaired from their use of marijuana, apart from how many nanograms are in their system. This means that a MMA cardholder will have rights similar to drunk drivers before the per se alcohol threshold of .08 BAC was adopted by the legislature. The mere presence of THC in the system of a card holder will not alone show that that person was violating the law, but rather a confluence of additional factors like the persons driving, speech, coordination, and or performance on field sobriety tests will hold more weight in determining whether they were driving “under the influence.” This decision by the Supreme Court of Michigan was a step forward for cardholders as THC can stay in ones system for a long period of time. Now, instead of fearing getting behind the wheel even after the effects of the THC have worn off many hours or days ago, a medical marijuana patient can drive a vehicle without worrying that residual THC in his or her system will subject him or her to criminal prosecution under the motor vehicle code.
On the other hand, this does not give medical marijuana patients a free pass. Criminal and civil liability for driving under the influence of marijuana remains a serious and growing problem. Many people are injured as a result of marijuana related driving. Notwithstanding criminal penalties that one can face for causing an accident “under the influence” of marijuana, civil liability in third party lawsuits for negligence remains a real problem.
While the amount nanograms in one’s blood alone does not definitively establish whether a person is driving a vehicle “under the influence” there have been studies which demonstrate that higher levels of THC correlate with an elevated level of intoxication. Simply having a medical marijuana card does not mean that if you get sued for causing injuries in an automobile accident, that all of sudden the amount of THC in blood is irrelevant. In a personal injury lawsuit or even a criminal case, the amount of THC in the blood of the driver is likely to be a highly relevant factor in considering whether one was under the influence or negligent. Moreover, negligence is the standard in a personal injury lawsuit, so demonstrating some level of impairment will be highly probative even if it does not meet the motor vehicles code’s definition of “driving under the influence.”
Of course MMA patients have some level of protection and some explanations for THC being present in their blood. There is likely to be explanations available such as the recurrent use of marijuana leaving residual amounts of THC in the system. Additionally, whenever intoxication is at issue a particular person’s tolerance will also be a large factor in determining whether a driver was negligent or driving under the influence. However, the amount of THC in a driver’s system will undoubtedly be a variable that courts and juries will look at in determining a medical marijuana patient’s level of intoxication when driving.
Simply because the MMA gives medical marijuana patients some lea way in avoiding the strict per se rules that make driving with any amount of marijuana in one’s system illegal under the motor vehicle code, does not remove the hazards that smoking and driving causes. Many more cases will be decided by Michigan’s higher courts giving us more directions and guidance in this area of law, but certainly caution must be taken by all motorists on the road due to the recent developments introduced by the MMA.
Last week, the Supreme Court heard a crucial case to the patients and caregivers in the State of Michigan. While the decision is still months away, this could potentially decide the fate of medical marijuana in Michigan forever. Many local laws or ordinances have been enacted over the past couple of years in a blatant attempt to circumvent the MMMA which was passed by over 60% of state residents back in 2008. Now both Michigan residents and the American Civil Liberties Union are starting to fight back in an attempt to secure and protect their rights.
Here is a little background information about the particular case which the Supreme Court will be making a decision on. John Ter Beek originally filed the lawsuit against the city of Wyoming. The city of Wyoming enacted a zoning ordinance. While zoning ordinances are created regularly, this one is a little bit more “unconventional”. This ordinance essentially bans the use of medical marijuana in any form within city limits.
When writing the law, the city made sure to include that this prohibits use “contrary to federal law, state law, or local ordinance”. By including the phrasing “federal law” they banned all use because it IS still illegal under federal law. John Ter Beek lived within Wyoming city limits and began to fear he might be penalized legally. John Ter Beek lost his original hearing and decided to appeal this decision. After appealing the original decision, a panel of judges decided that the City of Wyoming’s ordinance could no longer be enforced calling it “void and unenforceable.” Now the case will go all the way up the Supreme Court and the consequences of this ruling could impact all of Michigan’s registered users.
There has been an unfortunate amount of confusion ever since the MMMA passed in 2008. The law was poorly written and has created a tremendous amount of controversy and turmoil throughout the state. The Michigan Medical Marijuana Act clearly states that both patients and caregivers that are registered with the state “shall not be subject to arrest, prosecution, or penalty in any manner”. These city ordinances or local laws are a clear attempt to disregard the rights of cardholders in Michigan.
The American Civil Liberties Union is representing John Ter Beek in the case. The ACLU has also filed lawsuits in 3 other populated cities/counties in Michigan that have created similar ordinances to the one in Wyoming. These cities include Birmingham, Lyon, and Bloomfield Hills. These lawsuits are very similar to the one John Ter Beek filed and ask that any ordinance or zoning banning the use of medical marijuana be lifted against users complying with State law.
Michigan is a no-fault state which requires all drivers to purchase no-fault auto insurance which includes lifetime benefits for serious auto injuries. It is currently the only state in the U.S to have these unlimited benefits. Republican Jeff Farrington (Utica) introduced HB 4959 in early September and he is attempting to exclude senior citizens from receiving no fault medical benefits for life. Currently, Michigan drivers that are senior citizens use personal injury protection coverage just like any and all other drivers in the State. This bill aims to lift the PIP requirement for only the senior drivers which are 65 years of age or older.
Don’t be fooled, this is definitely not helping anybody except for the large insurance companies. Senator Rick Jones (Grand Ledge) said this bill is needed to help an issue that is “extremely unfair to seniors on a fixed income.” This may sound like he’s trying to help senior citizens, but it couldn’t be farther from the truth. These legislators view senior citizens as high risk and blame large inflated auto premiums on the elderly instead of on a broken system.
This is an obvious move to decrease the costs of providing medical benefits to those seriously injured in an auto accident, but it does so at the expense of senior citizens who have been paying auto premiums longer than anyone! This is simply another attempt to disguise the fact that insurance companies want to charge high premiums for no fault auto insurance while at the same time not paying out the medical benefits that their “customers” deserve and expect. This bill will put senior drivers at a major disadvantage if they ever encounter serious injuries resulting from an accident.
If this bill were to pass, the drivers who no longer can receive no fault medical expenses will be forced to turn to the only current alternative….MediCare. While MediCare will pay some of the expenses, they will not cover all the expenses like no fault benefits do. There will be a major gap between what MediCare pays and the actual medical expenses. So who is going to pay this difference or gap? It’s you the Michigan Taxpayer. The insurance company is shifting the burden of these expenses from themselves to Michigan taxpayers, sounds like a great deal right? It certainly is for the numerous auto insurance companies who will directly profit from this bill.
The most frightening part of this bill is that it promotes senior drivers to trade away their rights to collect third party benefits. This bill will give Medicare full subrogations rights of any recovery the senior driver may receive. If this bill is passed, senior drivers will no longer have the constitutional right to sue a negligent driver which caused the auto accident.
I’ve seen and read a few articles from several news outlets that Michigan is proposing to increase driving speeds on interstate highways. It turns out that Senator Jones is already putting a proposal together to do just that. Based on the comments on message boards, it easy to tell this is going to be a highly contested and debated topic. If you have done alot of driving on Michigan highways, you already know that you can be doing 80 miles per hour and still get blown by a majority of other cars on the road. While this is certainly worse in some areas than others, I feel that Michigan traffic speeds are already much higher than most other states in the country. What effect a change like this will have it yet to be seen.
The proposed legislation also calls for “speed tests” on the major highways as a requirement and will also offer these tests to any community who is looking to find the safest driving speed for their area. I couldn’t find out any information about how they conduct these tests, but I assume it can’t be too complex if they are willing to conduct them for free. Rick Jones has this to say about these tests….”This is the best way to post speed and it’s the safest. Some cities post speed limits artificially low. For example, streets that should be 35 or 40 mph are posted at 25 and then they order the officers to write tickets to raise revenue, it’s time that this abuse of citizens is stopped.”
While I certainly agree that some cities post absurdly low speed limits to increase revenue, I don’t see what that has to do with raising the speed limits on interstate highways. The real question here is how will drivers react to an increased highway speed. Will they continue to drive whatever speed is comfortable? Will they simply drive 10 miles per faster than before making it around 90 miles per hour? Can Michigan roads hold up the increased stress? Will this change actually improve traffic congestion? Will it cause more auto accidents?
I think another major issue that hasn’t really been discussed is the trucking speed limit. Having a large difference in speeds between cars and trucks is just asking for trouble in my opinion. Its already bad enough on highways like I-94, I can imagine some dangerous scenarios with the large gap in speed limits. There are many questions to be answered and regardless of the final decision made, I hope we make an informed decision that will benefit the actual residents of Michigan.
The Michigan Supreme Court recently made a ruling regarding the legality of medical marijuana patients and driving. Previous to this ruling, all patients were breaking the law simply by driving due to the lack of definition in the MMMA. Since there was no definition for “under the influence” stated in the Act passed in 2008, any trace of marijuana in the blood was enough to bring a criminal charge for an OUI.
The new ruling, which came out recently, states that medical marijuana patients are not breaking any laws by simply having any amount of THC in their system. Obviously, this is a big victory the medical marijuana community, but you can expect more changes to come in this area of the law soon. The ruling did not give any metric or measurement of THC which would be driving “under the influence”.
“This case could have been easily resolved if the (law) had provided a definition of ‘under the influence”. The supreme court justices noted that the law was insufficient, but this is old news to anyone keeping up to date with the law and the industry as a whole. They also advised lawmakers to set a legal limit much like that is in place for alcohol and personal breathalyzer tests. Easier said than done.
Michigan is not the first state to address this issue and some states have a set limit of 5 nanograms. This arbitrary limit would be equivalent to the .08 BAC level for alcohol. But a real problem occurs when setting a limit. THC behaves much differently from Alcohol in the fact that levels can build up with long term use. A high nano-gram reading doesn’t necessarily correlate with being “under the influence.” The current technology doesn’t address or account for this issue and there is no doubt this will cause problems resulting in a lot of innocent people being arrested.
For now…. if you are a medical marijuana patient in the State of Michigan, there is NO set nanogram level of THC which would result in being “under the influence”. While there is currently a roadside sobriety test that police officers utilize for drugged driving, less than 1% of the nation’s officers are fully trained with the method. This makes charging medical marijuana patients with drugged driving much more difficult. Prosecutors will have to prove that the actual active ingredient or the drug itself was in your system, not just simply having a THC level higher than zero. This will obviously have a large impact on the number of drivers arrested for drugged driving and you may be able overturn a previous conviction given the new ruling from the Supreme Court. Overall, this ruling is a positive one for medical marijuana users in Michigan.
There is no doubt that injuries received from an auto accident tend to be severe and the likelihood of a brain injury increases substantially when compared to other accidents or other common causes of injuries. Believe it or not, there are millions of brain injures every single year throughout the United States. Most Americans cringe every time they need to go the doctor because of the high medical costs, just imagine how expensive diagnosing and treating a serious brain injury is. As you probably already know, Michigan utilizes a no-fault system. Unfortunately, by agreeing and adopting to this type of car insurance, drivers are severely limited in their ability to bring a 3rd party lawsuit against the driver who is actually responsible. Most people don’t realize this fact, but it’s certainly true. While nobody that has sustained a brain injury is fortunate, Michigan does have an exception for this law by using what is called a traumatic brain injury exception. Under normal circumstances, an injured victim must prove that that the injury passes a certain “threshold”. If the victim has a brain injury, then this threshold no longer applies to the injury.
The official term for this waived exception is the closed-head injury exception. I can’t get into the entire injury threshold which Michigan has, but all you need to know is that with a brain injury you no longer have to show that the injury was objectively manifested. Sounds simple right? Lawmakers and insurance companies have purposely made it extremely difficult to bring a 3rd party lawsuit even if your injury substantially alters your life. Anyways, objectively manifested means that under usual circumstances (no brain injury) that your injuries can be viewed or seen by others around you or your close friends/family. In other words it needs to be evident to others that you have a serious injury. Fortunately, Michigan lawmakers came to their senses and realized that some brain injuries are near impossible to detect by others. For this very reason, if you have suffered a brain injury from an auto accident you no longer have to prove the injury was “objectively manifested”.
This exception is many times the difference between the ability to bring a 3rd party lawsuit and receiving a fair financial compensation or not being to able bring the lawsuit at all. It’s important to keep as many records following the accident and that you visit a doctor that specializes in head trauma. The more detailed and organized your records, the easier it is to show that you have indeed suffered a brain injury. For more information about brain injuries and the closed-head exception in Michigan, please call us today at (517) 347-6900 for a free consultation.
The State of Michigan has some of the harshest laws in the country when it comes to cracking down on drunken driving and for good reason, it’s dangerous. We are even one of the few states that have enacted a Super Drunk Law which targets driving with a blood alcohol content over .17. We have provided some interesting statistics for both drunk driving and also the corresponding consequences you may be facing after a DUI charge.
A drunken driving charge is not something that should be taken lightly and it should be considered a serious crime since the courts treat it this way as well. In reality it’s one of the few serious legal charges that most people could be facing during their lifetime. The results of this charge can potentially change your life and it’s important that you stay informed of the laws and your rights. Defending drunken driving charges can be quite complicated due to the simple fact that most of the evidence obtained against you is scientific in nature. For this reason alone, you should contact an attorney familiar with the intricacies of Michigan DUI laws and the experience that it takes to successfully defend a complex DUI charge. For more information regarding drunk driving in Michigan, click here. We hope you find this infographic helpful!
Michigan No-Fault Law has recently come under heavy scrutiny by republican lawmakers claiming that reform is required to stave off insolvency to the Michigan Catastrophic Claims Association Fund. As a reminder, the MCCA fund is created through residents taxes and is responsible for paying injured car accident victims’ medical expenses once the medical costs rise over $500,000. Your own insurance currently covers the cost of medical expenses up to this $500,000 amount.
Just today, the MCCA announced a rate increase of 6%. Last year they increased rates by $30/per insured vehicle and this 6% increase equals roughly another $11/per insured vehicle. The MCCA claims that this increase is meant to fight the rising costs of Michigan’s unlimited lifetime medical expenses, but there is not one shred of proof showing these increases are necessary or how they are even calculated. Is it just a coincidence that the MCCA decided to increase rates during talks of no-fault reform??? Think again……
This is clearly a scare tactic used to create fear that Michigan residents will pay EVEN more if we don’t do something drastic. If this insolvency or shortage of fund was real they would be more than happy to share that information. The very fact that they are unwilling to disclose any financial information should be telling by itself! The fact of the matter is that they are raising rates just to scare residents and we have absolutely no way of finding the REAL TRUTH. This “major situation” could easily be fixed if we would just have the facts, but instead they are appealing the decision that they have to comply with the freedom of information act. Is this something that a normal company/person would do when facing bankruptcy??? Major corporations are required to publicly disclose balance sheets, income statements, statements of cash flows, and more. Do Insurance companies have this sort of oversight? The short answer is no even though these insurance companies are banking billions of dollars. The only way to have a positive informative discussion on the current status of no-fault and the MCCA is for them to disclose rate calculations and how much is left is the fund. That would just make too much sense, why would we actually want to fix the underlying problems.
A new bill was just introduced that is attempting to cap medical expenses at $50,000. We would go from unlimited lifetime medical benefits to $50,000. If you or someone you know has had surgery or been in an auto accident you know just how quickly this will be exhausted. What is someone to do when your medical expenses go past this amount? Well they don’t want to talk about that. In most states you’d be able to sue the other driver responsible, but in Michigan your ability to sue the other driver is extremely difficult and even harder too prove in a court of law.
If lawmakers really want to cap medical benefits at $50,000, they are severely limiting your ability to get medical expenses paid and there is no talk of changing the injury threshold for making a 3rd party lawsuit. Currently, you must prove that your injury is a serious impairment of a bodily function in order to sue the negligent driver instead of your own insurance company. In states without no-fault there is no such restriction. If Michigan is going to cap first party benefits (medical expenses) and not change or increase your ability to sue the driver at fault, then there is no point to keeping no-fault. We would be much better off with an at-fault system, which is unfortunate, but it is the harsh reality.
The insurance companies don’t want to change to an at-fault insurance system because they would make LESS money. It’s much easier to cap your benefits and limit your ability to sue the negligent driver. They limit their own risk to pretty much zero while increasing profits, not exactly fair to the residents paying the highest premiums in the country. This way they don’t have to hire a lawyer to fight most of these cases and actually pay when they are required. Take some time to inform yourself about this Michigan no-fault reform, it really could change your life forever.
Even though this hasn’t been covered by many news outlets, there is a set of senate bills that hopes to increase the transparency on how exactly the Michigan Catastrophic Claims Association calculates their rates. They were introduced last month without much notice from anyone. Governor Rick Snyder has openly stated that he wants to focus on No-Fault Reform, but WE want to make sure that any change would be beneficial to the residents of our state. Seems fair enough right? The only way to make informed logical decisions is to have the facts when making these decisions! Rick Snyder has been mute about this MCCA rate calculation “secrecy” issue when he should be leading the fight for more transparency. How can he possibly make this decision for Michigan residents when there is no access to the information supposedly responsible for needing reform?
If you are unfamiliar with the complexities of Michigan No-Fault Law, here is a quick overview of the MCCA. Under No-Fault Law in Michigan, your own insurance company covers your first party expenses which include medical related expenses for the life of your injuries. If an accident or injury is particularly severe, it’s possible that medical costs over the victim’s lifetime will surpass $500,000. This is where the MCCA fund starts to play a role. As I just stated, your insurance covers the 1st party benefits up to $500,00 and this MCCA fund covers medical expenses past the $500,000 to make sure the victim can live a relatively normal life without going bankrupt due to these high medical costs. Here is where the battle begins. The MCCA claims that this fund is low and these serious injuries are causing them to hurt financially thus making this unsustainable into the future. While this sounds like a valid point, it just simply isn’t true. They have no accountability and can increase rates without showing any reasoning or evidence to do so. They have refused to divulge this information multiple times over the last year…..I wonder why?
These senate bills (102 and 103) aim to hold the MCCA accountable for their rate calculations and make the public aware of the REAL financial situation of Michigan auto insurance. We as taxpayers who fund this claim deserve to know how much money is in the fund and how they are calculating our insurance rates, which are now the highest in the country by the way.
A ruling was finally made by the Michigan State Supreme Court regarding patient to patient transfers of medical marijuana, and the 62% of the voters who passed the MMMA in 2008 aren’t going to be happy. The overall vote was 4-1 in favor of making these transfers illegal which also makes it illegal to sell through private establishments. This ruling essentially makes dispensaries and anything similar illegal under the State’s Michigan Medical Marijuana Act (MMMA) which was passed back in 2008. The only way to legally obtain your medical marijuana is to either grow it yourself as a registered cardholder or have it grown by a designated cardholder that is also licensed as a caregiver under state law. Patients cannot transfer medical marijuana between themselves. A large reason that dispensaries became a large target is that they were facilitating patient-patient transfers and this was not liked by Michigan lawmakers. There are approximately 125,000 cardholders in Michigan and only 20% also are licensed as a caregiver. Just based on these rough numbers alone, it’s easy to tell that this ruling will have a significant impact on the Michigan medical marijuana community. It’s clear that changes will be need to be made by some to conform to the new changes based on the interpretation of the 2008 MMMA Law by the Michigan Supreme Court.
I did some digging around to find out how the Judges voted on the decision and found this article by The Morning Sun and here’s the quote from Supreme Court Justice Michael F. Cavanagh, “Rather, I would hold that when a qualified patient transfers marijuana to another qualified patient, both individuals have the right to assert immunity,” Cavanagh said. “Furthermore, as a result of the majority’s erroneous interpretation of (part of the MMMA), the majority improperly concludes that any facilitation of the transfer of marijuana from patient to patient is unlawful and enjoinable as a nuisance.” Unfortunately, the other 4 justices didn’t see it this way at all. Their interpretation is that the MMMA doesn’t give protections to anybody except caregivers that are registered through the state program and their respective medical marijuana patients.
The original case involved a dispensary in Mt. Pleasant which was shut down or raided. More specifically, it involved a dispensary called the Compassionate Apothecary which was in Isabella County, MI. The dispensary itself facilitated patient to patient sales and they took a fee for arranging the transactions and transfers which was said to be near twenty percent. The case had been appealed all the way up the Supreme Court over the last few years.