Fighting a Felony — and Michigan Marijuana Laws

A woman who smoked marijuana 10 hours before a fatal is facing a 15-year felony

By Patrick Sullivan | Aug. 26, 2017

Scientific consensus increasingly recognizes there’s no way to determine the level of impairment in a driver who uses marijuana. So why is a woman who smoked marijuana 10 hours before an accident that killed her mother facing a 15-year felony for impaired driving? A Benzonia lawyer seeks to overturn the impracticable laws currently in place in Michigan.

Just as state officials set out to establish a measurement for marijuana impairment so that motorists can be held accountable for driving while high, state police have acknowledged — at least internally — that there’s actually no way to gauge the level of impairment due to marijuana.

A law passed late last year is supposed to establish a commission to develop a standard, but even before that commission holds its first meeting, it appears their mission might be futile.

Jeff Nye, assistant division commander and quality assurance manager for the MSP Forensic Science Division, asked a colleague to review literature on tetrahydrocannabinol, or THC, the main psychoactive ingredient in pot, to help prepare the commission. What came back, according to an email, was discouraging.

The email was discovered by lawyers defending a woman facing a 15-year felony for driving while allegedly THC-impaired in a December 2016 crash in Grand Traverse County that killed her mother. They argue that the state’s marijuana laws are antiquated and arbitrary; they’ve turned to the state Court of Appeals to get those laws overturned.

NO SIMPLE ANSWER
The trouble lies in the inability to measure whether someone is stoned.
As the state police were preparing to take part in the state’s newly established Impaired Driving Commission, Nye acknowledged that inability in Jan. 27 email. Benzonia attorney Jesse Williams obtained the email through a Freedom of Information Act request.
“To put it in … simple and probably obvious terms … there’s no simple answer for a level of THC that causes impairment,” Nye had written in the email.

He had noted, too, that THC levels actually might be a meaningless barometer of intoxication.

“First, THC metabolizes very quickly in the body. So much so that a person that is not a routine user of marihuana showing impairment while operating a vehicle may have very low to non-detectable levels of THC within 2-3 hours. “On the opposite side of the spectrum, if you are a chronic user of marihuana there may be a fairly high level of THC in the bloodstream related to the release of reserves stored in fat tissue,” he wrote. “In other words, if you are a daily smoker and suddenly stop smoking, there may be significant levels that remain in the bloodstream for a month or more ... ”

Moreover, Nye wrote, chronic users might develop a tolerance to the drug so that the level of THC might not represent the same level of impairment that it would in a non-regular user.

Williams included the email in a motion to dismiss charges of “operating under the influence of a Schedule 1 controlled substance, causing death” filed against 40-year-old Bear Lake resident Jennifer Lyn Greenwood (pictured above). 

THE SCENE OF THE CRASH
When Grand Traverse County Sheriff’s Deputy Eric Meier arrived at the crash scene at 11am Dec. 10, he found a green Dodge Dakota on its left side, driver door down, and a black SUV, both in the middle of the road.

Meier exited his patrol car and had trouble staying upright as he walked along the slippery road. It was 19 degrees outside.

Meier checked on the driver of the SUV, who was okay, and then walked over to the Dodge, where firefighters had already removed the roof.

There were three women, “kind of piled up inside,” he testified at a hearing in May. One of the women, Greenwood’s mom, Victoria Laviola, was dead. Marissa Laviola, Greenwood’s daughter, had a broken leg. Greenwood was taken to Munson Medical Center with a broken ankle.

“If you can picture the chaos of a vehicle crashing, EMS, and everybody running around, people crying. My first responsibility is just let EMS do their job, and I’ll sort it out later, and that’s what happened,” Meier testified at Secretary of State hearing about the crash.

Investigators determined Greenwood had lost control on the snowy road, crossed the centerline, and crashed into the oncoming SUV, a Kia Sorento driven by an Interlochen man, Richard Robb.

Greenwood, her mom, and daughter had just been Christmas shopping in Traverse City and were headed home.

Robb had been heading back to Interlochen after muzzleloader hunting south of Empire. He was driving east on US-31 near Betsie River Road that morning, a Saturday, when a long line of cars approached from the opposite direction. One of them — he wasn’t sure if the Dodge was the second, third or fourth in line — slid into his lane.

At first he thought the car was attempting to make a quick turn into a driveway, and then he realized he had nowhere to go to avoid a collision.

“I just remember blue and then the white of my airbag,” he testified at Greenwood’s preliminary hearing. His car spun around and came to a stop, and Robb said that he just sat there stunned. Someone eventually knocked on his window and asked if he was okay; Robb gave a thumbs up, and the person went away.

VICTIM AND DEFENDANT
After the initial investigation, Meier went to Munson to talk to Greenwood, who was lying in a hospital bed.

“I remember her saying, ‘I just killed my mom,’ repeatedly,” Meier testified in the May hearing.

Greenwood told Meier that she had lost control on US-31, started to fishtail, overcorrected, and then crossed into opposing traffic.

Greenwood was checked for alcohol, and her breathalyzer came back negative. She hadn’t taken any prescription drugs. But she wanted to open up about having smoking marijuana, Meier testified.

“She said that she just wanted to be up front and cooperative, and she told me that she had smoked marijuana approximately 10 hours prior to the crash,” Meiers testified. “And that there was approximately an eighth of marijuana in a plastic baggy inside an empty glass cappuccino jar that was located — that she had put under her driver's seat.”

Meier hadn’t suspected drug use, but Greenwood admitted she’d smoked marijuana at around 1am the night before the crash. Greenwood’s blood was drawn and tested for THC.

Williams, Greenwood’s attorney, said Greenwood had suffered enough over the death of her mother and that the case amounts to prosecutorial overreach because there is no evidence that Greenwood was impaired when she crashed. She was travelling at 35mph in a 55 zone and lost control on ice, he said.

Williams refused to make Greenwood available for an interview because her charges are pending.

“The government is victimizing her in this case,” Williams said. “There was no sign of impairment or intoxication. They acknowledge it was an accident, and weather was the cause of it.”

CASE UNDER APPEAL
Greenwood was charged Jan. 18. By coincidence, another woman who had smoked marijuana before driving and caused a fatal crash on Dec. 10 in Grand Traverse County was charged with the same crime.

That woman, Abby Rose Miller, 19, of Grawn, pled guilty for the crash that killed 83-year-old Armond Worrell. She was sentenced to a year in jail after Worrell’s family asked for leniency. In that case, there was little doubt about whether Miller was impaired.

Williams took Greenwood’s case in another direction: He’s attempted to put Michigan’s marijuana policy on trial.

Greenwood entered a conditional guilty plea and was sentenced to six months in jail in July, but the plea and sentence are being held in abeyance while her case goes before the Court of Appeals. She may withdraw her plea of that court refuses to hear her case.

On appeal, Williams argues that the classification of marijuana as a Schedule 1 drug is improper, and therefore, the state law that makes it illegal to drive with any amount of THC in a person’s system should be struck down.

He also argues that Michigan’s marijuana driving laws violate the Constitution’s equal protection clause because they treat recreational users of marijuana differently than medical marijuana users.

For recreational users, all the state has to do is show the presence of the drug in a person’s system in order to convict for impaired driving. For medical marijuana users, the state must prove the driver was impaired. Williams said that leads to unjust prosecutions.

“They’re only prosecuting her because they can, because the way the law is written,” he said.

POTENTIAL FOR ABUSE
Before the case went to the Court of Appeals, Williams and assistant prosecutor Christopher Tholen battled over those issue at a hearing in May before 13th Circuit Court Judge Thomas Power.

The first issue Williams raised was the state’s classification of marijuana as a Schedule 1 controlled substance, which puts it in the same category as heroin, LSD, and cocaine.

Power noted that the law says that a substance should be classified Schedule 1 if it has a “high potential for abuse and has no accepted medical use in treatment in the United States, or lacks accepted safety for use in treatment under medical supervision.”

Power said he agreed with Williams that there’s no question that marijuana is being used for medical purposes.

However, the state uses different standards to determine whether a drug should be removed from Schedule 1 classification.

The state’s Board of Pharmacy administrator is supposed to consider a drug’s “relative potential for abuse” and the “potential of the substance to produce psychic or psychological dependence” before removing it from the list.

“Now, if those are the standards — those are pretty general. And you could make arguments under all of those about marijuana, couldn't you?” Power asked at the hearing. “I mean, actual or relative potential for abuse. There's — there's potential for abuse. We see people who abuse marijuana, don't we?”

Grand Traverse County Prosecuting Attorney Robert Cooney said he believes marijuana’s designation as a Schedule 1 drug is federal policy and is beyond the purview of county courts.

Anyway, he said, state legislators knew what they were doing when they made it illegal to drive with any Schedule 1 controlled substance in your system.

“They could have decided to exclude marijuana; they could have excluded other Schedule 1 drugs, but they chose not to,” he said.

THE DOUBLE LIFE OF DRUGS
Williams also failed to persuade Power that the state’s marijuana law violates the equal protection clause, but Power questioned whether it is good law.

Power said he believes it is possible to think of a drug in two ways and to treat different kinds of users differently. Opioids, for example, have that double life: They are sometimes obtained legally and used according to a prescription, and they are sometimes gotten illegally and abused.

“People — sometimes they get them by prescription for medical use, and sometimes they get them down at the Open Space and buy them illegally or steal them from somebody's medicine cabinet — that happens all the time,” Power said at the hearing. “And the nonmedical use — nonprescription use of those narcotic painkillers is treated differently than the use of narcotic painkillers pursuant to a prescription, isn't it?”

Frederik Stig-Nielson, a lawyer who was working with Williams at the hearing, argued that that’s the way the drugs are looked at under the Controlled Substance Act, but they should be viewed differently when it comes to the Motor Vehicle Code, because the purpose of that code is public safety.

“It is not any safer for a person who's been prescribed — or who has a certification and who's participated in the Michigan Medical Marijuana program — it's not any safer for that person to operate a motor vehicle than it is for someone who has not been certified,” Stig-Nielson argued.

Tholen argued that there’s a legitimate purpose for the government to distinguish between recreational and medical users. They do it to encourage safety on the roads, to get abusers into treatment, and to discourage illegal drug use.

Power wasn’t entirely persuaded.

“Okay. But if — if we're concerned about highway safety, which is a real reason for intoxicated driving laws — if we're concerned about highway safety, why is it safe for people to drive with substantial amounts of marijuana, but not enough to be intoxicated, in their system if they've got a medical marijuana card? That's OK. That's safe,” Power said.

Others, he said, would violate the law with “the presence of even a miniscule amount of active marijuana,” he said.

But Power ultimately rejected the motion, saying it was a matter for legislators to decide.

“It passes the rational basis test,” he said of the double standard. “Which is not to say it's fair, or it's right, or it's a good idea — those are all issues for the legislative process, not — not for a court.”

“THE ONLY SAFE LEVEL”
Cooney said he thought the equal protection argument is more difficult to rebut because Williams makes a good point about how Michigan has decided to treat different marijuana users differently.

“That’s a little bit more interesting argument,” Cooney said. “That’s the thing — it really doesn’t make much sense. Either it’s bad to have THC in your system and drive, or it’s not.”

The case that changed Michigan law and created a different standard for medical marijuana users came from Grand Traverse County — the People v. Rodney Koon — and, as that case wound through state courts between 2010 and 2013, Cooney fought to maintain a zero-tolerance standard even for medical marijuana users.
Cooney said the means for measuring medical marijuana intoxication are flawed.
“The reason the legislature said zero, that’s the only safe level, is because, the fact is … we don’t have good science to show what a safe level of marijuana is,” he said. “Some states set artificial limits, limits that, really, there is very little science to support.”

In the Koon case, Koon’s blood test showed 10 ng/mL of THC, but he had a medical marijuana card, and his charges were dismissed because Cooney determined he wouldn’t be able to prove impairment. In the Greenwood case, there is no evidence that she was impaired after the crash, and yet she faces a felony charge after her test revealed a THC level of 1 ng/mL.

Is it justice that Greenwood had one-tenth the level of THC that Koon did, showed no sign of impairment, and still faces a felony charge?

Cooney said the cases are different, and Greenwood was tested hours after the crash and might well have had a much higher level at the time of the crash. (Williams noted that no one has disputed Greenwood’s contention that she had smoked the night before the crash.)

Also, Cooney said, the cases are different. Koon was pulled over for speeding; Greenwood caused a crash that killed someone.

“What I do know in the Greenwood case is that she crossed the centerline, and she killed someone, and she seriously injured another person as a result of an error in driving,” Cooney said. “To simply state that, well, she was a one, and he was a 10 — that’s taking a lot of facts out of the equation.”

SOMETHING DIFFICULT TO MEASURE
The Impaired Driving Commission was supposed to be established by June, under the law that was enacted in March and gave Gov. Rick Snyder 90 days to name a forensics toxicologist, a physician, a state police representative, a medical marijuana patient, and two professors from different Michigan public research universities.
Snyder spokeswoman Tanya Baker said in an email: “No appointments have been announced yet. The time it takes to find and vet qualified candidates varies with each commission. In this case, the vetting process is nearing completion, and we expect to announce the appointments soon.”

Josh Hovey, spokesperson for the Coalition to Regulate Marijuana Like Alcohol, the group behind an effort to get marijuana legalization on the November 2018 ballot, said his campaign supports a zero-tolerance approach to impaired driving. He said he hopes tests improve and one day will be able to actually show whether a person is under the influence or not.

“There should be better testing that can determine whether someone is impaired or not, similar to what we have for alcohol, but unfortunately the science isn’t there yet,” Hovey said.