Pot law creates haze for Michigan police on intoxication, black market

Legalized marijuana is creating concerns for local law enforcement agencies around Michigan, especially when it comes to increases in drugged driving and a lack of a clear standard to prove intoxication.

The state sheriffs and police chiefs associations anticipate complications in impaired driving enforcement, black market marijuana deals and the early retirement of police dogs whose snouts are trained to detect what is now a legal substance.

But the state’s own police force, while concerned about some consequences of the new law, is not worried about law enforcement's ability to address them.

“We’ve kind of been in this area before,” said Michigan State Police Lt. Mike Shaw. “During prohibition, we used to look for rum runners and then, when the law changed, we didn’t look for them anymore.”

If reports from Colorado law enforcement are any indication, the transition to recreational pot is anything but simple. The state legalized recreational marijuana in 2012, and the implications of the law continue to evolve, said Marco Vasquez, the former marijuana issues chair of the Colorado Association of Chiefs of Police.

“For law enforcement, we didn’t know what we didn’t know, and it continues to be that way,” said Vasquez, a retired police chief of the Erie Police Department. “We had no idea how complex this was going to be.”

Both state and local authorities in Michigan are worried about a potential uptick in drugged driving.

A University of Michigan Addiction Center study released two weeks ago indicates more than 50 percent of those taking medical marijuana for chronic pain have reported driving under the influence. The 790 medical marijuana users surveyed indicated they had driven within two hours of use at least once in a six-month period.

On Sunday, a 26-year-old man admitted he had smoked marijuana before he spun out on Interstate 75 near Davison in Detroit and struck a Michigan State Police SUV, according to State Police officials. 

The statistics and anecdotes are troubling and expected to rise with the legalization of recreational pot, an increase that Colorado experienced.

A hazy rule on intoxication

Police associations also are worried about the lack of a clear standard for what qualifies as intoxicated — such as the 0.08 blood alcohol content used in Michigan to establish drunkenness — and a reliable roadside test like an alcohol Breathalyzer.

While the legislation passed in November prohibited driving under the influence of marijuana, it failed to say what constituted intoxication. And because marijuana’s effects vary by person, it may be difficult to set a reliable standard.

Departments across the state have been training “drug recognition experts” in identifying drugged drivers, but so far about 140 of the roughly 18,000 officers in Michigan have received the training, said Bob Stevenson, executive director for the Michigan Association of Chiefs of Police.

The state police, while concerned about an expected uptick in drugged drivers, said the department has been making arrests for intoxicated driving involving marijuana for years and will continue to do so.

Nearly 90 percent of the department’s troopers are trained in advanced roadside impairment recognition, Shaw said, and the increasing presence of dash and body cams ensure police have proof of erratic driving and behavior.

“We’re not looking for a level,” Shaw said. “We’re looking for impairment.”

Still, having a breath or blood sample that clearly exceeds a given standard makes life easier in the courtroom, said Eaton County Prosecutor Doug Lloyd, secretary of the Prosecutors Association of Michigan. Having more drug recognition experts across the state could help to make up for the lack of a numeric blood level, he said.

“That allows us to go into court and talk about a person’s intoxication,” Lloyd said.

Police have known for some time about the need for a new blood or saliva test to detect marijuana intoxication and have been working to develop one, said Denise Pollicella of Cannabis Attorneys of Michigan.

“We’re going to also need to decide as a state and society how much THC in someone’s blood stream is too much,” Pollicella said. “Like alcohol, it may be an arbitrary number.”

Colorado developed a “presumptive inference” of five nanograms of THC per milliliter of blood so a person testing at or above that level could be considered intoxicated by a jury, Vasquez said. But, so far, defense lawyers have been quick to argue that chronic users could have a much higher tolerance level.

“It’s such a murky area,” Vasquez said.

What's next?

Vasquez doubted marijuana legalization would lighten the loads of Michigan police so they could focus on more dangerous drugs such as opioids and cocaine.

Following legalization in Colorado, the Denver Police Department had to increase the number of officers investigating illegal marijuana grows based on resident complaints and the department created a team that focused solely on marijuana, said Lt. Andrew Howard of the Denver department’s vice/narcotics section.

Overall, marijuana-related crime made up about 0.3 percent of all Denver crime in 2017. That year, the department investigated 56 murders, of which seven were related to illegal marijuana grows.

Burglaries at licensed marijuana facilities in 2016 reached well over 100, Howard said, but the next year they decreased 50 percent largely because of security measures adopted by the facilities.

Black market emerges

Soon after legalization in Colorado, Vasquez said, a “black market” emerged in which nonresidents rented houses in Colorado to grow marijuana that would then be shipped out of state for a higher profit.

“Unfortunately, Colorado has become the premier cultivation and distribution site for the United States,” he said. “It became very frustrating for law enforcement.”

Since Michigan is the first in the Midwest to legalize, opponents of the November ballot initiative have worried the state would see a similar influx in out-of-state interest.

“Marijuana crime is not going to stop now,” Shaw said, noting there are still limits to the legalized amount for private use and enforcement challenges on the commercial end. “It’s just going to change focus.”

State law now allows for the possession and transportation of up to 2.5 ounces of marijuana ― including up to 15 grams of marijuana concentrate. Individuals also can possess up to 10 ounces in a nonpublic place but can't use it in public.

Law enforcement officers also are concerned about gray areas of the law, said Blaine Koops, executive director for the Michigan Sheriffs’ Association. Are there limits to the size of the marijuana plants people can grow at home, where there is a limit of 12? Will the state’s regulatory framework explain how communities opt out of the commercial industry? Is there a way to ban open baggies of marijuana in a vehicle to match the state’s law banning open intoxicants?

“So much of this is going to be litigated over the next several years before we can actually get a picture of what’s expected of law enforcement,” Koops said.

The Department of Licensing and Regulatory Affairs may be tasked with setting up rules for commercial marijuana operations, but the department won’t be able to replace the Legislature’s role in clearing up some uncertainties in the law, said Oakland County Sheriff Mike Bouchard.

A former state senator who helped to enact enabling laws after state voters approved casinos in 1996, Bouchard said the Legislature must not lose time clarifying the gray areas of the law. Sending police to enforce the law while the vagaries remain is like sending a referee into an athletic competition without giving him or her a rule book, the sheriff said.

“They cannot sit on their hands for years again like they did with medical marijuana,” Bouchard said.

The Michigan Cannabis Industry Association said members are willing to talk with the state licensing department, law enforcement or lawmakers to address issues, but said time is one of the most important measures needed to implement the voter-approved law as intended.

“We want the initiative to be allowed to work as written before anyone goes in and tries to tweak it,” said Josh Hovey, an association spokesman.

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