Koon and false positive: Can the MSP lab distinguish the ‘real thing?’
By Michael J. Nichols
A conflict between the Michigan Medical Marijuana Act (MMMA) and the Michigan OUID statute played out in a Michigan Court of Appeals case decided on April 17, 2012. The court ruled in People v Koon, (2012 WL 1319472) that a person violates the law if there is “any amount” of THC in his blood whether the person is a medical marijuana patient or not. In my opinion, the ruling places a greater burden on the Michigan State Police Forensic Science Division to demonstrate that its cutoff levels are reliable. Cutoff levels are the levels a lab decides it has detected in a substance and then analyzes the concentration of the substance.
The MMMA was enacted in 2009 after a voter-initiated ballot initiative to allow certified patients to use marijuana for medicinal purposes. The initiative passed by a 2/3rds majority in 2008. The statute provides immunity from prosecution for possession, manufacture or use of marijuana to a person who possesses a valid medical marijuana card. The statute also provides that a non-registered cardholder who has been advised by a doctor to use marijuana to treat conditions may assert the defense if charged with possession, use or manufacture of marijuana. MCLA 333.26421 et seq. The statute prohibits a person from operating, navigating or having actual physical control of a “motor vehicle, aircraft or motorboat while UNDER THE INFLUENCE of marihuana (sic),” MCLA 333.26427.
The “under the influence” language was the key phrase at issue in the Koon litigation. The MMMA prohibits a person from operating or having actual physical control of a motor vehicle under the influence as opposed to operating or having actual physical control with “any amount” of a schedule 1 substance (THC) in their system. Mr. Koon was stopped while speeding, admitted to consuming 1 beer and ultimately, volunteered that he possessed a pipe used for smoking marijuana, was a medical marijuana patient and card-holder and that he smoked within approximately 5 hours of driving. An analysis by the Michigan State Police lab reported the presence of THC in Mr. Koon’s blood.
The Michigan Court of Appeals held that a patient who uses medical marijuana with a valid certificate still has no right to operate a motor vehicle after medicating. The court found that the Michigan legislature did not create a clear exception for medical marijuana patients to drive and that appears to be what the opinion focused on.
The difficulty of any measurement system to detect THC at lower levels means that the current battle must be waged on whether the MSP lab analysis is a false positive. However, unless the state supreme court overturns the court of appeals or otherwise finds (8) of MCL 257.625 unconstitutional, the focus is on the science. The act of ingesting a substance that may smell like marijuana is not illegal unless the prosecutor proves that the marijuana contains the THC-producing component.
There is always a chance of a false positive. The question is the probability behind that “chance” of a false positive. Geoff French, the current supervisor of drug toxicology testing at the lab, recently testified that there was absolutely “zero” chance of a false positive. The reason: the data for that case was very “nice.” The MSP cutoff levels for THC are .1 ng/mL for the level of detection and 1 ng/mL for the limit of quantitation.
The lawyer should always demand raw chromatography data from the MSP lab in light of the so-called “zero tolerance” regime reaffirmed by the court of appeals in Koon. The lab must demonstrate with scientific reliability that the cutoff levels for declaring the presence of THC are relevant and reliable. In other words, does the gas chromatography mass spectrometry system in the lab have the demonstrated ability to detect THC at 1 ng/mL if that is the limit of quantification?
The limit of quantification means the smallest “amount” at which a measurement system can measure a compound as distinguished from noise. The limit of detection is the smallest amount that a measurement system can identify the presence of a compound as distinguished from something else. Why did the lab choose a particular limit of detection or limit of quantification? Did it use predefined goals based on all the sources of bias and imprecision? (Please see Armbruster and Pry) The lawyer should press the analyst and the lab to demonstrate the science behind the limit of detection and quantitation before allowing the data to be admitted into evidence.
As of this writing, the lab has not produced data to demonstrate how its administration determined .1 ng/mL as the level of detection and 1 ng/mL as the limit of quantitation. It has also not demonstrated that the method the lab uses for THC analysis is able to detect and measure THC at these levels with an acceptable degree of uncertainty.
It leads one to wonder: if “any amount” is the legal standard—is that consistent with the scientific standard at least as science is practiced in the Michigan State Police forensic science division.
Michael J. Nichols, of The Nichols Law Firm PLLC, focuses his practice exclusively on complex OWI/OWID cases and other select criminal and other litigation matters. He is the author of the “Michigan OWI Handbook” published by West, chairs the Ingham County Bar Association Criminal Law section and is a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, The Criminal Defense Attorneys of Michigan and the State Bar and Ingham County Bar Association’s Criminal Law Sections. www.michiganduidefender.com.