FARMINGTON- A pilot program allowing the Michigan State Police and special Drug Recognition Experts to administer a roadside test to detect the presence of THC in a person’s saliva was approved in Michigan. Although the bill creating this program was passed by both House and Senate, it had to overcome stiff resistance to do so. A previous effort to curtail legislation like this was defeated in the House during the 2013-2014 legislative session due to pressure from activists (including this author), attorneys and lawmakers.
Rep. Jeff Irwin (D-Ann Arbor) was a member of the Committees that heard the bills in the House in both the previous and current sessions. He joined the staff of the Planet Green Trees Radio Show (PGT) on June 23 to discuss the passage of this bill, among other things (see OTHER ARTICLE WITH LINK).
PGT is hosted by Farmington attorney Michael Komorn, who asked the Representative to fill in the details. “I know it passed. I know it’s not based on science or logic… it’s based on ‘The Earth Is Flat’ principles.
“You spoke out about it,” Komorn said to the Representative. “Who were the agencies lobbying for that?”
“That was primarily law enforcement, the prosecutors, you know, the same network of groups that were pushing for this are the same ones who are pushing against the medical marijuana bills,” Rep. Irwin replied. “There even seemed to be some talk that, hey, the Senate’s going to move the dispensary and the edibles bills and the House is going to move these Senate bills for them that provide these roadside saliva tests… there was a linkage between those bills…” The two bills are HB 4209 and HB 4210, which were stalled in the Senate Judiciary Committee until recently and are dormant until after the legislature’s summer recess.
“You know that I oppose (the tests). The amazing thing to me is… the Detroit News Editorial Board came out very strongly against these tests, arguing along the same lines as many of us who oppose them… I was quite shocked to see the Detroit News take opposition to the bills.” The News is a widely-read, generally conservative newspaper who typically support Republican platforms.
During Committee testimony, the MSP representatives did provide some details of the program. “The bill provides for this pilot to be rolled out in five counties, and then later in another five counties if they decide to do that,” the Representative explained.
“They said they were going to pick a mix of rural, urban and suburban locales to try to make sure they were getting a look at something that was more representative. They did not have anything in the legislation that would define anything that would look like success, in the context of a pilot, which would then be used to determine whether or not they should roll it out into another five counties or not. That was a real weakness in the approach.”
The roadside pilot would require participation by citizens, under penalty of a civil infraction ticket for refusing to comply. “We’ll see how those pilots roll out; we’ll see how the courts handle the constitutionality of even those civil infractions that might be issued to individuals who might refuse a test of questionable validity. We’ll see where it goes.”
“There is no magic number; these tests- what are they proving?” Komorn asked. “What are they showing- just the presence of (THC)? They are not giving a number.”
In truth, the reporting from the tests may be a simple yes or no to the presence of THC. Or it may be a number. We don’t know, because the MSP have not selected a test yet. There are a variety of products on the market, each with their pros and cons, each with different tolerances. Some test well for some things and not so well for others.
The methodology of the testing procedure itself was explained by Rep. Irwin as an extremely subjective process. “What they are hoping to prove is that, these tests work. They are hoping to prove that the tests work by administering the roadside swab, obtaining the result and then having the drug recognition expert, this officer that’s been trained with this particular flavor of training, will also be there to provide their that assessment which they are hoping will line up with the results from the test to demonstrate yes, since our drug recognition expert says this person was impaired and this test produced a result of X or Y, therefore we know that the result of X or Y is going to line up with impairment.”
“The problem is, this is not a proper test with a double-blind setup that you would use to test the quality of, say, a drug or something, like by the FDA.”
Administration of the test also raises issues of impartiality. During a roadside sobriety check, a DRE officer will supposedly wait until they have obtained the swab results before electing to charge the driver with a crime. “If the swab is administered and it says the person has five units of cannabis, or five units of opioids, on their oral swab, the Drug Recognition Expert is going to know that and is going to be influenced by that when they make their determination of is or is not impaired,” Rep. Irwin told the PGT audience.
“We all know how powerful suggestion is in humans, and we know that what’s going to happen is that these drug recognition experts are going to agree with these test results, at least that is what I suspect is going to happen, and they are going to try to use that to bootstrap it into a result that, hey, these tests are worth relying upon.”
The influence of the test on the trooper’s decision regarding a driver’s level of impairment could play into the prosecution and defense of any cases of intoxicated driving arising from these ‘pilot program stops.’ “I think there are groups like the criminal defense attorneys who are going to be looking at this and they are going to watch the process over and try to find ways to use the data developed by the pilot to reach a different conclusion.”
During some dialog with PGT on-air regular Jim Powers, myself and Komorn, Rep. Irwin revealed that the legislators were told that the pilot program swab analysis machines could quantify the amount of cannabis in your saliva- delivering a number or score similar to the way a breath test for alcohol works- and that it did not detect the inactive metabolites that linger in a person’s body for days after consumption.
“Is there any data or evidence that they are submitting in terms of the severity of accidents because of marijuana driving or patient drivers?” Komorn asked.
“No, and I asked questions in Committee about what evidence they had about impairment levels of all the various substances that these little swabs apparently can detect… they really weren’t able to give any answers for any of those questions,” Rep. Irwin complained. “They basically just said, ‘Hey, look, this thing what it does is it’ll tell ya how much of various substances are in a person’s saliva. Whether or not they are impaired, that’s not our expertise.”
In a roadside stop, the decision on impairment rests with the officer; in the case of the pilot program all the officers administering the roadside saliva test will be Drug Recognition Experts.
MSP testimony revealed that the testing company had not yet been chosen, per Rep. Irwin, which raised additional issues of credibility. In a market full of new start-up companies working with emergent technology, not every company has the same standard nor are their tests equally proficient at detecting substances.
“They are going to do a whole RFP process that is going to be open to anyone to apply. There was one company that showed up at the hearing and gave out brochures for their equipment.”
In deciding which counties might qualify for the pilot program, Rep. Irwin speculated on what was laid out to the lawmakers in Committee. “What they are going to do is they are going to roll this out by lining up these machines and/or testing sticks with deployment of the relatively small number of drug recognition experts in Michigan and do that within those counties. I think it will be somewhat determined by where their deployment is currently of those troopers are in terms of which posts they are working out of… I really have no idea.”
“Without a specific designee, it’s almost impossible for them to make a credible statement about what the tests will and will not accomplish or what it will and will not test for,” I added.
The Representative agreed. “In committee they were saying they were going to try and pick something that would test for a wide variety of substances. I kept trying to ask questions about, well, what is it you are trying to catch because from my understanding these different companies have products that are more or less good at identifying different substances. So, what is it you’re looking for?”
In researching a company that Rep. Irwin mentioned by name as vying for the saliva test, PGT staffers found an interesting connection. “We can’t confirm it, but the company that was mentioned… is a company that owns private prisons,” Komorn observed at the end of the show.
In describing the businesses that service the police industry as the “correctional market,” Komorn observed that, “‘The more laws we make, the more people get violated of it.’ That’s their pitch. It’s sickening.”
“Some of us remember back in 2012, when this issue first came up,” I reminded listeners. “The Michigan State Police said, ‘We went to this convention in California and this guy told us this great story about this wonderful machine and we want to bring it in for a pilot program.’ And that’s how they described discovering this whole process- they went to a cop convention in California and a slick salesperson sold them on the whole process, and they’ve been pushing it ever since. That’s my recollection of the origin of this entire issue.”
“They have yet to provide a causal link between marijuana and driving, as the AAA report illustrated,” said Powers.
Rick Thompson
Rick Thompson
CANNABIS MEDIA SPECIALIST
Named Citizen Activist of the Year 2015 by national media source
Print: High Times, Hybrid:Life Magazine, Culture Magazine, more
Internet: Editor, The Compassion Chronicles; contributor, The Weed Blog, more
Radio: The Planet Green Trees Radio Show, more
Activism: Michigan ASA, MiNORML and MiLegalize, Board member of all three
In 2010, Michigan State Police returned the medical marijuana they seized from our client during a traffic stop. The cannabis was returned after we obtained a dismissal of all charges in a court order directing the arresting agency to return the medical marijuana to our client.
Ginnifer Hency says that police raid led investigators to seize a couple of guns, a small amount of cash and cell phones with a lot of medical marijuana.
And also something very personal.
“My medicine for my patients, why a ladder, why my vibrator, I don’t know either,” Hency said during a Michigan House Committee meeting.
And that last part is creating quite the buzz – a story now gone viral and raising questions about Michigan’s civil asset forfeiture laws
“They’ve had my stuff for 10 months now,” she said.
Ginnifer and her husband Dean Hency say it all happened when their home was raided last July. They both are licensed medical marijuana patients and caregivers. They claim to be targeted by St. Clair County’s drug task force.
It began when Ginnifer says she walked into a medical marijuana licensing facility as it was being raided.
“They asked me how much medicine I had in my backpack,” she said. “I said six ounces then they said to get a warrant for our house.”
The havoc they wreaked,” Dean said, “they just threw stuff around. Just dirt dumped all over the place.”
“We were in complete compliance with the Michigan Medical Marijuana Act and they destroyed my house,” Ginnifer said.
But St. Clair County Sheriff Tim Donnellon says they were not, and added that officers did not take her vibrator and would never have a reason to.
He says aside from that allegation, the task force’s actions were justified and par for the course.
Even so, a judge dismissed the criminal charge of possession with intent to distribute against Ginnifer Hency two weeks ago.
But here’s what she says happened when she went to the prosecutor’s office to get her property back.
“Lisa Wiznowski who is the assistant prosecuting attorney said ‘I can still beat you in civil court, I can still take your stuff.'”
Michael Komorn is the Hencys’ lawyer.
“This is bully tactics,” he said. “We have your property we couldn’t get any charges to stick, we’re just going to keep it. drag it out.
“Here’s a person who they took her property and they couldn’t even make the charges stick let alone get a conviction. So if there’s an example of why there needs to be reform it’s this.”
“They left my (equipment) I used to grow ‘drugs’ – they left that,” Hency said when she testified. “Now that is what the state forfeiture laws are made for.”
The St. Clair County Prosecutor’s Office has about a week to appeal a visiting judge’s decision to drop those charges against Ginnifer Hency.
That civil case regarding her property still pending.
The sheriff, Tim Donnellon, says the drug taskforce has been in place for 30 years and has a 99 percent conviction rate. He says there was nothing unusual about this case except for Hency’s testimony about her vibrator which he claims is false.
DETROIT — Attorneys filed a federal class action lawsuit against the Michigan State Police crime labs this week, claiming its current marijuana reporting policy violates due process and Fourth Amendment rights and demanding it be thrown out for good.
This suit would have statewide impact, directly affecting the some 180,000 registered medical marijuana patients and anyone caught with marijuana in Michigan. Attorneys Michael Komorn and Tim Daniels filed the suit Tuesday with the U.S. District Court for the Eastern District of Michigan, Detroit Division.
They write the crime labs intentionally misreport marijuana as synthetic, as we saw in the Max Lorincz case in Ottawa County. A judge threw out his felony drug charge 16 months into the case; meanwhile, Lorincz’s 6-year-old son spent 18 months in foster care.
Lorincz is one of the four plaintiffs in the complaint.
But it goes further, writing that the 2013 marijuana policy in the labs was “made in an attempt to strip medical marijuana patients of their rights and immunities, charge or threaten to charge citizens with greater crimes than they might have committed, obtain plea deals and increase proceeds from drug forfeiture.”
“The fact that it continues to go on,” said Komorn, “it’s an outrage; it’s not science. The Michigan Medical Marijuana [Program] was supposed to be a shield, not a sword.”
Last fall, the MSP Forensic Science Division Director Captain Gregoire Michaud, whoquietly retired this May, made a presentation for the Wayne County Criminal Defense Bar. Michaud had said out of the crime labs’ $60 million budget, 40 percent was spent on testing marijuana. He said this caseload volume impeded their work on investigating other cases, specifically testing rape kits statewide.
Komorn reiterated this suit is working to dismiss this policy in the labs and rearrange the state police’s priorities.
“That’s one of the things that I’m hoping comes out of this, is that we turn the focus away from and onto the more, that we would all agree, serious crimes that we need full-on police investigation attention,” said Komorn.
The MSP Public Affairs Manager Shanon Banner told FOX 17 Wednesday they will not comment on a pending case, defaulting to their Nov. 2015 statement.
Later this year, the state police labs are up for their renewal of their international accreditation with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. It is likely the MSP’s crime labs’ marijuana misreporting allegations will be challenged during this process.
Michigan’s NORML chapter awarded some of the state’s most prominent and outspoken advocates for marijuana law reform during the organization’s Quarterly Meeting held on April 1.
MINORML issues these awards annually, and some are named for activists who have passed away.
Legislator of the Year Award went to Rep. Jeff Irwin (D-Ann Arbor). Rep. Irwin has advocated on behalf of sensible policies and has authored bills on forfeiture reform and marijuana law reform. The Renee Emery Wolfe Activist Award was given to Kevin McCaffery, a Board member of the MILegalize group and a steadfast ally in legalizing cannabis.
A new award, the Gaitwood Galbraith Attorney of the Year Award, was given to criminal defense attorney Michael Komorn. In addition to numerous courtroom victories, Komorn Law uncovered a scandal with scientific reporting of cannabis evidence by the Michigan State Police Crime Lab. Also new: the John Dewitte Evans Veterans Award, given for the very first time to Dakota Serna. Serna has traveled the country advocating for veterans and the use of medical marijuana.
The difficulties of starting a chapter in Michigan’s Upper Peninsula have seemingly been overcome by a group of diehards called the Marquette Work Group, and they were awarded the Gregory Scott Piasecki Work-Group/Chapter Award.
Activist and all-around great guy, Archie Kiel, was given the 420 Award. Outstanding Achievement Awards were given to MILegalize Chair Jeff Hank, Robin Puckett of Jackson NORML, and rising star Colin MacDougall.
The meeting was held at the Eagles Club in Ypsilanti on the afternoon before the Hash Bash and Monroe Street Fairs. Approx. 100 people attended the meeting, where the NORML chapter announces finances and allows anyone to address the Board with suggestions, praise or grievances. An auction held afterward featured a signed Detroit Tigers baseball, a magazine autographed by Tommy Chong, posters and clothing and artwork.
The big winner of the evening was Tom Gillies. A member of the Deaf Power Cannabis group, he won the ultimate High Times Medical Cannabis Cup prize package. Tom and a guest will be given VIP passes and a two-night stay at an area hotel during the annual Cup event in Clio on June 11 and 12. Michigan NORML provided a sign language interpreter for the meeting.
MINORML’s entire release is reproduced below.
The National Organization for the Reform of Marijuana Laws
P.O. Box 2293 ~ Kalamazoo, MI 49003
Michigan NORML would like to take this opportunity to thank all the award winners for their outstanding service to the cannabis community in 2015!
We would also like to thank everyone who contributed or made extraordinary contributions to cannabis reform who were not recognized!
We could have given out a thousand awards this year because our community is very active and so many individuals have demonstrated dedication to this cause. We thank all of you and we hope that next year, one of our awards will have your name on it!
Rick Thompson was the Editor in Chief for the entire 2-year run of the Michigan Medical Marijuana Magazine, was the spokesman for the Michigan Association of Compassion Centers and is the current Editor and Lead Blogger for The Compassion Chronicles. Rick has addressed committees in both the House and Senate, has authored over 200 articles on marijuana and is a professional photographer. He can be reached at: 4mrick@gmail.com
CLIO, MI – The attorney for the owner of a medical marijuana facility faced with the possibility being padlocked for a year questions why prosecutors are trying to have the business declared a nuisance.
Attorney Michael Komorn said he doesn’t understand why prosecutors are trying to close the Clio Caregiver Connection as a nuisance even though the community hasn’t come forward with complaints.
“It appears that the main allegation regarding ‘a nuisance’ comes from the drug task force and not the local police agency or community leaders or citizens,” Komorn said.
Genesee County Prosecutor David Leyton filed a nuisance ordinance violation March 3 against the business after an investigation by the Flint Area Narcotics Group alleged the business at 105. N. Mill St. was acting outside of the state’s medical marijuana act.
FANG began its investigation into the facility Sept. 22, after receiving information that the facility was acting as a dispensary, according to the violation complaint.
“It appears as if FANG and FANG alone are the persons complaining of the behavior and will testify about that behavior justifying any injunctions,” Komorn said. “Instead, FANG warrants an injunction for their behavior, and the complaint of nuisance in this case.”
State law allows officials to padlock a property for up to a year over complaints of drug dealing.
Three separate controlled purchases of marijuana were conducted at the business, according to the complaint. The purchaser was a medical marijuana patient, but no person present at the facility was the registered caregiver for the buyer, the complaint claims.
State law allows individuals to serve as caregivers for medical marijuana patients, allowing them to possess up to 2.5 ounces of useable marijuana or 12 marijuana plants for each of their registered patients. Caregivers are allowed to have up to five registered patients.
Search warrants were obtained for the facility and executed Feb. 18. Officials claim they discovered multiple jars of marijuana in cases listed for sale, edible marijuana items, THC wax, suspected psychedelic mushroom cultivation, suspected LSD tabs in the business owner’s vehicle, 12 marijuana plants and $860, according to the complaint.
Komorn also took issue with Leyton filing the complaint, claiming it contradicts prior statements from the prosecutor.
“The restraining order action seems absurd in light of David Leyton’s declaration that he will only review cases where the ‘community’ brings it to him or his office,” Komorn said.
Leyton said Komorn took his statements out of context, and said he would review any case brought to him by law enforcement.
A temporary restraining order was issued this month against the business by Genesee Circuit Judge Archie Hayman after authorities alleged the business continued operating even after the warrants were executed.
On Monday, March 28, Hayman agreed to continue the restraining order until a hearing is held on the padlocking of the business.
The business’s owner did not appear in court for Monday’s hearing. His name is not being released because he has not yet been arraigned on the suspected crimes.
The case will return to court April 25 when Hayman will be asked to decide if the business can be padlocked for up to a year.
