Roadside THC Testing: In Or Out?
Activists and advocates are eager to see the amended version of Michigan’s HB 5385 when the House Judiciary Committee takes up the bill in an unusual third hearing on Thursday, May 15. Word from Lansing’s Capitol Loop is the oral swab testing program will be eliminated from the bill via amendments during Thursday’s hearing- but we’ve heard that tune before.
On the morning of the legislation’s second hearing May 8th, bill co-sponsor Rep. Michael Callton, R-Nashville, was quoted in the Detroit Free Press as saying he would submit an amendment negating the saliva testing program. Instead an amendment was submitted by bill sponsor Rep. Dan Lauwers, R- St. Clair, allowing the Michigan State Police to conduct an experimental three-year pilot program which would ”potentially interfere with Michigan Medical Marijuana patients due process,” said Robin Schneider of the National Patients Rights Association (NPRA).
The amendment was unexpected, catching both legislators and advocates from the medical marijuana community by surprise. Shocking events are not new to the process of cannabis law reform, nor to the evolution of this bill.
At the first HB 5385 hearing Ben Horner of the Cannabis Stakeholders Group suggested legislators should consider imposing a 5 nanogram THC driving limit on regular citizens and an 8 nanogram THC threshold for medical marijuana patients. That same 5 nanogram threshold was cited by Ken Stecker of the Prosecuting Attorneys Association of Michigan during the second hearing- chilling news to a medical marijuana community that has seen similar programs used against patients in states like Washington.
Questions were raised about the lack of a funding source for the pilot program and inconsistencies in language between the the amendment and the bill. Only one marijuana community advocate was allowed to testify but several Committee members had questions that were met with murky answers. Committee Chairman Rep. Kevin Cotter, R- Mt. Pleasant, tabled the bill- and the amendment- after the second hearing, citing confusion over the amendment’s language and intent.
This latest news of the potential elimination from HB 5385 of the roadside saliva testing for THC and other drugs comes as a result of meetings involving the NPRA, the Criminal Defense Attorneys of Michigan, PAAM, the Michigan State Police and other stakeholder groups this week. ”It needed to be clarified that the medical marijuana community did not support the pilot program because there was the potential for medical marijuana patients to be wrongfully arrested during the pilot program. There are also several concerns about the lack of accuracy and the FDA’s disapproval of the saliva tests,” Schneider explained to TCC.
Under a proposed compromise any saliva testing program implemented in Michigan will have to come via separate legislation and will have to “outline substantial compliance, right of refusal and funding sources,” Schneider told The Compassion Chronicles. Ben Horner was contacted by TCC for this article; he refused to comment on the record, leaving unanswered any question as to the role of himself and the CSG organization in the negotiations that led to this apparent solution.
HB 5385 is part of a three-bill package submitted by Rep. Lauwers. “The purpose and intent of these bills is to improve communications between law enforcement agencies when dealing with drugged drivers and getting repeat offenders off the streets,” Rep. Lauwers told Committee members during the bill’s second hearing on May 8th.
A provision authorizing roadside saliva testing through the use of oral swabs and an in-car computer system was added to the bill after it was drafted. The amended bill contains language that would remove a citizen’s right to refuse without penalty a roadside physical manipulation and agility test used by police trained as Drug Recognition Experts (DRE)- a new consequence created via the pilot program amendment.
The test results are subjectively evaluated by the DRE officer, who can order a blood test to verify intoxication if they decide the subject failed the test. Currently persons can refuse the roadside testing without penalty- and that’s a good thing, said Mike Nichols of the Nichols Law Firm, who was present at the second hearing and participated in the negotiations described by Schneider. The Nichols Law Firm and their attorney Josh Covert has been active in defending patients in marijuana cases and in custody-related battles, including the international media story surrounding the removal of Baby Bree from her parents in Michigan- and that child’s subsequent return to her parents, Steve and Maria Green of Lansing.
HOUSE JUDICIARY COMMITTEE HEARING- HB 5385, 6 other bills
9:00 am, May 15, Anderson House Building Room 521
To view text of legislation go to:
Individuals who wish to bring written testimony need to supply a minimum of thirty copies for distribution.
Individuals needing special accommodations to participate in the meeting may contact the Chair’s office.