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Drug tests administered by state police failed to distinguish between THC and CBD, a non-psychoactive chemical compound in marijuana.

SHUTTERSTOCK

Michigan State Police locked up more than 3,000 people using faulty marijuana tests, according to internal memo

MICHIGAN STATE POLICE relied on faulty testing to produce criminal charges in about 3,250 cases since March 2019 in which a driver was allegedly under the influence of marijuana and no other drugs or alcohol.

In a letter to prosecutors sent last Wednesday, Jeffrey Nye, director of MSP’s Forensic Science Division, acknowledged that the tests could not have conclusively proven the driver was intoxicated by cannabis.

The letter was issued less than a week after Michigan State Police halted blood tests for marijuana because they were producing false positives for THC, the active ingredient in cannabis that produces a high. The toxicology tests failed to distinguish between THC and CBD, a non-psychoactive chemical compound that does not produce a high.

The significance of this discovery cannot be overstated. As many as 3,250 people may have been wrongfully arrested and convicted based on faulty testing.

In those cases, Nye admitted, “there is insufficient evidence of impairment, intoxication, or recent use of marihuana to otherwise support the charged offense.”

State police plan to notify prosecutors about the people who may have been wrongfully convicted, and defense attorneys are expected to begin filing motions to challenge their clients’ convictions.

“Most immediately our concern was for the impact this finding may have on active legal proceedings where an individual allegedly used CBD alone and no other intoxicating substances,” Nye said.

State police are only focusing on cases since March 2019 because that’s when CBD became legal in Michigan, according to Nye. But attorney Barton Morris, who specializes in cannabisrelated cases, said it’s still possible that many others were wrongfully convicted of driving under the influence because they had consumed CBD prior to March 2019.

Morris, principal attorney of the Cannabis Legal Group in Royal Oak, says state police have relied on a relatively inexpensive testing method that is unreliable for testing the amount of THC in a person’s blood, producing a measurement uncertainty — or an error rate — of 30%.

“Michigan State Police created a method for testing THC in a manner that wasn’t great, but it was good enough for them because no one was complaining about it,” Morris tells Metro Times. “It’s expensive to test it for more specificity, and they would rather do it the cheaper and faster way. They created a method that was questionable as to the precise amount of THC in their blood.”

He adds, “It was intentional ignorance. They stopped the testing when they could no longer ignore” the problems.

Morris says convictions that were based solely on the faulty testing should be overturned.

“People like me contemplate to what degree does this invalidate the ability to remove convictions over the past three years,” Morris says. “Any conviction where the (lab) evidence was the main piece of evidence in determining someone’s guilt or innocence, there’s a strong argument that the conviction should be overturned.”

With the widespread use of CBD over the past three years, Morris says it’s likely that many people who were convicted based on faulty testing had solely consumed CBD and were not under the influence of THC.

But the problem goes well beyond that. Morris and other legal experts have long complained about the accuracy of marijuana tests. Due to varying tolerance levels, the amount of THC found in drivers’ blood does not prove they were intoxicated when they were behind the wheel. For example, a cannabis consumer can have moderate to high levels of THC in their blood and not be under the influence.

The effects of cannabis don’t last long, but the THC lingers in the user’s blood, where it can be detected.

“There is no amount of THC in a person’s blood suspected of driving under the influence that equates to intoxication like there is with alcohol,” Morris says. “We all know that .08 grams of alcohol per 100 milliliters of blood means you are guilty. There’s overwhelming evidence. We don’t have that in Michigan for TCH for a number of different reasons.”

–Steve Neavling

Opinion: The Michigan GOP is too extreme to govern

I am a former Republican state representative, and I am distraught by what has happened to my party

I SERVED IN the Michigan state legislature as a Republican for six years. I had heated — but congenial — debates with then-state Rep. Gretchen Whitmer and other Democrats. This was the tradition of bipartisanship and common sense I was proud to carry forward. Now, as I watch as a private citizen, I am distraught by what has happened to my party.

The Michigan GOP has devolved into a party of extremists and conspiracy theorists. The nominations of Tudor Dixon and Kristina Karamo make this clear.

Now that the primary is over, Dixon is playing herself off as a moderate. She is anything but.

When asked whether she believes Trump legitimately won the 2020 election in Michigan at a debate in May, Dixon answered with an unequivocal “yes.” At a debate the following month, she raised her hand when asked whether she believes Trump won the election because of widespread voter fraud. Never mind that Trump lost Michigan by 154,000 votes.

There’s a reason Trump endorsed Dixon. It’s the same reason he endorses any candidate — she pushes the Big Lie.

Dixon has repeatedly spread false claims of election fraud in Michigan. On Nov. 8, 2020, Dixon tweeted, “Steal an election then hide behind calls for unity and leftists lap it up.” Last October, she said that Michigan Secretary of State Jocelyn Benson ran the 2020 election “in a way that was rife with fraud” and said she did so with “premeditation.”

It wasn’t just rhetoric that she was fomenting. Dixon supported a “forensic audit” of the 2020 vote even after numerous state officials and independent sources disproved the conspiracy theory that the election was rigged.

It’s no wonder Dixon is a conspiracy theorist. She used to work for Real America’s Voice, the same streaming channel the far-right podcaster Steve Bannon is on. Her background in right-wing media shows on the campaign trail. She’s in favor of a Florida-style “Don’t Say Gay” bill. She referred to Whitmer’s tenure as a “tyrannical reign.” After her primary win, she mocked Whitmer as “a far-left birthing parent.” In other words, Dixon is resorting to culture wars and divisive rhetoric rather than appealing to all Michiganders.

There is no issue on which Dixon is more extreme than abortion. She wants to ban abortion — with no exceptions for rape or incest. And she supports Michigan’s 1931 law that makes having or conducting an abortion a felony. She called it “a good law.”

In an interview, Dixon said a 14-year-old victim of incestual rape was a “perfect example” of someone who shouldn’t have an abortion. “A life is a life for me,” she said. “That’s how it is.”

Look, I’m pro-life, but Dixon’s position on abortion is too extreme for me and it’s too extreme for Michigan voters.

Republican secretary of state nominee Kristina Karamo is even more unhinged than Dixon. Karamo said that anyone who supports reproductive rights “must worship Satan,” accused Democrats of having a “satanic agenda,” called abortion “child sacrifice” and “a very satanic practice,” and said that demonic possession can be transmitted through “intimate relationships.” And on her podcast, she said, “Men and women no longer honor God. They honor their crotches.”

Does this sound like someone who should hold elected office?

The lunacy doesn’t end there. Karamo has called herself an “anti-vaxxer” and condemned public schools as “government indoctrination camps.” To make matters worse, Karamo spoke at a QAnon conference last year. In case you don’t know, QAnon adherents believe that Democrats are Satan-worshipping cannibals who run a child sex-trafficking ring.

But even more frightening is that Karamo, if elected, would have control over our elections. Like Dixon, she has perpetuated Trump’s lies about the 2020 election. She falsely claimed that Trump won Michigan in 2020. A day after the Jan. 6 insurrection, she assigned blame to “Antifa posing as Trump supporters,” adding, “I mean, anybody can buy a MAGA hat and put on a T-shirt and buy a Trump flag.”

And, apparently, anybody can win the GOP nomination for secretary of state, no matter how deranged they are.

Our state is in trouble. The Michigan state legislature is already in the hands of Republican extremists. If Dixon and Karamo win, there will be no check on Republican power in the state. That could have dire consequences.

The state legislature could — and likely will — enforce the 1931 abortion ban and attempt to overturn future elections. And if Trump runs in 2024 and loses, he and his allies could attempt to overturn the election results, setting off a constitutional crisis. After all, Republican state legislators already voted to overturn the 2020 election results. There will be no stopping them next time if the governorship and the office of the secretary of state are in Republican hands.

–Susan Tabor

Susan Tabor is a former Republican Michigan state representative. She lives in Lansing.

Michigan GOP canvassers block abortion rights ballot initiative, citing spacing between words

THE MICHIGAN BOARD of Canvassers last Wednesday deadlocked on certifying a ballot initiative to protect abortion rights.

The bone of contention? The space between the words on the amendment.

Republican Canvassers Tony Daunt and Richard Houskamp rejected the abortion rights initiative because of typographical errors, saying the amendment lacked sufficient space between some of the words.

“The bottom line is that the full text of the amendment must be accurate,” Eric Doster, a lawyer for the group opposing the initiative, told canvassers. “It contains nonsense passages, and nonsense can’t be put in the Michigan constitution.”

The 2-2 vote means supporters of the ballot drive will go to court in hopes of getting the initiative on the November ballot.

The Reproductive Freedom for All initiative would amend the state’s constitution to affirm abortion rights.

The Michigan Bureau of Elections recommended certification.

Democratic canvassers and attorneys for the initiative said Republicans had no basis for rejecting certification.

“There are no typos. There is a spacing issue,” said Steve Liedel, an attorney for Reproductive Freedom for All. “Do you possess the statutory authority to disapprove this petition on a form requirement that is not addressed in any way under Michigan law? If you do this, you are setting a precedent that you can disapprove a petition without any basis in the statute.”

Democratic Canvasser Mary Ellen Gurewitz said her Republican colleagues had no authority to reject the initiative based on spacing issues.

“The full text is there, and I think we have no choice but to certify,” she said.

To make it on the November ballot, the initiative must be finalized by Sept. 9.

The coalition behind the initiative submitted a record 753,759 signatures.

Without a constitutional amendment, abortion could soon become illegal in Michigan. In May and August, the state’s 1931 abortion ban was temporarily halted by a Michigan Court of Claims judge who is presiding over a lawsuit by Planned Parenthood that argues the state’s constitution protects abortion rights. In a separate case, Gov. Gretchen Whitmer is urging the Michigan Supreme Court to weigh in on the issue.

Earlier Wednesday, the Republican canvassers also rejected a ballot initiative that would improve voting access.

–Steve Neavling