By MAXWELL EVANS
Capital News Service
LANSING — A proposal to ban people high on marijuana from possessing firearms is pending in the House, but some law enforcement experts say there are too many questions around how marijuana affects the body to make such a move.
Bills sponsored by Rep. Jim Lilly, R-Park Township, would criminalize possessing a firearm if a person has more than two nanograms of tetrahydrocannabinol (THC) per milliliter in their blood. THC is the chemical in marijuana that makes you high.
Six states and Canada have set impaired driving thresholds for THC blood levels. None have set such limits on firearm possession, although the 9th U.S. Circuit Court of Appeals ruled in 2016 that a federal ban on gun sales to medical marijuana patients does not violate the Second Amendment.
Lilly did not respond to repeated requests from CNS to explain the legislation. He told Gongwer News Service he introduced the bills to “start a conversation” around marijuana and guns. The proposal comes after Michigan’s Impaired Driving Safety Commission cautioned against using THC level limits to measure marijuana impairment.
Because frequent marijuana users can develop a tolerance to THC, the same amount of the chemical in the blood may affect individuals differently, according to the commission’s report. The commission recommended against the use of THC levels in favor of roadside sobriety tests to determine if a driver is impaired.
The Legislature should consider the commission’s advice, Michigan Sheriffs’ Association Executive Director Blaine Koops said. With so much uncertainty around how THC blood levels equate to one’s impairment — and with the chemical’s ability to remain in the body for about a month — he said he’d rather see lawmakers base their solutions on scientific evidence than rush to regulate the issue.
The law enforcement community has “all these questions out there and they’re not being answered,” Koops said. “How can we respond if we don’t understand what the issue is?”
Unlike the straightforward nature of blood alcohol content, measuring marijuana intoxication presents an entirely different set of problems, said Robert Stevenson, executive director of the Michigan Association of Chiefs of Police.
“Marijuana metabolizes inside people differently, so there is no bright-line number” for determining impairment, he said. Properly identifying when someone is high on marijuana requires special training.
The State Police’s program to become the most highly qualified specialist, called a drug recognition expert, requires a 112-hour commitment after 80 hours of prerequisite training. That means about a month spent away from the officer’s day-to-day duties. Experts are certified to conduct a twelve-step evaluation during traffic stops to determine what drugs the driver is likely on.
Enrollment in the program is regularly “maxed out,” Stevenson said. In 2019, a “pretty full” class of 21 officers received certification, according to the Office of Highway Safety Planning.
The Mason County Sheriff’s Office has one drug recognition expert, Sheriff Kim Cole said. Beyond that, the office has 12 Advanced Roadside Impaired Driving Enforcement officers — the middle tier of the state’s impaired driving training — out of its 16 road patrol officers on staff.
Although the department has “never really measured” the possession of firearms by people high on marijuana, Cole said he doubted if the legalization of recreational marijuana poses significant problems for the trained officers.
“Drawing a comparison to alcohol, we have very little issues with alcohol impairment and firearms,” Cole said. “I wouldn’t think that marijuana use and firearms would be a substantial issue — not that it can’t be, I just don’t see it.”
There’s also the question of how to measure the THC. Blood samples cannot be obtained roadside, and if drivers don’t consent to having their blood drawn at a hospital, a search warrant must be issued, Cole said.
That’s why the State Police piloted a program in Berrien, Delta, Kent, St. Clair and Washtenaw counties that uses a less-invasive oral swab. Oral fluid results would also be more credible and timely, given that it could be administered right at a traffic stop rather than off-site, the program’s report said.
Sixty-two traffic stops under the program resulted in an arrest for operating under the influence of a controlled substance, leading to 47 convictions as of December 2018. More than $600,000 was appropriated in the 2018 lame-duck session to expand the pilot program to additional counties.
To meet Lilly’s proposed two-nanogram-per-milliliter blood level limit, a person would have to test below about 88 nanograms of THC per milliliter of oral fluid, according to the report.
There’s potential for a lot of answers to come out of the pilot program, Koops said. But for now, since the program is only in the “beta testing” stage, it would be best to establish a single standard before the Legislature makes a move on regulating firearms and weed.
“We’ve got to look to the scientific community before we do anything legislatively,” Koops said.